items purport to instruct on the construction of a bomb from a stereo hi-fi and from a walkie-talkie.
I have examined the copies of the withheld items and the lists describing the materials returned and find that their seizure did not violate plaintiff Conquest's retained First Amendment rights in light of the circumstances of the search and seizure. Information on bombs, detonators and explosives presents self-evident dangers which threaten the internal security of the prison. Prison officials took measures which, in their judgment, were necessary to maintain institutional security and to preserve internal order and discipline. Even though defendants seized some items arguably protected under the First Amendment,
the prison officials returned these items, after examining them, within a reasonable amount of time. When weighed against the retained First Amendment rights of a prisoner, these institutional reasons are sufficiently weighty to prevail. Accordingly, summary judgment is granted in defendants' favor with respect to the seizure of plaintiff Conquest's possessions.
Plaintiff Brown submits, in his affidavit, that legal materials and a book entitled "Infantry Weapons" by John Weeks were seized by the defendants as contraband. Defendants admit that they seized the book but deny that they seized any legal materials. Since it is a question of fact whether legal materials were seized and never returned, summary judgment as to that issue is denied.
Defendants have supplied the Court with a copy of "Infantry Weapons", as well as a list of the handwritten notations marking various pages of the book. I have examined carefully the submitted materials and find that defendants' seizure of "Infantry Weapons" did not violate plaintiff Brown's retained First Amendment rights when balanced against the state's interests.
"Infantry Weapons" discusses common infantry weapons the personal weapon or small arms. Its chapters are entitled Sighting Shots, Pistols, Submachine Guns, Rifles, Assault Rifles, Machine Guns, and Unusual Weapons for the Drawing Board. It includes detailed diagrams of the various weapons. The handwritten notations comment on the performance abilities of the weapons and the importance of the chapters in the book. For example, on page 17, next to the cutaway drawing of the .303 Lewis gun, a notation in red ink reads "It's OK"; and on pages 28 and 29, next to the drawing of the Luger PO8, a notation in red ink reads "very poor stopping power".
Because "Infantry Weapons" explains the use and procedures of deadly weapons, its presence in the prison environment threatens internal security and order. Its seizure by prison officials clearly served legitimate penological objectives: deterring crime, protecting society, and maintaining prison security. See Pell v. Procunier, supra. Given that prison officials are to be accorded wide-ranging deference in their decisions, Bell v. Wolfish, supra, summary judgment with respect to the seizure of "Infantry Weapons" is granted in defendants' favor.
THE ANAL INSPECTIONS
Initially, it must be noted that the Court does not have the issue of the constitutionality of the strip searches before it. The plaintiffs do not raise it in their pleadings. Moreover, it appears unlikely that they could prevail on this issue on the facts of this case. See Hodges v. Klein, 412 F. Supp. 896, at 900 (DNJ 1976). Only the anal inspection aspect of the strip search is before the Court for consideration.
Both plaintiffs Conquest and Brown were subjected to a visual anal inspection before they were confined in MCU.
Assuming for present purposes that plaintiffs retain some Fourth Amendment rights, I conclude that the searches at issue did not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches. Carroll v. United States, 267 U.S. 132, 147, 45 S. Ct. 280, 283, 69 L. Ed. 543 (1925). Under the present circumstances, I do not find that these searches were unreasonable.
The test of reasonableness under the Fourth Amendment requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Bell v. Wolfish, supra, 441 U.S., at 559, 99 S. Ct., at 1884. It is recognized that the anal inspections conducted on plaintiffs Conquest and Brown necessarily entailed an invasion of their privacy. On the other hand, it cannot be questioned that the prison had a great need to conduct the anal searches before plaintiffs' transfers to MCU. "A Penitentiary is a unique institution fraught with sensitive security hazards, not the least of these being smuggling of contraband such as drugs, money, knives, etc. The state has a high security interest in eliminating smuggling into and out of penitentiaries." Hodges v. Klein, supra, at 900, citing Gettleman v. Werner, 377 F. Supp. 445, at 451-452 (W.D.Pa.1974). Prison officials had found that plaintiffs Conquest and Brown possessed materials which threatened the security and the order of the prison. Moreover, plaintiffs Conquest and Brown were known "troublemakers" who had recently been released from MCU to the general population. Prison officials had a strong interest in keeping dangerous items, such as the items seized from plaintiffs' cells, from the MCU, where inmates are permitted to retain few, if any, personal items. In view of the foregoing, the Court cannot say that the defendants abused their discretion. Balancing the interests, I find that the prison officials' need to conduct the search clearly outweighs the invasion to plaintiffs' Fourth Amendment rights.
This matter is distinguishable from Hodges v. Klein, supra, where Chief Judge Fisher held that the prisoners' retained Fourth Amendment protection prevents an anal examination "before an inmate enters the segregation areas, after he returns from the segregated exercise yard or after he returns from a telephone visit". Id., at 902. The Court reasoned that although the state has some interest in requiring anal examinations before an inmate enters segregation or has unescorted contact with general population inmates, a metal detector protects the safety of prison guards by detecting any metal in the anal cavity without subjecting an inmate to "this degrading and humiliating search". Id. The Court concluded that in these circumstances the guards may conduct a visual anal search of an inmate only if "there is a reasonably clear indication or suggestion that the inmate is concealing something in his anal cavity". Id., at 903. Hodges dealt with the routine for anal inspections then in existence at Trenton State Prison. In the instant matter, the Court is presented with circumstances where the prison officials acted under an emergency situation and in their best judgment in order to protect the security of the prison and to defuse a potentially dangerous situation. In such a case, the Court must accord prison officials wide-ranging deference in their actions.
Moreover, the Supreme Court recently rejected the idea that the use of a metal detector would be less intrusive and equally as effective as the visual inspection. In a footnote in Bell v. Wolfish, the Court stated:
(t)he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers. However, assuming that the existence of less intrusive alternatives is relevant to the determination of the reasonableness of the particular search method at issue, the alternative suggested by the District Court simply would not be as effective as the visual inspection procedure. Money, drugs, and other nonmetallic contraband still could easily be smuggled into the institution.