X-Ray Body Scans, Inmate Visits, and the Fourth Amendment:
Back in late August, a federal court in Illinois handed down an interesting opinion on the Fourth Amendment implications of X-ray body scans, Zboralski v. Monahan (Moran, J.). The court ultimately didn't reach a decision, but rather called for more facts. But as far as I know, this is the very first case on how the Fourth Amendment applies to X-ray body scans, so I thought I would blog a bit about it.

  First, the facts. Zboralski is a frequent visitor to the Illinois Department of Human Services' Treatment and Detention Facility, where she visits her husband who has been civilly committed. The facility has a policy that all visitors must be subject to a patdown to ensure that the visitors are not bringing drugs or weapons to the individuals detained.

  Zboralski complained that a particular guard repeatedly touched her inappropriately when she came to visit. A facility employee told Zboralski that if she didn't want to be patted down, she could be subject to an X-ray body scan instead. The facility had a Rapiscan X-ray machine that was purchased to do body scans of inmates in lieu of strip searches, and the employee offered Zboralski the option of being scanned instead of patted down.

  Zboralski agreed. She was scanned in a number of later visits, as well, in part because confusion at the facility apparently led to the guards believing that Zboralski could only be admitted to the facility if she agreed to a body scan (without the option of a pat down). Indeed, it seems that in her later visits, Zboralski was told that she could only enter the facility if she agreed to an X-ray body scan.

  It's not totally clear from the opinion, but it looks like the X-ray body scan is the "Rapiscan Secure 1000," a new x-ray machine that identifies items underneath a person's clothing or in pockets. I found a sample image of a person scanned by the machine online, and it looks like this:

  Zboralski went home and researched the machine on the Internet, and she realized that the facility employees had essentially seen her naked through the scanning device. She objected to the scanning, although for a few weeks the guards continued to require her to be scanned when she visited her husband. Zboralski then sued, claiming that the scanning as a condition of entering the facility violated her Fourth Amendment rights.

  Notably, it was agreed from the outset that the X-ray body scan was a search that violated Zboralskis reasonable expectation of privacy. The question was how invasive a search it was, and therefore what kind of cause was needed to conduct one as a condition of entrance to a prison or other place of detention — rendering the search constitutionally "reasonable" in that setting. Judge Moran began by noting that courts have generally held that a physical "pat down" could be permitted as a condition of entrance to a prison. On the other hand, courts have held that a strip search is more invasive and that at least reasonable suspicion is required that the person is carrying contraband. Judge Moran thus framed the question as being whether the body scan was more like a patdown or more like a strip search.