Searching and Detaining or Arresting Non-Inmates, 5026-5030 [E6-1159]

Agencies

• Department of Justice
• Bureau of Prisons
• Prisons Bureau

[Federal Register Volume 71, Number 20 (Tuesday, January 31, 2006)]
[Proposed Rules]
[Pages 5026-5030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-1159]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 511

[BOP-1128]
RIN 1120-AB26


Searching and Detaining or Arresting Non-Inmates

AGENCY: Bureau of Prisons, Justice.

ACTION: Proposed rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to 
amend its regulations on searching and detaining or arresting non-
inmates. This revision reorganizes current rules and makes changes that 
would subject non-inmates to pat searches, either as random searches or 
based upon reasonable suspicion, as a condition of entry to a Bureau 
facility.

DATES: Comments due by April 3, 2006.

ADDRESSES: Our e-mail address is boprules@bop.gov. Submit comments to 
the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First 
Street, NW., Washington, DC 20534. You may view this rule at https://
www.regulations.gov. You may also comment via the Internet to BOP at 
boprules@bop.gov or via the comment form at https://www.regulations.gov.

[[Page 5027]]

When submitting comments electronically you must include the BOP Docket 
No. in the subject box.

FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General 
Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: In this document, the Bureau proposes to 
amend its regulations on searching and detaining or arresting non-
inmates. Current regulations on this subject in 28 CFR part 511 were 
published on November 1, 1984 (49 FR 44057), February 8, 1994 (59 FR 
5924), and March 10, 1998 (63 FR 11818). A further proposed rule 
relating to both searches of inmates and non-inmates was published on 
February 25, 1999, (64 FR 9431). The Bureau is working to finalize the 
portion of that rule relating to inmates, but the portion relating to 
non-inmates was withdrawn and is encompassed in this proposed 
rulemaking.
    This revision reorganizes current rules and makes other changes for 
clarity, including excising guidance to staff. Such guidance to staff 
will remain part of the relevant Bureau policy, enabling the Bureau to 
more quickly respond to staff correctional needs without altering 
Federal regulations that pertain to inmates or the public. We also make 
changes that would subject non-inmates to pat searches, either as 
random searches or based upon reasonable suspicion, as a condition of 
entry to a Bureau facility.
    Section-by-Section Analysis. Below is an analysis of each new rule. 
We refer to each proposed rule by its new (proposed) designation.

Section 511.10 Purpose & Scope

    This subpart will cover searching persons and their belongings to 
prevent prohibited objects from entering Bureau facilities; 
authorizing, denying, and/or terminating a person's presence inside a 
Bureau facility; and authorizing Bureau staff to remove, and possibly 
arrest and detain, persons suspected of engaging in prohibited 
activity. These rules will apply to all persons who wish to enter, or 
are present in, Bureau facilities, other than inmates in Bureau 
custody, at all Bureau facilities, including administrative offices.
    Additionally, the purpose of these rules is to help us ensure the 
safety, security, and orderly operation of Bureau facilities, and 
protect the public. These goals are furthered by carefully managing 
persons, the objects they bring, and their activities, inside Bureau 
facilities.

Section 511.11 Prohibited Activities

    In this rule, we define ``prohibited activities'' as those which 
could jeopardize the Bureau's ability to ensure the safety, security, 
and orderly operation of Bureau facilities, and protect the public, 
whether or not such activities are criminal in nature; and we give 
examples of such activities.
    The current rule, Sec.  511.10, contains detailed lists of 
offenses, including any ``described in title 18 or 21 of the United 
States Code,'' that are prohibited, but does not characterize them as 
``prohibited activities.'' In this revised rule, we characterize such 
offenses as ``prohibited activities,'' and expand this definition to 
include non-criminal activities which threaten the safety, security, 
and orderly operation of Bureau facilities. We use the term 
``prohibited activities'' to encompass both criminal and non-criminal 
violations which nonetheless compromise the Bureau's ability to fulfill 
its mission.

Section 511.12 Prohibited Objects

    In this rule, we define ``prohibited objects'' as those which could 
jeopardize the Bureau's ability to ensure the safety, security, and 
orderly operation of Bureau facilities, and protect the public, whether 
or not such objects are criminal in nature; and we give examples of 
such objects.
    The current rule, Sec.  511.11(c), defines ``prohibited objects.'' 
In our revision, we clarify that the term is defined as in 18 U.S.C. 
1791(d)(1) and conform it with our mission to ensure the safety, 
security, and orderly operation of Bureau facilities, and protect the 
public.
    As in the current rule, we give examples of ``prohibited objects,'' 
including, but not limited to, the following items and their related 
paraphernalia: Weapons, explosives, drugs, intoxicants, currency, 
cameras of any type, recording equipment, telephones, radios, pagers, 
and any other objects which violate criminal laws or are prohibited by 
Federal regulations or Bureau policies.

Section 511.13 Searches Before Entering, or While Inside, a Bureau 
Facility

    In this rule, we indicate that Bureau staff may search non-inmates 
and their belongings before entering, or while inside, any of our 
facilities, to keep out prohibited objects. This rule simply restates 
our initial statement in the current rule Sec.  511.10(a).

Section 511.14 Notification of Possible Searches

    In this rule, we indicate that we display conspicuous notices at 
the entrance to our facilities, informing all persons that they, and 
their belongings, are subject to search before entering, or while 
inside, Bureau facilities. Furthermore, we intend these rules and 
Bureau national and local policies to provide additional notice that 
non-inmates and their belongings may be searched before entering our 
facilities. We also indicate that by entering a Bureau facility, non-
inmates consent to being searched in accordance with these rules and 
Bureau policy.
    This rule clarifies language in current Sec.  511.12(a) regarding 
notices posted outside a facility advising non-inmates that they and 
their belongings may be subject to search.

Section 511.15 When Searches Will Be Conducted

    In this rule, we state that non-inmates and their belongings may be 
searched either randomly or based on reasonable suspicion before 
entering, or while inside, a Bureau facility, as follows:
    Random Searches. The proposed rule indicates that non-inmates 
wishing to enter Bureau facilities will be subject to searches 
occurring randomly, and not based on any particular suspicion that a 
person is attempting to bring a prohibited object into a Bureau 
facility. Random searches must always be done impartially, and in a 
nondiscriminatory fashion.
    The possibility of being pat-searched (and the obvious notices so 
stating) acts as a deterrent to non-inmates seeking to introduce 
contraband without unnecessarily or extremely burdening staff 
resources. Random searches would allow for local staff and institutions 
to maintain their flexibility, particularly with regard to institution 
resources, staffing changes, numbers of visitors, and time management.
    Non-inmate visitors are a significant source of contraband 
introduction into Bureau facilities. 18 U.S.C. 1791 prohibits providing 
an inmate a prohibited object in violation of a statute or rule issued 
under statute. Although other search methods, such as visual searches 
of the person and electronic detection devices, enable us to search 
non-inmates before they enter Bureau facilities, a 2003 report by the 
Office of Inspector General found that non-inmates often found unique 
ways of introducing contraband that may have easily been detected or 
prevented by random pat searches of non-inmates entering Bureau 
facilities.

[[Page 5028]]

    We therefore must tighten security measures by instituting a system 
of random pat searching of non-inmates entering Bureau facilities. This 
will serve the dual purpose of preventing the introduction of 
contraband by its detection, and deterring visitors who may attempt to 
introduce contraband. The Bureau's overriding need to prevent 
introduction of contraband and/or confiscate contraband necessitates 
random pat searches.
    Random searches, (without reasonable suspicion) are permissible, 
especially if the non-inmate is given prior notice of the search, which 
therefore lowers the non-inmate's reasonable expectation of privacy 
when seeking entry to the prison facility, and consents to the search. 
See Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995); U.S. v. Johnson, 27 
F.3d 564 (unpublished) (4th Cir. 1994); El v. Williams, 1990 WL 65717 
(unpublished) (E.D.Pa. 1990).
    As previously discussed, non-inmates will be aware that they may be 
subject to such searches both through notices displayed prominently at 
entry points to Bureau facilities and through these rules. Furthermore, 
non-inmates will be given the option of either consenting to such 
searches as a condition of entry or refusing such searches and leaving 
Bureau property.
    However, if a non-inmate refuses to submit to a random search and 
expresses an intent to leave Bureau property, he or she may still be 
required to be searched if ``reasonable suspicion'' exists as described 
in the following paragraph. It is necessary to provide the possibility 
of a ``reasonable suspicion'' search of non-inmates who decline a 
random search to discover and prevent the attempt to commit the crime 
of smuggling contraband or prohibited items into a Bureau facility. The 
mere fact that a non-inmate refuses to be searched does not give rise 
to reasonable suspicion, absent some other ground.
    Reasonable Suspicion Searches. Notwithstanding random searches, 
staff may conduct pat searches of a non-inmate based on reasonable 
suspicion to ensure the safety, security, and orderly operation of 
Bureau facilities, and protect the public. ``Reasonable suspicion'' 
exists if a staff member knows of facts and circumstances which warrant 
rational inferences by a person with correctional experience that a 
person may be engaged in, attempting, or about to engage in, criminal 
or other prohibited activity.
    This rule merely restates the definition of ``reasonable 
suspicion'' currently found in Sec.  511.11(a).

Section 511.16 How Searches Will Be Conducted

    This proposed rule restates and further details the types of 
searches listed in current Sec.  511.12. In the current rule, we state 
that electronic searches, pat searches, visual searches of the person, 
and drug testing are done with reasonable suspicion. The only 
substantive change we now propose is to allow electronic searches and 
pat searches of all non-inmates entering Bureau facilities.
    Non-inmate visitors are the primary source of contraband 
introduction into Bureau facilities. Although we have other search 
methods, such as visual searches, which enable us to search non-inmates 
before they enter Bureau facilities, contraband is still introduced. We 
therefore must tighten security measures by instituting a system of 
random pat searches of non-inmates.
    As we state in proposed rule Sec.  511.15, random searches will not 
be based on any particular suspicion that a person is attempting to 
bring a prohibited object into a Bureau facility. Selecting persons for 
random searches of their persons and belongings will be done according 
to impartially and in a non-discriminatory fashion.

Section 511.17 When a Non-Inmate Will Be Denied Entry to, or Required 
to Leave, a Bureau Facility

    In this rule, we clarify that the Warden or designee, in his/her 
discretion, may deny entry to, or require a non-inmate to leave a 
Bureau facility if the non-inmate refuses to be searched under these 
rules or if reasonable suspicion otherwise exists indicating that a 
non-inmate may be engaged in, attempting, or about to engage in, 
prohibited activity which jeopardizes the Bureau's ability to ensure 
the safety, security, and orderly operation of its facilities, or 
protect the public.
    This rule merely restates and consolidates current Sec. Sec.  
511.13(b) and (c) and 511.14.

Section 511.18 When Bureau Staff Can Arrest and Detain a Non-Inmate

    This rule clarifies the Bureau's authority to arrest and detain 
non-inmates if there is probable cause indicating a violation or 
attempted violation of applicable criminal law while at a Bureau 
facility, under 18 U.S.C. 3050. This language is currently found in 
Sec.  511.10(b). The proposed rule also consolidates and streamlines 
language found in current Sec. Sec.  511.15 and 511.16.
    The proposed rule also explains that ``probable cause'' exists when 
specific facts and circumstances lead a reasonably cautious person (not 
necessarily a law enforcement officer) to believe a violation of 
criminal law has occurred, and warrants consideration for prosecution. 
This merely restates the current definition of ``probable cause'' 
stated in Sec.  511.11(b).
    Finally, the proposed rule indicates that persons arrested by 
Bureau staff under this rule will be physically secured, using 
minimally necessary force and restraints, in a private area of the 
facility away from others. Appropriate law enforcement will be 
immediately summoned to investigate the incident, secure evidence, take 
custody or remove from Bureau property, and consider criminal 
prosecution. This provision merely restates language found in current 
Sec.  511.15.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined to constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866 and, 
accordingly, it was reviewed by OMB.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons: This rule pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not

[[Page 5029]]

significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

List of Subjects in 28 CFR Part 511

    Prisoners.

Harley G. Lappin,
Director, Bureau of Prisons.
    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons in 28 CFR 0.96, we propose to revise 28 CFR part 511 as 
follows.

Subchapter A--General Management and Administration

PART 511--GENERAL MANAGEMENT POLICY

    1. Revise the authority citation for 28 CFR part 511 to read as 
follows:

    Authority:  5 U.S.C. 301; 18 U.S.C. 751, 752, 1791, 1792, 1793, 
3050, 3621, 3622, 3624, 4001, 4012, 4042, 4081, 4082 (Repealed as to 
offenses committed on or after November 1, 1987), 5006-5024 
(Repealed October 12, 1984 as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510.

    2. Subpart B is revised as follows:

Subpart B--Searching and Detaining or Arresting Non-Inmates

Sec.
511.10 Purpose and Scope.
511.11 Prohibited activities.
511.12 Prohibited objects.
511.13 Searches before entering, or while inside, a Bureau facility.
511.14 Notification of possible search.
511.15 When searches will be conducted.
511.16 How searches will be conducted.
511.17 When a non-inmate will be denied entry to or required to 
leave a Bureau facility.
511.18 When Bureau staff can arrest and detain a non-inmate.


Sec.  511.10  Purpose and Scope.

    (a) These rules facilitate our legal obligations to ensure the 
safety, security, and orderly operation of Bureau of Prisons (Bureau) 
facilities, and protect the public. These goals are furthered by 
carefully managing persons, the objects they bring, and their 
activities, while inside Bureau facilities.
    (b) Purpose. These rules cover:
    (1) Searching persons and their belongings to prevent prohibited 
objects from entering Bureau facilities;
    (2) Authorizing, denying, and/or terminating a person's presence 
inside a Bureau facility; and
    (3) Authorizing Bureau staff to remove from Bureau facilities, and 
possibly arrest and detain, persons suspected of engaging in prohibited 
activity.
    (c) Scope/Application. These rules apply to all persons who wish to 
enter, or are present inside, Bureau facilities, other than inmates in 
Bureau custody. This subpart applies at all Bureau facilities, 
including administrative offices.


Sec.  511.11  Prohibited activities.

    (a) ``Prohibited activities'' include any activities which could 
jeopardize the Bureau's ability to ensure the safety, security, and 
orderly operation of Bureau facilities, and protect the public, whether 
or not such activities are criminal in nature.
    (b) Examples of ``prohibited activities'' include, but are not 
limited to: introducing, or attempting to introduce, prohibited objects 
into Bureau facilities; assisting an escape; and any other conduct 
which violates criminal laws or is prohibited by Federal regulations or 
Bureau policies.


Sec.  511.12  Prohibited objects.

    (a) ``Prohibited objects,'' as defined in 18 U.S.C. 1791(d)(1), 
include any objects which could jeopardize the Bureau's ability to 
ensure the safety, security, and orderly operation of Bureau 
facilities, and protect the public.
    (b) Examples of ``prohibited objects'' include, but are not limited 
to, the following items and their related paraphernalia: weapons; 
explosives; drugs; intoxicants; currency; cameras of any type; 
recording equipment; telephones; radios; pagers; and any other objects 
which violate criminal laws or are prohibited by Federal regulations or 
Bureau policies.


Sec.  511.13  Searches before entering, or while inside, a Bureau 
facility.

    Bureau staff may search you and your belongings before entering, or 
while inside, any of our facilities, to keep out prohibited objects.


Sec.  511.14  Notification of possible search.

    We display conspicuous notices at the entrance to all Bureau 
facilities, informing all persons that they, and their belongings, are 
subject to search before entering, or while inside, Bureau facilities. 
Furthermore, these rules and Bureau national and local policies provide 
additional notice that you and your belongings may be searched before 
entering, or while inside, our facilities. By entering or attempting to 
enter a Bureau facility, non-inmates consent to being searched in 
accordance with these rules and Bureau policy.


Sec.  511.15  When searches will be conducted.

    You and your belongings may be searched, either randomly or based 
on reasonable suspicion, before entering, or while inside, a Bureau 
facility, as follows:
    (a) Random Searches. This type of search may occur at any time, and 
is not based on any particular suspicion that a person is attempting to 
bring a prohibited object into a Bureau facility.
    (1) Random searches must be impartial and not discriminate among 
non-inmates on the basis of age, race, religion, national origin, or 
sex.
    (2) Non-inmates will be given the option of either consenting to 
random searches as a condition of entry, or refusing such searches and 
leaving Bureau property. However, if a non-inmate refuses to submit to 
a random search and expresses an intent to leave Bureau property, he or 
she may still be required to be searched if ``reasonable suspicion'' 
exists as described in paragraph (b) of this section.
    (b) Reasonable Suspicion Searches. Notwithstanding staff authority 
to conduct random searches, staff may also conduct reasonable suspicion 
searches to ensure the safety, security, and orderly operation of 
Bureau facilities, and protect the public. ``Reasonable suspicion'' 
exists if a staff member knows of facts and circumstances which warrant 
rational inferences by a person with correctional experience that a 
person may be engaged in, attempting, or about to engage in, criminal 
or other prohibited activity.


Sec.  511.16  How searches will be conducted.

    You may be searched by any of the following methods before 
entering, or while inside, a Bureau facility:
    (a) Electronically.
    (1) You and your belongings may be electronically searched for the 
presence of contraband, either randomly or upon reasonable suspicion.
    (2) Examples of electronic searches include, but are not limited to 
metal detectors, and ion spectrometry devices.
    (b) Pat Search.

[[Page 5030]]

    (1) You and your belongings may be pat searched either randomly or 
upon reasonable suspicion.
    (2) A pat search of your person or belongings involves a staff 
member pressing his/her hands on your outer clothing, or the outer 
surface of your belongings, to determine whether prohibited objects are 
present.
    (3) Pat searches of your person will always be performed by staff 
members of the same sex.
    (c) Visual Search. You and your belongings may be visually searched 
as follows:
    (1) Person.
    (A) A visual search of your person involves removing all articles 
of clothing, including religious headwear, to allow a visual (non-
tactile) inspection of your body surfaces and cavities.
    (B) Visual searches of your person must always be authorized by the 
Warden or his/her designee and based on reasonable suspicion; random 
visual searches are prohibited.
    (C) When authorized, visual searches will always be performed 
discreetly, in a private area away from others, and by staff members of 
the same sex as the non-inmate being searched.
    (D) Body cavity (tactile) searches of persons entering Bureau 
facilities, other than inmates, are prohibited.
    (2) Belongings. A visual search of your belongings involves opening 
and exposing all contents for visual and manual inspection, and may be 
done either as part of a random search or with reasonable suspicion.
    (d) Drug Testing.
    (1) You may be tested for use of intoxicating substances by any 
currently reliable testing method, including, but not limited to, 
breathalyzers and urinalysis.
    (2) Drug testing must always be authorized by the Warden or his/her 
designee and must be based on reasonable suspicion that you are under 
the influence of an intoxicating substance upon entering, or while 
inside, a Bureau facility. (Bureau staff are subject to drug-testing as 
mandated in separate Bureau policy.)
    (3) Searches of this type will always be performed discreetly, in a 
private area away from others, and by staff members adequately trained 
to perform the test.


Sec.  511.17  When a non-inmate will be denied entry to or required to 
leave a Bureau facility.

    At the Warden's, or his/her designee's, discretion, and based on 
these rules, you may be denied entry to, or required to leave, a Bureau 
facility if:
    (a) You refuse to be searched under these rules; or
    (b) There is reasonable suspicion that you may be engaged in, 
attempting, or about to engage in, prohibited activity which 
jeopardizes the Bureau's ability to ensure the safety, security, and 
orderly operation of its facilities, or protect the public. 
``Reasonable suspicion,'' for this purpose, may be based on the results 
of a search conducted under these rules, or any other reliable 
information.


Sec.  511.18  When Bureau staff can arrest and detain a non-inmate.

    (a) You may be arrested and detained by Bureau staff anytime there 
is probable cause indicating that you have violated or attempted to 
violate applicable criminal laws while at a Bureau facility, as 
authorized by 18 U.S.C. 3050.
    (b) ``Probable cause'' exists when specific facts and circumstances 
lead a reasonably cautious person (not necessarily a law enforcement 
officer) to believe a violation of criminal law has occurred, and 
warrants consideration for prosecution.
    (c) Persons arrested by Bureau staff under this rule will be 
physically secured, using minimally necessary force and restraints, in 
a private area of the facility away from others. Appropriate law 
enforcement will be immediately summoned to investigate the incident, 
secure evidence, and commence criminal prosecution.

[FR Doc. E6-1159 Filed 1-30-06; 8:45 am]
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