Gonzalez v. City of Schenectady

11-5403-cv
Gonzalez v. City of Schenectady

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2012
6
7
8 (Submitted: January 7, 2013 Decided: August 28, 2013)
9
10 Docket No. 11-5403
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 JONATHAN GONZALEZ,
15
16 Plaintiff-Appellant,
17
18 - v.-
19
20 CITY OF SCHENECTADY; JOHN MALONEY, individually and in his
21 capacity as an employee of the City of Schenectady, New
22 York, Police Department; SEAN DALEY, individually and in his
23 capacity as an employee of the City of Schenectady, New
24 York, Police Department; ERIC PETERS, individually and in
25 his capacity as an employee of the City of Schenectady, New
26 York, Police Department; COUNTY OF SCHENECTADY,
27
28 Defendants-Appellees.
29
30 - - - - - - - - - - - - - - - - - - - -x
31

32 Before: JACOBS, Chief Judge, POOLER and CHIN,
33 Circuit Judges.
34
35 Jonathan Gonzalez appeals from the judgment of the

36 United States District Court for the Northern District of

37 New York (Hurd, J.) dismissing on summary judgment

38 Gonzalez’s § 1983 complaint alleging false arrest and

39 unlawful search. Because there was “arguable” probable
1 cause to arrest Gonzalez and the law relevant to the body

2 cavity search at issue was not clearly established, we

3 affirm the grant of qualified immunity. In a separate

4 opinion, Judge Pooler concurs in part and dissents in part.

5 JAMES BRIAN LeBOW, LeBow and
6 Associates, PLLC, New York, New
7 York, for Appellant.
8
9 MICHAEL JOSEPH MURPHY, Carter,
10 Conboy, Case, Blackmore, Maloney
11 & Laird, P.C., Albany, New York,
12 for Appellees.
13
14 DENNIS JACOBS, Chief Judge:
15
16 Jonathan Gonzalez brought suit against the City and

17 County of Schenectady and three Schenectady police officers

18 under 42 U.S.C. § 1983 and state law alleging arrest without

19 probable cause and conduct of a visual body cavity search in

20 violation of the Fourth Amendment. In an area known for

21 drug activity, Gonzalez told a confidential informant (who

22 was wearing a wire), “What do you need? I can get you

23 whatever you need.” Gonzalez was arrested, taken to the

24 police station, and subjected to a visual body cavity

25 search. Gonzalez was required to take off his clothes and

26 stand against a wall, where he spread his legs and spread

27 his buttocks. Officers saw a protruding plastic bag, which

28 contained crack cocaine.

2
1 Gonzalez was charged with criminal possession of a

2 controlled substance and, after losing his suppression

3 motion, was convicted by a jury and sentenced to

4 two-and-a-half years’ imprisonment followed by two years’

5 post-release supervision. The New York Supreme Court,

6 Appellate Division, Third Department, reversed the

7 conviction on the ground that the visual body cavity search

8 was unlawful, relying on a New York Court of Appeals case,

9 People v. Hall, that was decided after the search took

10 place.

11 Gonzalez brought suit in the Northern District of New

12 York, under 42 U.S.C. § 1983, alleging false arrest and

13 unlawful search, and naming the City, the County, and the

14 three officers involved with the search. The district court

15 granted summary judgment in favor of defendants on the

16 ground of qualified immunity. Gonzalez appeals, and for the

17 following reasons, we affirm.

18

19 BACKGROUND

20 On May 16, 2006, the Schenectady Police Department was

21 conducting a buy-and-bust operation using a confidential

22 informant who was wearing a wire. The confidential

3
1 informant drove to a parking lot in an area of Schenectady

2 known as a drug mart. With him were a woman and her

3 boyfriend Matt. The pair got out of the car while the

4 confidential information stayed inside.

5 In a conversation heard by police via the wire,

6 Gonzalez approached Matt and asked, “What’s up?” Matt said

7 he was “trying to get something.” Gonzalez responded: “What

8 do you need? I can get you whatever you need.” Because the

9 buy and bust was targeting a different dealer, the woman

10 said, “We are all set,” and Gonzalez walked away.

11 Officers John Maloney and Sean Daley, defendants here,

12 had observed the encounter but did not hear the

13 conversation. Detective Christopher Cowell, who had

14 listened in, radioed to tell them that Gonzalez had just

15 attempted to sell drugs. Gonzalez then walked to the bus

16 station to buy a ticket to the Bronx to visit his mother.

17 At the bus station, two other officers–-Robert Dashnow and

18 defendant Eric Peters--approached Gonzalez with guns drawn,

19 told him to get on the ground outside the station, and

20 searched him. After finding nothing, they placed him in a

21 van, and Officer Daley began to question him and search him

22 again.

4
1 At the police station, Officers Peters and Maloney

2 elicited Gonzalez’s background information, and then told

3 him to take his clothes off. When Gonzalez was undressed,

4 Officer Maloney instructed him to stand against the wall,

5 spread his legs, and spread his buttocks so they could see

6 inside. The officers observed a “little plastic bag

7 sticking out . . . of [his] rectum.” Gonzalez alleges that

8 one of the officers then “put his fingers in [Gonzalez’s]

9 rectum penetrating [his] rectum” and removed a bag

10 containing drugs. He claims that this (as opposed to the

11 storage) caused him to bleed for approximately a year

12 afterwards. Defendants assert that Gonzalez pulled it out

13 himself.

14 Gonzalez was charged with criminal possession of a

15 controlled substance. The trial court denied his motion to

16 suppress the drugs found in the search, focusing almost

17 exclusively on whether there was probable cause to arrest

18 Gonzalez, and concluding that there was. The court made

19 only a passing remark about the legality of the search

20 itself: “Subsequent to [Gonzalez’s] arrest, a lawfully

21 conducted strip search did in fact reveal that [he]

22 possessed cocaine.”

5
1 A jury convicted Gonzalez of Criminal Possession of a

2 Controlled Substance in the Third Degree and Criminal

3 Possession of a Controlled Substance in the Fourth Degree,

4 and he was sentenced to two-and-a-half years’ imprisonment

5 and two years’ post-release supervision.

6 On December 24, 2008, the New York Supreme Court,

7 Appellate Division, Third Department, reversed the

8 conviction, concluding that “there was no specific,

9 articulable factual basis supporting a reasonable suspicion

10 for conducting the visual cavity inspection here. . . .

11 [A]nd the evidence related to the inspection should have

12 been suppressed.” People v. Gonzalez, 57 A.D.3d 1220, 1222

13 (3d Dep’t 2008). The Third Department cited People v. Hall,

14 10 N.Y.3d 303 (2008), in support of its conclusion that the

15 police needed reasonable suspicion that they would find

16 contraband in Gonzalez’s body cavity.

17 Gonzalez filed a summons in New York Supreme Court on

18 July 27, 2009, against the City of Schenectady, the County

19 of Schenectady, and Officers Maloney, Daley, and Peters

20 under 42 U.S.C. § 1983, arguing that the arrest and visual

21 body cavity search violated Gonzalez’s Fourth Amendment

6
1 right to be free from unreasonable searches and seizures.1

2 Defendants removed the case to the Northern District of New

3 York (Hurd, J.). The district court dismissed the case on

4 summary judgment in November 2011, concluding that the

5 officers were entitled to qualified immunity for the arrest

6 because there was “arguable probable cause.” It also

7 concluded that they were entitled to qualified immunity for

8 the search because the law on body cavity searches was not

9 clearly established when the search occurred, Hall having

10 been decided (in 2008) two years after the search. The

11 claims against the City and County were dismissed because

12 Gonzalez alleged only vicarious liability.2

13

14 DISCUSSION

15 The Court reviews de novo a decision on a motion for

16 summary judgment. Mario v. P & C Food Mkts., Inc., 313 F.3d

17 758, 763 (2d Cir. 2002); see also Miller v. Wolpoff &

1
Gonzalez also alleged state law claims for
negligent infliction of emotional distress, negligence,
intentional infliction of emotional distress, malicious
prosecution, and false imprisonment. He withdrew all of
these except the malicious prosecution and false
imprisonment claims before the district court decided the
summary judgment motion.
2
Gonzalez does not appeal the dismissal of the
claims against the City and County.
7
1 Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary

2 judgment is appropriate if there is no genuine dispute as to

3 any material fact and the moving party is entitled to

4 judgment as a matter of law. Miller, 321 F.3d at 300. In

5 assessing a motion for summary judgment, a Court is

6 “required to resolve all ambiguities and draw all

7 permissible factual inferences in favor of the party against

8 whom summary judgment [was granted].” Terry v. Ashcroft,

9 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks

10 omitted).

11

12 I

13 The doctrine of qualified immunity protects government

14 officials from suit if “their conduct does not violate

15 clearly established statutory or constitutional rights of

16 which a reasonable person would have known.” Harlow v.

17 Fitzgerald, 457 U.S. 800, 818 (1982). The issues on

18 qualified immunity are: (1) whether plaintiff has shown

19 facts making out violation of a constitutional right; (2) if

20 so, whether that right was “clearly established”; and (3)

21 even if the right was “clearly established,” whether it was

22 “objectively reasonable” for the officer to believe the

8
1 conduct at issue was lawful. Taravella v. Town of Wolcott,

2 599 F.3d 129, 133-34 (2d Cir. 2010).

3 To be clearly established, “[t]he contours of the right

4 must be sufficiently clear that a reasonable official would

5 understand that what he is doing violates that right.”

6 Anderson v. Creighton, 483 U.S. 635, 640 (1987). In this

7 way, qualified immunity shields official conduct that is

8 “‘objectively legally reasonable in light of the legal rules

9 that were clearly established at the time it was taken.’”

10 X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)

11 (alterations omitted) (quoting Anderson, 483 U.S. at 639);

12 see also Taravella, 599 F.3d at 134-35.

13

14 II

15 A § 1983 claim for false arrest is substantially the

16 same as a claim for false arrest under New York law. Weyant

17 v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “The existence

18 of probable cause to arrest constitutes justification and is

19 a complete defense to an action for false arrest, whether

20 that action is brought under state law or under § 1983.”

21 Id. (internal quotation marks omitted); see also Broughton

22 v. State, 37 N.Y.2d 451, 456–58 (1975).

9
1 A

2 The first question as to qualified immunity is whether

3 the officers violated Gonzalez’s rights by arresting him.

4 That is, whether the officers had probable cause to arrest

5 him at the time of the arrest. “In general, probable cause

6 to arrest exists when the officers have knowledge or

7 reasonably trustworthy information of facts and

8 circumstances that are sufficient to warrant a person of

9 reasonable caution in the belief that the person to be

10 arrested has committed or is committing a crime.” Weyant,

11 101 F.3d at 852 (emphasis added). The inquiry is limited to

12 “whether the facts known by the arresting officer at the

13 time of the arrest objectively provided probable cause to

14 arrest.” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006).

15 To ascertain the existence of probable cause, we look

16 at the facts as the officers knew them in light of the

17 specific elements of each crime. While an officer “need not

18 have concrete proof of each element of a crime to establish

19 probable cause for an arrest,” Brewton v. City of New York,

20 550 F. Supp. 2d 355, 365 (E.D.N.Y. 2008), probable cause

21 means “more than bare suspicion,” Brinegar v. United States,

22 338 U.S. 160, 175 (1949). And it certainly means more than

10
1 suspicion of some generalized misconduct: “no probable cause

2 exists to arrest where a suspect’s actions are too ambiguous

3 to raise more than a generalized suspicion of involvement in

4 criminal activity.” United States v. Valentine, 539 F.3d

5 88, 94 (2d Cir. 2008).

6 The only facts known to the officers at the time of the

7 arrest were that (1) Gonzalez was in an area known for drug

8 sales, and (2) Gonzalez approached Matt and offered to get

9 him “whatever [he] need[ed].”3 The question is whether

10 these circumstances supported probable cause to arrest

11 Gonzalez for criminal possession of a controlled substance,

12 or for criminal sale of a controlled substance, or for an

13 attempt.

14 1

15 Gonzalez was convicted of Criminal Possession of a

16 Controlled Substance in the Third and Fourth Degrees. A

17 person is guilty of Criminal Possession of a Controlled

18 Substance in the Third Degree “when he knowingly and

19 unlawfully possesses . . . a narcotic drug with intent to

3
“[W]here . . . an arresting officer has acted on
the basis of a radio communication from a fellow officer who
has personal knowledge of the facts transmitted, he or she
presumptively possesses the requisite probable cause.”
People v. Pacer, 203 A.D.2d 652, 653 (3d Dep’t 1994).
11
1 sell it.” N.Y. Penal Law § 220.16(1). A person is guilty

2 of Criminal Possession of a Controlled Substance in the

3 Fourth Degree “when he knowingly and unlawfully

4 possesses . . . one or more preparations, compounds,

5 mixtures or substances containing a narcotic

6 drug . . . [with] an aggregate weight of one-eighth ounce or

7 more.” Id. § 220.09(1)

8 The most natural meaning of Gonzalez’s statement (that

9 he could get Matt “whatever [he] need[ed]”) is that Gonzalez

10 possessed no controlled substance at the moment, and that if

11 Matt needed some, Gonzalez would have to “get” it. The

12 statement did not preclude the possibility that Gonzalez was

13 keeping drugs in a body cavity, since it would not be

14 expected that he would retrieve it for delivery then and

15 there; but neither did the statement indicate that he had on

16 his person whatever drug Matt might name.

17 The officers never saw Gonzalez make a transaction, nor

18 did they see anything showing that Gonzalez possessed drugs,

19 as opposed to simply knowing where to get them. Cf. People

20 v. Eldridge, 103 A.D.2d 470, 471-72 (1st Dep’t 1984)

21 (overturning finding of no probable cause where officers

22 observed defendant with glassine envelopes containing a

23 white substance in a high drug area).

12
1 2

2 Even without probable cause to believe Gonzalez

3 possessed drugs, the officers might have had probable cause

4 to arrest Gonzalez for Criminal Sale of a Controlled

5 Substance, which requires a defendant to have “knowingly and

6 unlawfully [sold] . . . a narcotic drug.” N.Y. Penal Law

7 § 220.39. Under New York Penal Law § 220.00, “‘[s]ell’

8 means to sell, exchange, give or dispose of to another, or

9 to offer or agree to do the same.” (Emphasis added). The

10 New York Court of Appeals has held that, “in order to

11 support a conviction under an offering for sale theory,

12 there must be evidence of a bona fide offer to sell--i.e.,

13 that defendant had both the intent and the ability to

14 proceed with the sale.” People v. Mike, 92 N.Y.2d 996, 998

15 (1998); see also People v. Crampton, 45 A.D.3d 1180, 1181

16 (3d Dep’t 2007).

17 The Mike case is instructive:

18 Defendant approached two off-duty police officers
19 and inquired whether they were interested in
20 purchasing an unspecified type and quantity of
21 drugs. One of the officers asked if defendant had
22 any “dime bags;” [sic] defendant responded that he
23 only had “twenties.” Ultimately, defendant got
24 into the officers’ vehicle and led them to the
25 driveway of a building. Defendant told the
26 officers to give him some money, and he would go
27 into the building and get the drugs. The officer

13
 1 who had offered to purchase the drugs was
2 unwilling to go along with this arrangement. The
3 money belonged to the officer and he was
4 admittedly afraid that defendant would simply
5 abscond with it. Because of the officer’s
6 unwillingness to either part with the money or
7 accompany defendant into the building, the
8 transaction proceeded no further and without ever
9 having exited the vehicle, defendant was placed
10 under arrest for offering to sell drugs.
11
12 Mike, 92 N.Y.2d at 998. The Court of Appeals held that the

13 evidence in that case “was insufficient to establish that

14 defendant had the ability to carry out the sale.” Id. at

15 999; see also People v. Braithwaite, 162 Misc. 2d 613, 614-

16 16 (N.Y. Sup. Ct. 1994) (finding that the evidence was

17 insufficient to support a conviction for Criminal Sale of a

18 Controlled Substance because “[t]he offer here was anything

19 but definite. It was couched in terms such as ‘if I can

20 get’; ‘you want like an ounce or so’; ‘you willing to spend

21 like $800’; ‘once I get the price’; and ‘you know how long I

22 don’t buy a ounce.’”).

23 Gonzalez did not “offer” to sell drugs to Matt because

24 what Gonzalez said was considerably short of a “bona fide”

25 offer. Cf. People v. Rodriguez, 184 A.D.2d 439, 439 (1st

26 Dep’t 1992) (concluding that an offer to sell cocaine,

27 followed by an undercover officer “asking for ‘two’” and the

28 defendant reaching for a cigarette box containing the

14
1 cocaine, was sufficient). Once Gonzalez walked away from

2 Matt, there was no reason to believe that he had made a bona

3 fide offer.

4 There was therefore no probable cause to arrest

5 Gonzalez for Criminal Sale of a Controlled Substance.

6 3

7 The officers might have also had probable cause to

8 arrest Gonzalez for attempting either one of these two

9 crimes. “A person is guilty of an attempt to commit a crime

10 when, with intent to commit a crime, he engages in conduct

11 which tends to effect the commission of such crime.” N.Y.

12 Penal Law § 110.00. For an attempt, it must be shown that

13 the defendant “committed an act or acts that carried the

14 project forward within dangerous proximity to the criminal

15 end to be attained.” People v. Warren, 66 N.Y.2d 831, 832-

16 33 (1985) (citing People v Di Stefano, 38 N.Y.2d 640, 652

17 (1976)). A defendant cannot be convicted for Attempted

18 Criminal Sale of a Controlled Substance if “several

19 contingencies [stand] between the agreement . . . and the

20 contemplated purchase.” Warren, 66 N.Y.2d at 833. The

21 court arrived at that result in Warren notwithstanding that

22 the defendant had met with an undercover officer and

15
1 discussed the quality, quantity, and price of the cocaine

2 purchase that was to take place later. Id. at 832.

3 As in Warren, “several contingencies [stand] between”

4 Gonzalez’s off-the-cuff statement and a sale of drugs. The

5 officers therefore lacked probable cause to believe that

6 Gonzalez had attempted to commit either crime.

7 B

8 The right to be free from arrest without probable cause

9 was clearly established at the time of Gonzalez’s arrest.

10 See Jenkins v. City of New York, 478 F.3d 76, 86-87 (2d Cir.

11 2007). Gonzalez’s false arrest claim therefore turns on

12 whether the officers’ probable cause determination was

13 objectively reasonable. See id. “An officer’s

14 determination is objectively reasonable if there was

15 ‘arguable’ probable cause at the time of the arrest--that

16 is, if ‘officers of reasonable competence could disagree on

17 whether the probable cause test was met.’” Id. (quoting

18 Lennon v. Miller, 66 F.3d 416, 423-24 (2d Cir. 1995)).

19 However, “‘[a]rguable’ probable cause should not be

20 misunderstood to mean ‘almost’ probable cause. . . . If

21 officers of reasonable competence would have to agree that

22 the information possessed by the officer at the time of

16
1 arrest did not add up to probable cause, the fact that it

2 came close does not immunize the officer.” Id.

3 The analysis of probable cause set out above entails a

4 careful parsing of Gonzalez’s statement and a close

5 examination of the elements of a number of different

6 criminal statutes. Officers charged with making moment-by-

7 moment decisions cannot be expected to undertake such a

8 project. While Gonzalez’s statement on its own does not

9 satisfy the elements of any crime, he was in an area known

10 for drug sales and he said it to a person obviously trawling

11 for drugs. (The police could intuit that Matt and Gonzalez

12 were not talking about prostitutes, absinthe, or Cuban

13 cigars.) Significantly, the experienced state trial judge

14 conscientiously analyzed the probable cause question during

15 the criminal proceeding and concluded that there was indeed

16 probable cause to arrest Gonzalez.

17 We therefore conclude that there was “arguable”

18 probable cause and that the officers are entitled to

19 qualified immunity for Gonzalez’s false arrest claim under

20 § 1983.4

4
This conclusion also disposes of Gonzalez’s state
law false imprisonment claim against the officers because
“New York Law . . . grant[s] government officials qualified
immunity on state-law claims except where the officials’
17
1 III

2 The search of Gonzalez at the station raises a question

3 as to Gonzalez’s Fourth Amendment right to be free from

4 unreasonable searches. It is useful to define terms before

5 proceeding to analysis: (1) a “strip search” occurs when a

6 suspect is required to remove his clothes; (2) a “visual

7 body cavity search” is one in which the police observe the

8 suspect’s body cavities without touching them (as by having

9 the suspect to bend over, or squat and cough, while naked);

10 (3) a “manual body cavity search” occurs when the police put

11 anything into a suspect’s body cavity, or take anything out.

12 See People v. Hall, 10 N.Y.3d 303, 306-07 (2008).

13 A

14 The law governing these types of searches is far from

15 settled; the rules alter with circumstances, and the

16 circumstances are myriad. The key precedents turn

17 kaleidoscopically on whether the arrest is for a felony or a

18 misdemeanor, and whether the suspect is placed in the

19 general prison population, among other considerations.

actions are undertaken in bad faith or without a reasonable
basis.” Jones v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006);
see also Blouin ex rel. Estate of Pouliot v. Spitzer, 356
F.3d 348, 364 (2d Cir. 2004).
18
1 In Schmerber v. California, 384 U.S. 757 (1966), the

2 suspect was hospitalized following a car accident. Id. at

3 758. A policeman at the scene smelled alcohol on the

4 suspect’s breath, and inferred from that and other

5 observations that the suspect was drunk. Id. at 768-69. At

6 the hospital, the officer made the arrest and instructed a

7 doctor to take a blood sample. Id. at 758. The Supreme

8 Court first held that there was probable cause for arrest

9 and for a search incident to arrest. Id. at 769. However,

10 the Court held that the search-incident-to-arrest doctrine

11 alone did not justify the drawing of the suspect’s blood;

12 the police needed “a clear indication that in fact such

13 evidence will be found.” Id. at 669-70. No warrant was

14 required, though, because of the exigent circumstance that

15 the blood-alcohol concentration would soon dissipate. Id.

16 In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme

17 Court was asked to decide whether a blanket policy requiring

18 visual body cavity searches for all pretrial detainees being

19 housed in a correctional facility who had seen visitors was

20 constitutional. Citing Schmerber, the Court held that the

21 constitutionality of this scheme depended on “[1] the scope

22 of the particular intrusion, [2] the manner in which it is

19
1 conducted, [3] the justification for initiating it, and [4]

2 the place in which it is conducted.” Id. at 559. The Court

3 concluded that the scheme was reasonable because “[a]

4 detention facility is a unique place fraught with serious

5 security dangers.” Id.

6 In 1986, we held in Weber v. Dell

7 that the Fourth Amendment precludes prison
8 officials from performing strip/body cavity
9 searches of arrestees charged with misdemeanors or
10 other minor offenses unless the officials have a
11 reasonable suspicion that the arrestee is
12 concealing weapons or other contraband based on
13 the crime charged, the particular characteristics
14 of the arrestee, and/or the circumstances of the
15 arrest.
16
17 804 F.2d 796, 802 (2d Cir. 1986) (emphases added). In

18 Weber, the suspect was placed in a vacant cell, decreasing

19 the concerns regarding jailhouse safety. Id. at 799.

20 This rule was later applied in Shain v. Ellison, 273

21 F.3d 56 (2d Cir. 2001). The plaintiff had been arrested for

22 first degree harassment, a misdemeanor. Id. at 60. Relying

23 on Weber, we held that “it was clearly established in 1995

24 that persons charged with a misdemeanor and remanded to a

25 local correctional facility . . . have a right to be free of

26 a strip search absent reasonable suspicion that they are

27 carrying contraband or weapons.” Id. at 66.

20
1 Prior to the search at issue here, Judge McMahon of the

2 Southern District of New York had decided a number of cases

3 that expanded Weber to arrests for drug-related felonies.

4 In Sarnicola v. County of Westchester, Judge McMahon held

5 that “particularized reasonable suspicion” was required to

6 strip search all suspects, whether they were arrested for

7 misdemeanors or felonies. 229 F. Supp. 2d 259, 270

8 (S.D.N.Y. 2002). She observed that “[a]n automatic

9 justification for strip searches based on an arrest for a

10 drug-related crime would be inconsistent with the legal

11 concept of reasonable suspicion based on the totality of the

12 circumstances.” Id. at 273-74. She ruled to the same

13 effect in Bradley v. Village of Greenwood lake, 376 F. Supp.

14 2d 528 (S.D.N.Y. 2005); Bolden v. Village of Monticello, 344

15 F. Supp. 2d 407 (S.D.N.Y. 2004); and Murcia v. County of

16 Orange, 226 F. Supp. 2d 489 (S.D.N.Y. 2002). In so holding,

17 Judge McMahon noted that “the Second Circuit has not spoken

18 directly to the appropriate test for the validity of a strip

19 search incident to a felony arrest.” Sarnicola, 229 F.

20 Supp. 2d at 270; accord Murcia, 226 F. Supp. 2d at 494.

21 In 2008, the New York Court of Appeals decided People

22 v. Hall, 10 N.Y.3d 303 (2008). In Hall, police observed

21
1 Hall on a street corner repeatedly receive money from

2 someone, go into a nearby bodega, and return a few minutes

3 later with drugs to hand to the customer. Id. at 305-06.

4 The officers arrested him and strip-searched him at the

5 station prior to placing him with any other prisoners. Id.

6 When the officers told him to bend over, they saw a string

7 coming out of his rectum. Id. When Hall refused to remove

8 it, the officers removed it themselves and found that it was

9 attached to a bag of crack cocaine. Id.

10 The Hall court began by defining the terminology

11 outlined at the beginning of this Section. It then held as

12 follows:

13 Summarizing the relevant constitutional precedent,
14 it is clear that a [1] strip search must be
15 founded on a reasonable suspicion that the
16 arrestee is concealing evidence underneath
17 clothing and the search must be conducted in a
18 reasonable manner. To advance to the next level
19 required for a [2] visual cavity inspection, the
20 police must have a specific, articulable factual
21 basis supporting a reasonable suspicion to believe
22 the arrestee secreted evidence inside a body
23 cavity and the visual inspection must be conducted
24 reasonably. If an object is visually detected or
25 other information provides probable cause that an
26 object is hidden inside the arrestee’s body, [3]
27 Schmerber dictates that a warrant be obtained
28 before conducting a body cavity search unless an
29 emergency situation exists. Under our decision in
30 More, the removal of an object protruding from a
31 body cavity, regardless of whether any insertion
32 into the body cavity is necessary, is subject to

22
1 the Schmerber rule and cannot be accomplished
2 without a warrant unless exigent circumstances
3 reasonably prevent the police from seeking prior
4 judicial authorization.
5
6 Id. at 310-11. The court went on to say, “Our precedent on

7 this point is unequivocal: the police are required to have

8 ‘specific and articulable facts which, along with any

9 logical deductions, reasonably prompted th[e] intrusion.’”

10 Id. at 311 (alteration in original) (quoting People v.

11 Cantor, 36 N.Y.2d 106, 113 (1975)). However, no case cited

12 by the Hall court said that an officer needs particular,

13 individualized facts to conduct a visual body cavity search.

14 In Florence v. Board of Chosen Freeholders of County of

15 Burlington, 132 S. Ct. 1510 (2012), the Supreme Court again

16 confronted the issue of general prison strip search

17 policies. In Florence, a mistake in a computer system led

18 police to believe that there was an outstanding warrant for

19 the plaintiff’s arrest. Id. at 1514. He was pulled over

20 and arrested pursuant to that warrant. Id. In jail,

21 officials performed a visual body cavity search under a

22 blanket policy. Id. The Supreme Court, building on Bell v.

23 Wolfish, held that a blanket policy of conducting visual

24 body cavity searches on new inmates was constitutional, even

25 for misdemeanor arrestees where there is no reason to

23
1 suspect that the arrestee would have contraband. Id. at

2 1520-21.

3 The plaintiff in Florence was placed in a general

4 prison population. The Court noted, “This case does not

5 require the Court to rule on the types of searches that

6 would be reasonable in instances where, for example, a

7 detainee will be held without assignment to the general jail

8 population and without substantial contact with other

9 detainees.” Id. at 1522.

10 B

11 The officers do not dispute that the search violated

12 Gonzalez’s right to be free from unreasonable searches;

13 their position is that the right violated was not clearly

14 established. We need not determine whether the facts

15 alleged make out a violation of a constitutional right prior

16 to determining whether that right was clearly established.

17 See Pearson v. Callahan, 555 U.S. 223, 236 (2009)

18 (dispensing with the rule announced in Saucier v. Katz, 533

19 U.S. 194 (2001), that required courts to first determine

20 whether there was a constitutional violation before

21 proceeding to the qualified immunity analysis). This is

22 especially true here, where the issue was not fully briefed

24
1 by the government. Id. at 225 (cautioning that courts

2 should not rule on constitutional issues where “the briefing

3 of constitutional questions is woefully inadequate”).

4 C

5 Defendants-Appellees are not liable under § 1983 unless

6 the right at issue was clearly established, meaning that

7 “[t]he contours of the right [are] sufficiently clear that a

8 reasonable official would understand that what he is doing

9 violates that right.” Anderson v. Creighton, 483 U.S. 635,

10 640 (1987). “In deciding whether a right was clearly

11 established, we ask: (1) Was the law defined with reasonable

12 clarity? (2) Had the Supreme Court or the Second Circuit

13 affirmed the rule? and (3) Would a reasonable defendant have

14 understood from the existing law that the conduct was

15 unlawful?” Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d

16 Cir. 1998). The answer to all three is no.

17 At the time of the search, we had never held that the

18 Fourth Amendment is violated by a suspicionless search

19 (strip search or visual body cavity search) of a person

20 arrested for felony drug possession. Although we have

21 repeatedly held that the police may not conduct a

22 suspicionless strip or body cavity search of a person

25
1 arrested for a misdemeanor, reasonable officers could

2 disagree as to whether that rule applied to those arrested

3 for felony drug crimes, given the propensity of drug dealers

4 to conceal contraband in their body cavities. See, e.g.,

5 Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th

6 Cir. 1983) (describing “narcotics violations” as one of the

7 “kinds of crimes, unlike traffic or other minor offenses,

8 that might give rise to a reasonable belief that the . . .

9 arrestee was concealing an item in a body cavity”). Judge

10 McMahon (who seems to have had a full share of these cases)

11 has repeatedly emphasized that we have never applied the

12 rule from Weber and Shain to searches of suspects arrested

13 for felony drug crimes. See Sarnicola v. Cnty. of

14 Westchester, 229 F. Supp. 2d 259, 270 (S.D.N.Y. 2002);

15 Murcia v. Cnty. of Orange, 226 F. Supp. 2d 489, 494

16 (S.D.N.Y. 2002).

17 The New York Court of Appeals’ decision in People v.

18 Hall, 10 N.Y.3d 303 (2008), does not support the view that

19 the search of Gonzalez violated a clearly established

20 federal constitutional rule. Hall was decided after the

21 search at issue in this case. It is not a ruling of the

22 Supreme Court or this Court. And though the wording in Hall

26
1 seems promising for Gonzalez--“[o]ur precedent on this point

2 is unequivocal: the police are required to have ‘specific

3 and articulable facts which, along with any logical

4 deductions, reasonably prompted th[e] intrusion,’” id. at

5 311 (emphasis added) (alteration in original) (quoting

6 People v. Cantor, 36 N.Y.2d 106, 113 (1975))--not one case

7 cited in Hall said that an officer needs particular,

8 individualized facts to conduct a visual body cavity

9 search.5

10 Shain v. Ellison is similarly distinguishable: the

11 arrest was for first degree harassment, a misdemeanor. 273

12 F.3d 56, 60 (2d Cir. 2001). A reasonable officer who made a

13 study of these ramified precedents could distinguish arrests

14 for offenses such as harassment from arrests for felonies--

15 especially felonies involving drugs. In any event, Shain is

16 likely no longer good law in light of Florence v. Board of

17 Chose Freeholders of County of Burlington, 132 S. Ct. 1510,

18 1515 (2012), which held that misdemeanor arrestees could be

5
Cantor, the case relied upon in Hall for this
proposition, does not mention the words “strip search” or
“body cavity search.” The rule in Hall was characterized as
a “pronouncement” by the trial court in People v. Crespo,
reflecting its novelty. 29 Misc. 3d 1203(A), at *8 (N.Y.
Sup. Ct. 2010).

27
1 subject to visual body cavity searches before being placed

2 in the general prison population, as the plaintiff in Shain

3 was. Shain, 273 F.3d at 60, 65-66.

4 While we can expect police officers to be familiar with

5 black-letter law applicable to commonly encountered

6 situations, they cannot be subjected to personal liability

7 under § 1983 based on anything less. There are so many

8 permutations of fact that bear upon the constitutional

9 issues of a search: the arrest can be for a misdemeanor or a

10 felony, for a drug offense or not; the search can be a strip

11 search, a visual body cavity search, or a manual one; the

12 person arrested can be headed to the general prison

13 population or a single cell; the place of the search can be

14 private or less than private; the impetus for the search can

15 be a tip, or the policeman’s observations or experience or

16 hunch, or the neighborhood, or a description, or some or all

17 of the above; and other considerations as well. The

18 policeman is not expected to know all of our precedents or

19 those of the Supreme Court, or to distinguish holding from

20 dicta, or to put together precedents for line-drawing, or to

21 discern trends or follow doctrinal trajectories. Otherwise,

22 qualified immunity would be available only to a cop who is a

28
1 professor of criminal procedure in her spare time. The

2 police cannot be expected to know such things at risk of

3 personal liability for the policeman’s savings, home equity,

4 and college funds. And such personal liability is the only

5 kind of liability imposed by § 1983 (absent a Monell claim).

6 That tells us something about the threshold of liability in

7 these cases.6

8 We conclude that a reasonable officer--even one

9 familiar with the cases described above--would not have

10 understood that conducting an otherwise suspicionless visual

11 body cavity search of a person arrested for a felony drug

12 offense was unlawful; the defendants in this case are

13 therefore entitled to qualified immunity.7

6
The premise--that a suit against an individual
government employee is in substance a suit against his
employer--is wrong. Doubtless in some political subdivisions
of this Circuit the government supplies defense counsel and
pays the judgment if an officer is personally liable under
§ 1983. But this Circuit includes scores of counties and
hundreds of towns and municipalities; and there are
thousands of political subdivisions in the nation. Not all
of them will indemnify their employees for § 1983 judgments;
many cannot even afford to furnish a defense; some can
barely keep the school open.
7
Gonzalez also alleges that the defendants violated
his Fourth Amendment rights when they conducted a manual
body cavity search and pulled the bag of crack cocaine out
of Gonzalez’s anus. Who pulled the bag out is disputed, but
even assuming it was the officers, they would not have
violated clearly established law by doing so; once they saw
29
1 IV

2 Gonzalez also claims malicious prosecution under

3 § 1983. A § 1983 claim for malicious prosecution looks to

4 the relevant state common law. See Janetka v. Dabe, 892

5 F.2d 187, 189 (2d Cir. 1989). Under New York law, a

6 plaintiff must show that the underlying proceeding was

7 terminated in his favor to make out a malicious prosecution

8 claim. See id. at 189. “Where the prosecution did not

9 result in an acquittal, it is deemed to have ended in favor

10 of the accused, for these purposes, only when its final

11 disposition is such as to indicate the innocence of the

12 accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997).

13 Here, the officers found crack cocaine in Gonzalez’s

14 rectum, eliminating any doubt that Gonzalez was, in fact,

15 guilty of at least criminal possession of a controlled

16 substance. His malicious prosecution claim therefore fails.

17

the bag protruding from Gonzalez’s anus, they had probable
cause to search him for it, and we have never held that such
a search requires a warrant. Cf. Hall, 10 N.Y. 3d at 310-
11.
30
1 CONCLUSION

2 For the foregoing reasons, the judgment of the district

3 court dismissing all of Gonzalez’s claims against the

4 officers in their individual capacities is AFFIRMED.

31
 POOLER, Circuit Judge, dissenting:

1 I concur in the majority opinion in its statements of controlling law and its

2 conclusions as to Part I, II,1 and IV. I respectfully dissent however, as to Part III, because

3 I believe that the relevant rule regarding body cavity searches was clearly established, as

4 it was clearly foreshadowed as a federal constitutional right, prior to Gonzalez’s arrest.

1
Although I agree with the majority’s conclusion in Part II, that arguable probable
cause exists in this instance, I must stress: this is a close case. Arguable probable cause
exists where “officers of reasonable competence could disagree on the legality of [their]
action [in this] particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.
2007) (internal quotation marks omitted). Where the “only facts known to the officers at
the time of the arrest,” were that (1) the location was known for drug sales and (2)
Gonzalez said he could get drugs, see Maj. Op. at 11 (emphasis added), the question of
arguable probable cause is indeed a close question. If the officers had not been able to
rely on the second factor, that Gonzalez said he could get drugs, officers of reasonable
competence could not disagree on the illegality of their action.
Officers must rely on something more than the location’s reputation in order to
find reasonable suspicion. See Holeman v. City of New London, 425 F.3d 184, 190 (2d
Cir. 2005) (stating that driving in circuitous route in high-crime area at 4:30 a.m. not
enough, standing alone, to support reasonable suspicion); United States v. McCargo, 464
F.3d 192, 197 (2d Cir. 2006) (“Reasonable suspicion requires considerably less of a
showing than probable cause.”). If a location’s reputation as a “high crime area” is not
enough to advance reasonable suspicion, a location’s reputation as a “high drug area”
certainly cannot be enough to suggest probable cause, without more information.
Although officers are allowed to take a location’s reputation into consideration, see
United States v. Muhammad, 463 F.3d 115, 122-23 (2d Cir. 2006), it must be coupled
with some other indication, such as flight from the scene, see id., or the prevalence of
drug sales at a particular address in order to conclude that arguable probable cause
existed. See Martinez v. City of Schenectady, 115 F.3d 111 (2d Cir. 1997) (concluding
probable cause existed where officers previously knew about drug sales from plaintiff’s
specific apartment address).
In this case, the general location’s prevalence in drug sales can therefore not be
enough to create arguable probable cause or else all residents who live in high drug or
high crime areas would be vulnerable to arbitrary arrest. Nonetheless, I agree that we
may conclude arguable probable cause existed in this instance because the officers in this
case could couple the location’s reputation with Gonzalez’s statement.

1
 1 I.

2 To determine whether a right was clearly established2 we look to “(1) whether the

3 right in question was defined with ‘reasonable specificity’; (2) whether the decisional law

4 of the Supreme Court and the applicable circuit court support the existence of the right in

5 question; and (3) whether under preexisting law a reasonable defendant official would

6 have understood that his or her acts were unlawful.” Shechter v. Comptroller of City of

7 N.Y., 79 F.3d 265, 271 (2d Cir. 1996) (internal quotation marks omitted). “If the law at

8 that time was not clearly established, an official could not reasonably be expected to

9 anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the

10 law forbade conduct not previously identified as unlawful.” Harlow v. Fitzgerald, 457

11 U.S. 800, 818 (1982).

12

2
In resolving the question of qualified immunity, a court must decide whether the
alleged conduct was a violation of a constitutional right and whether the right at issue was
“clearly established” at the time of defendant’s alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001). Here, no one disputes that the search violated Gonzalez’s right to
be free from unreasonable searches; the defendant’s position is only that the right violated
was not clearly established. After Gonzalez was arrested he was told to get on the floor
and was searched, but the pat down yielded nothing. Plaintiff was handcuffed and taken
to police headquarters, where police conducted a full cavity search. Officers stated that
Gonzalez was subjected to this search only because he was arrested on a narcotics
offense. According to the Schenectady Police Department’s policy, police required
Gonzalez to undress completely, turn around, put his hands on the wall, spread his feet,
and use his hands to spread his buttocks. Before taking off his boxers, officers had not
identified any contraband. Only after spreading his buttocks, officers located and
removed a bag with drugs. The parties disagree as to whether the officers or Gonzalez
removed the bag.

2
 1 This is not to say that an action is clearly established only if the court has explicitly

2 held that the behavior is unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987). We

3 have repeatedly held a law is considered clearly established if decisions of the Supreme

4 Court or this Court “clearly foreshadow a particular ruling on the issue.” Varrone v.

5 Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (internal quotation marks omitted) (emphasis

6 added). See also id. at 79 (quoting Shabazz v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988)

7 (stating in “the absence of a specific authority directly on point” we look to whether this

8 Circuit or the Supreme Court had presaged the particular ruling). We have taken special

9 care to apply this “clearly foreshadowed” standard in the context of the Fourth

10 Amendment, see Varrone, 123 F.3d at 78; see also Shabazz, 852 F.2d at 701, which “is

11 not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S.

12 520, 559 (1979).

13 II.

14 Here, the relevant question is whether the heightened standard for an anal body

15 cavity search of a felony arrestee was clearly foreshadowed by this Circuit or the

16 Supreme Court, at the time of Gonzalez’s search in 2006.3 The New York State

17 Appellate Division initially found that the officer’s had not met the heightened reasonable

18 suspicion standard to justify Gonzalez’s visual cavity search, indicating that the Appellate

3
The majority states that the question here regards a strip search or visual body
cavity search. According to the Appellees, Gonzalez himself removed the bag from his
buttocks. According to the Gonzalez, one of the officers removed the bag from his
buttocks.

3
 1 Division believed the rule was clearly established. People v. Gonzalez, 57 A.D.3d 1220,

2 1222 (N.Y. App. Div. 2008). The district court concluded differently, stating that the law

3 requiring a more stringent standard for body cavity searches had not been clearly

4 established until People v. Hall, 10 N.Y.3d 303, 310-11 (2008) subsequent to Gonzalez’s

5 arrest. Gonzalez v. City of Schenectady, No. 09-cv-1434,2011 WL 6010910, at *4

6 (N.D.N.Y. Nov. 30, 2011). The majority agrees with the district court, to the extent that it

7 states, “[t]he law governing these types of searches is far from settled; the rules alter with

8 circumstances, and the circumstances are myriad.” However, the majority fails to apply

9 the correct test. Regardless of whether the Supreme Court or this Circuit directly held

10 this rule, it was undoubtedly foreshadowed previous to Gonzalez’s arrest, thus, I must

11 disagree with the majority’s conclusion in Part III.

12 Both the Supreme Court and this Circuit have held that police searches within the

13 body require a special heightened standard. In Schmerber v. California, 384 U.S. 757

14 (1966), the Supreme Court held that intrusions beyond the body’s surface are forbidden

15 by the Fourth Amendment in the absence of clear indication that the evidence will be

16 found. Id. at 770. In that case, the Court held that probable cause to search a drunk

17 driver did not justify the more intrusive drawing of the suspect’s blood. Id. “[I]nterests

18 in human dignity and privacy which the Fourth Amendment protects forbid any such

19 intrusions on the mere chance that desired evidence might be obtained.” Id. at 769-70.

20 See also Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14 (1989) (“The [Fourth]

21 Amendment guarantees the privacy, dignity, and security of persons against certain

4
 1 arbitrary and invasive acts by officers of the Government or those acting at their

2 direction.”) Thus, “[i]n the absence of a clear indication4 that in fact such evidence will

3 be found, these fundamental human interests require law officers to suffer the risk that

4 such evidence may disappear unless there is an immediate search.” Schmerber, 384 U.S.

5 at 770.

6 In Bell, 441 U.S. 520, the Supreme Court extended this rule to body cavity

7 searches. There, the Court held that policies requiring pretrial detainees be given visual

8 body cavity searches after having seen a visitor may be constitutional. Id. at 560.

9 However, Bell still recognized pretrial detainees retain some Fourth Amendment rights.

10 Id. at 558; see also id. at 545 (“we have held that convicted prisoners do not forfeit all

11 constitutional protections by reason of their conviction and confinement in prison”).

12 Vigilant of these privacy interests and Schmerber, the Court concluded these “searches

13 must [still] be conducted in a reasonable manner.” Id. at 560 (citing Schmerber, 384 U.S.

14 at 771-72). The test for reasonableness requires courts to consider “the scope of the

15 particular intrusion, the manner in which it is conducted, the justification for initiating it,

16 and the place in which it is conducted.” Id. at 559.5

17

4
The Court clarified a “clear indication” to mean “the necessity for particularized
suspicion that the evidence sought might be found within the body of the individual.”
United States v. Montoya De Hernandez, 473 U.S. 531, 540 (1985).
5
The Court in Bell did not speak to the issue of whether arrestees were subject to
the same standard.

5
 1 Following Bell, this Circuit and others were wary to uphold body cavity searches

2 as constitutional, under the test for reasonableness. The Circuits hesitated, stating that

3 such searches are invasive and degrading. See Hartline v. Gallo, 546 F.3d 95, 102 (2d

4 Cir. 2008); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)

5 (recognizing “strip searches involving the visual inspection of the anal and genital areas

6 as ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant,

7 embarrassing, repulsive, signifying degradation and submission”); see also Arruda v.

8 Fair, 710 F.2d 886, 887 (1st Cir. 1983). In fact, the Supreme Court agreed with this

9 depiction, stating that body cavity searches were the “most intrusive” of all searches.

10 Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 672 (1995). As stated in a related Fourth

11 Amendment case, the general consensus was that, “[s]uch an invasion of bodily integrity

12 implicates an individual’s most personal and deep-rooted expectations of privacy.”

13 Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (internal quotation marks omitted).

14 Thus, for over two decades, this Circuit understood that cavity searches for

15 misdemeanants would be unjustified unless they satisfied the heightened standard. Weber

16 v. Dell, 804 F.2d 796, 802 (2d Cir. 1986). In Weber, we stated that the Supreme Court

17 had not “read out of the Constitution the provision of general application that a search be

18 justified as reasonable under the circumstances.” Id. at 800. Nor had it “free[d] prison

19 officials from all Fourth Amendment constraints.” Id. Thus, we held that a strip search

20 of a misdemeanor arrestee is unlawful unless there is “reasonable suspicion that the

21 arrestee is concealing weapons or other contraband based on the crime charged, the

6
 1 particular characteristics of the arrestee, and/or the circumstances of the arrest.” Id. at

2 802.6

3 Following Weber, for years this Circuit has repeatedly affirmed the rule that body

4 cavity searches, particularly for misdemeanants, must be justified by an individualized

5 reasonable suspicion. See Hartline, 546 F.3d at 100-01 (quoting Weber, 804 F.2d at 802)

6 (citing persuasive authority for the proposition that “it is [not] reasonable to strip search

7 every inmate booked on a drug related charge” and reasoning that otherwise “strip

8 searches will become commonplace”); see also Kelsey v. Cnty. of Schoharie, 567 F.3d 54,

9 62 (2d Cir. 2009) (reiterating the Circuit’s “long-standing precedent covering strip

10 searches for those arrested for misdemeanors” and collecting cases) (citations omitted);

11 N.G. v. Connecticut, 382 F.3d 225, 232 (2d Cir. 2004) (noting that “all the circuits to have

12 considered this issue have reached the same conclusion”); Shain v. Ellison, 273 F.3d 56,

13 64-65 (2d Cir. 2001); Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994);

14 Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir. 1988). For example, in Shain, we held “it

15 was clearly established in 1995 that persons charged with a misdemeanor and remanded

16 to a local correctional facility . . . have a right to be free of a strip search absent

17 reasonable suspicion that they are carrying contraband or weapons.” 273 F.3d at 66. We

6
In essence, this standard required more than an “inchoate and unparticularized
suspicion or ‘hunch.’” Terry v. Ohio, 392 U.S. 1, 27 (1968). Instead, the reasonable
suspicion standard requires individualized suspicion, specifically directed to the person
targeted for the strip search, and reasonable cause to believe that drugs or other
contraband are concealed in the particular place to be searched with some indicia of
reliability. Hartline, 546 F.3d at 100.

7
 1 concluded the county’s “visual body cavity search” of a misdemeanant absent reasonable

2 suspicion violated the Fourth Amendment. Id.

3 Despite these consistent rulings rejecting the constitutionality of body cavity

4 searches, appellees and the majority persist in arguing that the rule was not clearly

5 foreshadowed, because in this case Gonzalez was arrested for a felony, and the Second

6 Circuit cases deal exclusively with misdemeanors. Appellees argument fails, however,

7 because this Court and the Supreme Court had both clearly foreshadowed that the

8 heightened standard applied regardless of a person’s status.

9 In Shain, we recognized, “we long had stressed the intrusive nature of body cavity

10 searches.” Id. at 63. In addition to this guiding principle, we stated that whether our

11 heightened standard applied to felony arrestees was at least an open issue, id. at 64,7 and

12 intimated that if this Circuit was asked that question, we would likely resolve it in

13 Gonzalez’s favor given that status should not affect a person’s rights, id. at 66 n.3.8

14 Although not explicitly held, this suggestion was echoed by the Supreme Court’s in

15 Tennessee v. Garner, 471 U.S. 1, 14 (1985), which undermined the distinction between a

16 felon and a misdemeanant as “untenable.” Thus, this Court and the Supreme Court both

17 suggested that all body cavity searches must be conducted according to a heightened

7
Though we did also state, “[t]here is no basis for concluding that pretrial
detainees pose any lesser security risk than convicted inmates.” Shain, 273 F.3d at 64 n.2
8
In a footnote, we stated that “we do not rely solely on Shain’s status as a pretrial
detainee” in order to find that this search violated the Fourth Amendment. Shain, 273
F.3d at 66 n.3.

8
 1 standard regardless of a person’s arrestee status. As Appellees admit in their brief, “the

2 distinction between the types of searches was evolving” in this direction. Appellees’ Br.

3 at 16.

4 Guided by these cases, the Southern District of New York came to this exact

5 conclusion. It held that, the language of the Supreme Court and this Circuit

6 foreshadowed that the stringent standard for body cavity searches applies to felony

7 arrestees as well as misdemeanants. See Sarnicola v. Cnty. of Westchester, 229 F. Supp.

8 2d 259 (S.D.N.Y. 2002); Murcia v. Cnty. of Orange, 226 F. Supp. 2d 489 (S.D.N.Y.

9 2002); Dodge v. Cnty. of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002).9 In Murcia, the district

10 court, like the majority here, acknowledged that “the Second Circuit has not spoken

11 directly to the appropriate test for the validity of a strip search.”

12 However, unlike the majority, it correctly asked if this rule was clearly

13 foreshadowed despite “the absence of specific authority directly on point.” Varrone, 123

14 F.3d at 79. Applying that analysis, the district court observed that this “Circuit has held

15 blanket policies subjecting all newly-arrested misdemeanor detainees in a local

16 correctional facility to visual body cavity searches are unconstitutional.” Murcia, 226 F.

9
The majority tries to disclaim these holdings because they were decided by a
single judge in the Southern District of New York. However, I know of no case law
which holds that the singularity of a judge undermines the weight of the decision.
Regardless this judge was not alone. Other judges in our district courts have observed
this rule. See Sims v. Farrelly, No. 10 Civ. 4765, 2013 WL 3972460, at *8 (S.D.N.Y.
Aug. 2, 2013); Sorrell v. Inc. Vill. of Lynbrook, 2012 WL 1999642, at *6 (E.D.N.Y. June
4, 2012); McBean v. City of New York, 260 F.R.D. 120, 130 (S.D.N.Y. 2009); Harriston
v. Mead, No. 05 CV 2058, 2008 WL 4507608, at *3 (E.D.N.Y. Sep 30, 2008).

9
 1 Supp. 2d at 493. The Murcia court also stated that the Supreme Court wrote in Garner

2 that, “[i]n the context of Fourth Amendment searches and seizures . . . the distinction

3 between felonies and misdemeanors is minor and often arbitrary,” Id. at 494 (internal

4 quotation marks omitted).9 It concluded,

5 Coupling [the Supreme Court’s] words with the Second Circuit’s strong statements
6 about constitutional protections for strip searches of accused misdemeanants,
7 [allows for the conclusion] that the law in this Circuit does not countenance a
8 policy mandating strip searches of all felony arrestees simply because they stand
9 accused of felonies.
10
11 Id. at 494. Having correctly determined we “clearly foreshadowed” the rule, the court

12 then held, “[t]he ‘individualized reasonable suspicion’ rule should apply to accused felons

13 as well as misdemeanants upon arrival at a local correctional facility.” Id.

14 In Sarnicola, the lower court once again came to the same conclusion. It stated

15 that although this “Circuit ha[d] not spoken directly to the appropriate test for the validity

16 of a strip search incident to a felony arrest, [the district court in Murcia] recently opined

17 that the Court of Appeals would apply the particularized reasonable suspicion test to

18 searches of felony arrestees as well” because “[i]n the sixteen years following Weber, the

19 Second Circuit has firmly held that strip searches of persons lawfully arrested for minor

20 infractions (misdemeanors and violations) must be justified by an individualized

21 reasonable suspicion of concealed weapons or contraband.” Sarnicola, 229 F. Supp. 2d at

9
The district court also cited to Garner for the proposition that “[m]any crimes
classified as misdemeanors, or nonexistent, at common law are now felonies,” and
“numerous misdemeanors involve conduct more dangerous than many felonies.” Murcia,
226 F. Supp. 2d at 494.

10
 1 269-70. The lower court also observed that the Supreme Court had previously stated that

2 “the assumption that a ‘felon’ is more dangerous than a misdemeanant [is] untenable.”

3 Id. at 270 n.4 (citing Garner, 471 U.S. at 14). Thus, finding the rule had already been

4 forecast, it stated that “no constitutional prerogative [exists in creating a distinction for

5 felony arrests in order to] strip search individuals in the absence of particularized

6 reasonable suspicion that they are carrying drugs or contraband.” Id. at 270.

7 In these cases, the district court drew from the principles and inferences made by

8 our Circuit and the Supreme Court for nearly two decades to deduce the foreshadowed

9 conclusion that the individualized reasonable suspicion rule should apply to searches so

10 intrusive regardless of a person’s status.

11 The district court was not alone in its deduction. In People v. More, 97 N.Y 2d

12 209, 214 (2002), and then People v. Hall, 10 N.Y.3d 303, 310-11 (2008), the New York

13 Court of Appeals also found that an anal cavity search of a felony arrestee had to meet a

14 heightened standard. In More, officers arrested a defendant in his home in close

15 proximity to what appeared to be drugs. More, 97 N.Y.2d at 212. The initial “pat-down”

16 yielded no evidence of drugs, but, regardless, police conducted an anal cavity search. Id.

17 The New York Court of Appeals held the body cavity search of defendant incident to his

18 arrest was unreasonable and invalid, and drugs seized from his rectum must be suppressed

19 because the Fourth Amendment requires a “clear indication” that contraband will be

20

21

11
 1 found, in order to make the more intrusive search, “beyond the body’s surface.” Id. at

2 212-13.10

3 In Hall, the New York Court of Appeals once again held that “because a manual

4 cavity search is more intrusive” a heightened standard must exist, regardless of a person’s

5 felony status. Hall, 10 N.Y.3d at 310-11. The court stated,

6 To advance to the next level required for a visual cavity inspection, the police must
7 have a specific, articulable factual basis supporting a reasonable suspicion to
8 believe the arrestee secreted evidence inside a body cavity and the visual
9 inspection must be conducted reasonably. If an object is visually detected or other
10 information provides probable cause that an object is hidden inside the arrestee’s
11 body, Schmerber dictates that a warrant be obtained before conducting a body
12 cavity search unless an emergency situation exists.

13 Id. The court noted that “visual cavity inspections . . . cannot be routinely undertaken as

14 incident to all drug arrests or permitted under a police department’s blanket policy that

15 subjects persons suspected of certain crimes to [this] procedure[].” Id. at 311.

16 Despite Supreme Court precedent and over two decades of this Circuit’s case law

17 rejecting cavity searches, the district court stated and Appellees still contend that the rule

10
Since then, state courts have continued to hold that rule. For example, more
recently, that rule was applied in a case with a similar fact pattern to the case at hand. In
People v. Robinson, the Supreme Court of New York County found that although police
had probable cause to arrest the defendant after observing him sell cocaine, the police’s
strip search was unreasonable. People v. Robinson, 39 Misc. 3d 1234(A), at *3 (N.Y.Sup.
Ct. 2013) (“There was no evidence that the [search] was based on any particularized facts
that led police to believe that this particular defendant was concealing evidence beneath
his clothes.”)

12
 1 was not clearly established until Hall, 10 N.Y.3d at 310-11.11 Regardless of Hall, the rule

2 established therein was already clearly suggested by the Supreme Court and presaged by

3 this Circuit. As the majority states, “we have repeatedly held that police may not conduct

4 a suspicionless strip or body cavity search.” Even if no federal case prior to Hall stated

5 the rule as explicitly applying to felony arrestees, the waterfall of decisions from

6 Schmerber to Weber to Shain to Murcia made Hall’s and Sarnicola’s ultimate results a

7 fait accompli–as reflections of this Circuit’s developing case law. In addition, even

8 Appellees are in accord with the district court and the New York Court of Appeals,

9 recognizing that the rule on searches was “evolving” in this direction. Appellees’ Br. at

10 16. We have held that such foreshadowing requires the rule to be deemed clearly

11 established. See Varrone, 123 F.3d at 78-79; Scott v. Fischer, 616 F.3d 100, 105 (2d Cir.

12 2010). Accordingly, where the Supreme Court and this Court clearly foreshadowed a

11
The majority correctly clarifies the present question is not just whether there was
a clearly established rule but whether there was a clearly established federal constitutional
right. Therefore, Hall is not determinative. But what the majority fails to notice is that
Hall stated it was only reaffirming pre-existing law of the Supreme Court. The New
York court recognized, “the rule announced in Schmerber is unequivocal . . . searches
involving intrusions beyond the body’s surface” require some stricter standard. Hall, 10
N.Y.3d at 313 (citing Schmerber, 384 U.S. at 769). Hall thus clarified it was not a new
rule but a directive from the Supreme Court’s holding in Schmerber. Id. at 310
(“Schmerber . . . dictates that a more stringent standard be applied to a physical search of
an arrestee’s body cavity”). Moreover, that case opined that the state court had itself
adopted this rule previously in More. The Hall court stated, “[in o]ur most recent
decision addressing a search into a person’s body[,] People v. More, 97 N.Y.2d 209
(2002) . . . . We recognized that a search of this nature was at least as intrusive as the
blood test procedures in Schmerber . . . [and] we held that the removal of the object from
the defendant’s rectum without prior judicial authorization violated the Fourth
Amendment.” Hall, 10 N.Y.3d at 310 (internal quotation marks and alteration omitted).

13
 1 ruling on the issue, and other courts have also acknowledged this outcome, we should

2 conclude that the rule was clearly established.

3 III.

4 Moreover, “[e]ven in the absence of binding precedent, a right is clearly

5 established if the contours of the right are sufficiently clear that a reasonable official

6 would understand that what he is doing violates that right. The unlawfulness must be

7 apparent.” Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (citing Anderson,

8 483 U.S. at 640) (internal quotation marks and alterations omitted). “Officials are held to

9 have constructive knowledge of established law.” Salahuddin v. Coughlin, 781 F.2d 24,

10 27 (2d Cir. 1986).

11 The majority admits “we have repeatedly held that police may not conduct a

12 suspicionless strip or body cavity search” and also that “we can expect police officers to

13 be familiar with black-letter law.” It further states, “[t]he officers do not dispute that the

14 search violated Gonzalez’s right to be free from unreasonable searches.” However, still it

15 somehow concludes that “reasonable officers could disagree as to whether that rule

16 applied to those arrested for felony drug crimes.” I do not agree. An objectively

17 reasonable officer, familiar with our case law, would certainly have understood that

18 conducting Gonzalez’s suspicionless body cavity search was unlawful. In addition to

19 cases in this Circuit having consistently affirmed that cavity searches require heightened

20 particularity, Hall pronounced, “[o]ur precedent on this point [as to felony arrestees] is

21 unequivocal,” Hall, 10 N.Y.3d at 311, thus demonstrating that officers with presumed

22 knowledge of the law were clearly on notice.

14
 1 In addition the initial search and pat down revealed no protruding object. Without

2 more particularized suspicion—that the evidence sought was likely to be found within

3 Gonzalez’s body—no officer could have concluded the cavity search was reasonable.

4 Unlike other circumstances where a “small hard object” was detected in a defendant’s

5 initial strip search, Gonzalez’s initial strip search did not reveal any hard objects. Cf.

6 People v. Clayton, 57 A.D.3d 557, 558 (N.Y. App. Div. 2008). Therefore, as in

7 Schmerber, absent some more, clear indication of Gonzalez harboring drugs or other

8 paraphernalia, the cavity search was a clear violation of plaintiff’s Fourth Amendment

9 rights, such that no officer could find it reasonable.

10 The facts here are also distinguishable from Clayton, 57 A.D.3d 557, where the

11 searching officer testified that the defendant had a history of secreting contraband. Id. at

12 559. Here, “Gonzalez was not a target of the police’s buy bust operation.” Gonzalez,

13 2011 WL 6010910, at *1 n.1. Therefore, we may assume the police had no background

14 information on Gonzalez, his connection to the drug trade, or his history as to secreting

15 contraband. Thus, the officers lacked requisite information for the body cavity search to

16 be considered reasonable and unjustifiably still conducted a suspicionless search.

17 Here, the only thing giving police suspicion that Gonzalez was secreting

18 contraband was “defendant’s statement that he could get” drugs, having said, “I can get

19 you whatever you need.” However, that statement did not explain 1) what kind of drugs;

20 2) what amount; or 3) when the sale would occur. As the Appellate Division in this case

21 stated, “[Gonzalez’s] representation that he could ‘get you whatever you need’ was vague

15
 1 as to whether he actually possessed narcotics at the time and did not provide a specific,

2 articulable basis to prompt the visual cavity inspection.” Gonzalez, 57 A.D.3d at 1222.

3 In fact, Gonzalez’s use of the future tense suggests the opposite conclusion, that he had

4 no drugs on his person and therefore could get it if requested. See Schmerber, 384 U.S. at

5 769-70 (“the Fourth Amendment . . . forbid[s] any such intrusions on the mere chance

6 that desired evidence might be obtained.”)

7 Moreover, even accepting that the strip search of the defendant was in accordance

8 with police procedure, that, too, does not excuse police who should have known that to

9 perform a strip search of the defendant absent reasonable suspicion was unjustified. See

10 Hartline, 546 F.3d at 100-01 (“even if there were a departmental policy of strip searching

11 all arrestees without making any assessment of particularized circumstances, the relevant

12 question is still: Do the circumstances of [the] arrest support a reasonable suspicion that

13 she was secreting contraband on her person?”).

14 Accordingly, where the unlawfulness was “apparent,” Anderson, 483 U.S. at 640,

15 and the searching officers suspicion was based on “vague” information, an objectively

16 reasonable person in the officer’s position should have known that this conduct was

17 unreasonable and qualified immunity should therefore not apply.

18 IV.

19 The gross violation of personal privacy cannot be outweighed by the government’s

20 interest where only a mere chance existed that the desired evidence would be obtained.

21 “There is no iron curtain drawn between the Constitution and the prisons of this country.”

16
 1 Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). Included in those constitutional rights

2 “when it comes to the Fourth Amendment,” is the rule that “the home is the first among

3 equals.” Florida v. Jardines, 33 S. Ct. 1409, 1413-14 (2013). It is at the Amendment’s

4 “‘very core.’” Id. As a person’s body is the ultimate home, it must be at the nucleus of

5 the Amendment. Thus, an invasion into the body is just as much—if not even

6 more—extreme in practice than an intrusive entry into a home. See United States v.

7 Martinez-Fuerte, 428 U.S. 543, 561 (1976) (explaining that body searches are “ordinarily

8 afforded the most stringent Fourth Amendment protection”). In fact, the Court has

9 recently reaffirmed its commitment to the reasonableness inquiry and Schmerber rule, as

10 touchstones of the Fourth Amendment analysis. See McNeely, 133 S. Ct. at 1565. (“We

11 have never retreated, however, from our recognition that any compelled intrusion into the

12 human body implicates significant, constitutionally protected privacy interests.”)

13 Therefore, these protections stand regardless of a person’s arrestee status. The

14 proscription against unreasonable body cavity searches, held as a consistent and core rule

15 of the Fourth Amendment, should not be ignored simply because of an arbitrary

16 distinction as to a person’s status. To hold otherwise suggests that body cavity searches

17 are so commonplace that we do not treat them as the ultimate invasive search. See

18 Veronia, 515 U.S. at 672 (stating these are the “most intrusive searches”). Such a

19 conclusion is unacceptable in any society that takes privacy, dignity, and bodily integrity

20 seriously.

21

17
1 V.

2 For these reasons, I respectfully dissent as to Part III of the majority’s opinion.

3

18