FILED
NOT FOR PUBLICATION JUN 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
JOHN BURTON, No. 09-35466
Plaintiff - Appellant, D.C. No. 2:06-cv-00322-RHW
v.
MEMORANDUM *
SPOKANE POLICE DEPARTMENT,
(SPD) Uniformed Public Safety Division;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted May 12, 2010
San Francisco, California
Before: HUG, RYMER and McKEOWN, Circuit Judges.
John Burton appeals the district court's summary judgment in favor of
Detective Larry Bowman, the City of Spoµane and the Spoµane Police Department.
In his 42 U.S.C. y 1983 action, Burton alleged that Bowman and other officers
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violated his Fourth Amendment rights when strip searching him at a private
residence and that the Spoµane Police Department utilized an unconstitutional
blanµet policy allowing officers to conduct warrantless strip searches at the place
of arrest. The parties are familiar with the facts. We do not repeat them. We have
jurisdiction pursuant to 28 U.S.C. y 1291, and we affirm.
I. Fourth Amendment
The district court correctly found that the individual officers were entitled to
qualified immunity with respect to their decision to strip search Burton. Police
officers are, in general, 'shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have µnown.' Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Here, there is no dispute that probable cause existed to arrest
Burton and search the premises for cracµ cocaine. The resulting patdown and
clothing search of Burton produced no drugs. For that reason and because Burton
as well as other drug dealers in the area were µnown to hide drugs in body cavities,
the officers had probable cause to proceed with a visual search of the external areas
of Burton's buttocµs to avoid loss of the suspected evidence. See, e.g., Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1446, 1449 (9th Cir. 1991). The search must, of
course, still be conducted in a reasonable manner. Kennedy v. Los Angeles Police
2
Dep't, 901 F.2d 702, 712 (9th Cir. 1989), overruled on other grounds by Hunter v.
Bryant, 502 U.S. 224 (1991). Kennedy requires courts to balance the need for the
particular search against the invasion of personal rights that the search entails,
consider the scope of the particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it is conducted. These
factors militate in favor of defendants here. Burton also contends that the brief
presence of a female canine police officer during the search violated this standard.
However, no clearly established law informed the officers that this would be the
case. See, e.g., Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (holding
that the occasional viewing of inmates by female prison guards was justified under
the Fourth Amendment).
II. Alleged Blanµet Strip Search Policy
Burton argues that two other incidents in which the Spoµane Police
Department conducted strip searches of suspects without warrants specifically
authorizing such searches constitute an official policy under which the City of
Spoµane and its police department may be held liable for the actions of its officers.
However, for this argument to have merit, the custom or usage must be so
'permanent and well settled' as to have the force of law. Adicµes v. S. H. Kress &
Co., 398 U.S. 144, 167-68 (1970). This was not the case here.
3
AFFIRMED.
4
FILED
Burton v. Spoµane Police Dept. JUN 14 2010
No. 09-35466 MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
Rymer, Circuit Judge, concurring.
I agree that this is a case in which we should first decide whether the right
Burton asserts was clearly established at the time the officers conducted a visual
body cavity search, Pearson v. Callahan, 129 S. Ct. 808, 813 (2009), and that the
officers here could reasonably believe that their conduct complied with the law. I
would affirm because the officers had a search warrant for the premises and
Burton. They also µnew he had engaged in two previous drug transactions; the
officers had set up a controlled purchase through M.S.; it was 'absolutely clear' to
them that the only reason Burton arrived on schedule was to deliver the drugs; and
they believed Burton had cracµ on him, but none turned up during a routine search
of clothing, mouth, or hair. As the district court held, Washington law authorized
the strip search given the warrant, and no federal law clearly holds to the contrary.
Cf. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1450 (9th Cir. 1991) (suggesting a
visual body cavity search may only be made pursuant to a warrant or exigent
circumstances).
Nor would clearly established law have informed the officers that they
conducted the search unconstitutionally. Assuming the facts as stated by Burton in
both affidavits to be true, he nevertheless also accepted as true the officers'
statements of fact. Thus, among other things, the strip search was conducted in a
private area of the house. It tooµ a second or two. Even if one of the officers
could have made the comments attributed to him in a second or two, at most the
remarµs would be unprofessional, but not unconstitutional under clearly
established law. And even if a female officer were present, she didn't participate.
In light of Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985), and
Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988), the officers would
not reasonably have µnown that the presence of a female officer who momentarily
observed an unclad male was constitutionally forbidden.
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