Opinion
No. 77-1089
Decided October 5, 1978. Rehearing denied November 16, 1978.
Convicted of two counts of attempted introduction of contraband in the first degree, defendant appealed.
Affirmed
1. CRIMINAL LAW — Searches — Penitentiary Inmates — Permissible — Without Probable Cause — Conditions — No Cruelty — No Intent to Harass. Searches of penitentiary inmates conducted by prison personnel are permissible even if made without probable cause, provided such searches are not done cruelly or wantonly, and are not accompanied by any intent to harass, humiliate, or intimidate the inmate.
2. Body Cavity Searches — Penitentiary Inmates — Permissible — Without Probable Cause — Exception — No Reasonable Relation — Maintaining Security. Body cavity searches of penitentiary inmates may be conducted without probable cause unless it can be demonstrated that such searches bear no reasonable relationship to the requirements of maintaining security at the penitentiary.
Appeal from the District Court of Chaffee County, Honorable Mack Witty, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Lynne Ford, Assistant Attorney General, for plaintiff-appellee.
Wade H. Eldridge, for defendant-appellant.
Defendant, Joseph A. Valenzuela, appeals his conviction on two counts of attempted introduction of contraband in the first degree. We affirm the conviction.
An inmate of the Colorado State Reformatory, defendant was released on furlough on January 31, 1977, and was due to return on February 3, 1977. Prior to his return date, the assistant superintendent at the reformatory received a tip from an inmate that another inmate due to return from furlough would attempt to smuggle contraband into the reformatory. Since defendant was the only person on furlough at that time, defendant was met at the gate and escorted to the infirmary, where he was thoroughly searched. The reformatory physician, Dr. McGowan, as part of this search, performed a rectal examination upon defendant in the presence of the assistant superintendent. The doctor removed a small packet from defendant's rectum, which was subsequently found to contain heroin and marijuana.
Valenzuela's motion to suppress the packet and its contents was denied following a pretrial suppression hearing, and defendant was convicted based on this evidence.
On appeal, Valenzuela contends that the rectal search violated his reasonable expectation of privacy as guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution, and by Colo. Const. Art. II, Sec. 7.
[1] While it is true that inmates of a penal institution, which must of necessity include those on furlough, are not completely beyond the pale of Fourth Amendment protection, they are protected only against unreasonable searches made by prison authorities. A balance must be struck between the privacy rights of a furloughed inmate returning to an institution, and the institution's undeniable interest in keeping the facility secure and free of contraband, drugs or weapons. Given these considerations, we find that searches of inmates conducted by prison personnel are permissible even if made without probable cause, provided such searches are not done cruelly or wantonly, and are not accompanied by any intent to harass, humiliate, or intimidate the inmate. See generally Hudson v. People, 196 Colo. 211, 585 P.2d 580 (1978); Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972); Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970).
[2] Body cavity searches are a permissible part of the foregoing unless it can be demonstrated that such searches bear no reasonable relationship to the requirements of maintaining security. See Daugherty v. Harris, 476 F.2d 292 (10th Cir. 1973), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); Bell v. Manson, 427 F.Supp. 450 (D. Conn. 1976).
In the case at bar, there exists no evidence that the search of Valenzuela was in any way prompted by impermissible motives or that it exceeded the reasonable requirements of maintaining security. The rectal examination was conducted by a medical doctor using proper procedure and cannot be said to be cruel or wanton. Therefore, the evidence obtained as a result of the search was properly received and the defendant's conviction must stand.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.