Wood v. MCC Superintendant

United States Court of Appeals
For the First Circuit

No. 96-1078

SHARON WOOD ET AL.,

Plaintiffs, Appellants,

v.

JAMES R. CLEMONS ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

John S. Whitman, with whom Richardson, Whitman, Large &

Badger was on brief, for appellants.

Diane Sleek, Assistant Attorney General, with whom Andrew

Ketterer, Attorney General of Maine, was on brief, for appellees.

July 22, 1996

LYNCH, Circuit Judge. Officers at a Maine prison

received a tip that a female inmate's teenage children would

be smuggling drugs into the prison in her infant

granddaughter's booties. The superintendent of the prison,

erroneously believing that the tip had been confirmed by two

unconnected confidential informants, authorized a strip

search of the visitors. In actuality, the tip had originated

from a single anonymous and uncorroborated source. The strip

search of the plaintiff minors turned up no drugs.

Plaintiffs brought suit against the superintendent and the

Commissioner of the Maine Department of Corrections under 42

U.S.C. 1983.1 The sole question on appeal is whether the

district court correctly entered summary judgment on the

plaintiffs' damages claim in favor of the superintendent

based on his assertion of the qualified immunity defense. We

conclude that the constitutionality of prison-visitor strip

searches is governed by the standard of reasonable suspicion

and that a reasonable official in the superintendent's

position could have believed, in light of the information

1. The named plaintiffs in this action are Sharon Wood; her
son Philip Thamert; her daughter Katrina Thamert, on her own
behalf and as parent of Maria Thamert; and John and Mary
Foss, as parents and next friends of Michelle Hatch, Phillip
Thamert's girlfriend. They purport to assert their claims on
behalf of a statewide class of individuals affected by the
alleged strip-search policies of the Maine Correctional
Center ("MCC"). The defendants are James R. Clemons,
Superintendent of the MCC, and Donald L. Allen, Commissioner
of the Maine Department of Corrections.

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before him, that the searches did not violate the plaintiffs'

constitutional rights. Accordingly, we affirm.

I

The record, viewed in the light most favorable to the

plaintiffs, reveals the following. Since September of 1993,

Sharon Wood had been an inmate at the Maine Correctional

Center ("MCC") in Windham, Maine, serving a three-year term

of confinement for a drug-related conviction. From the time

she was first incarcerated there, she was visited

approximately every other week by her son Phillip Thamert

(then seventeen years of age), her daughter Katrina Thamert

(then sixteen), and Phillip's girlfriend Michelle Hatch (then

seventeen). On each visit, Katrina brought along her infant

daughter Maria (then seven months old). Nothing happened

during any of these visits to arouse any suspicion of illegal

activity on the part of Wood or her visitors. Wood had no

record of drug violations while at MCC.

The events leading to the strip search of Wood's

visitors began with a telephone call to the MCC by Detective

Peter Herring, the State Police Department's appointed

liaison to the prison. On a "large number" of previous

occasions, Herring had provided MCC officials with

information obtained from his own confidential sources about

criminal activity at the prison. Herring's information had

invariably turned out to be accurate in the past.

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On January 5, 1994, Herring called the MCC to provide

another tip. Corrections Officers Charles Baker and Stephen

Butts, both responsible for criminal investigations within

the MCC, fielded Herring's call together. Herring told Baker

and Butts that he had obtained information that inmate Sharon

Wood was receiving drugs from the outside. Herring said that

he had been told by a confidential informant who, in turn,

had heard from an anonymous source that Wood was receiving

drugs during visits, and that the drugs were being smuggled

into the prison in her infant granddaughter's booties.

Herring disclosed to Baker and Butts that he had obtained

this information on a second-hand basis, and that at no time

had Herring spoken directly to the original anonymous source

about the tip. Herring himself had no personal knowledge of

Sharon Wood or the persons who were supposedly bringing drugs

to her. Herring did not provide Baker or Butts with the name

of either his confidential informant or the original source

of the tip.2

Soon after the phone call, Officer Baker prepared a

written report of the conversation with Herring. Baker's

report, however, contained an important inaccuracy. That

inaccuracy may be what ultimately allowed the strip search to

take place. The report implied that the information about

2. The record does not clearly indicate whether Herring ever
knew the identity of the original tipster.

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Wood had been provided to Herring by two independent,

mutually corroborating confidential informants:

Det Peter Herring advised Butts and Baker that
he received information from two separate CI's
that prisoner Sharon Wood (Dorm 2) is allegedly
receiving drugs during visits. Supposedly, the
drugs are hidden in Wood's granddaughter's
booties. Security projects office to monitor
and will request appropriate action when
required.

Thus, by indicating that two unconnected "CI's" --

confidential informants -- had provided Detective Herring

with the same information, Baker's report significantly

overrepresented the actual reliability of Herring's tip.

Five days later, on January 10, 1994, defendant James

R. Clemons, Superintendent of the MCC, met with Baker and

Butts to conduct their regular weekly review of security

matters at the prison. At this meeting, Clemons read Baker's

report of the information received from Detective Herring.

It is undisputed that, as a result of reviewing the report,

Clemons came to believe in good faith that two separate

confidential sources had provided Herring with precisely the

same tip concerning drug-smuggling by Sharon Wood's visitors.

Clemons signed Baker's report to acknowledge that he had

reviewed it and to confirm that the security projects office

run by Baker and Butts would monitor the situation and notify

Clemons if and when any further action became appropriate.

Following the January 10 meeting, no one at the MCC,

including Clemons, conducted any additional investigation or

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follow-up concerning the Herring tip. No action was taken on

the tip prior to the plaintiffs' next visit to the MCC.

That visit came on February 22, 1994. At 10:00 a.m.

that morning, Officer Baker noticed the names of Wood's

children on the prison visitor schedule for that day.

Recalling the phone conversation with Peter Herring on

January 5, Baker paged Superintendent Clemons, who was at his

home, to request authorization to conduct a strip search of

the visitors based on the Herring tip. About twenty minutes

later, Clemons responded to Baker's page and authorized a

strip search of Wood's scheduled visitors. Baker then called

Detective Herring to inform him of the impending search.

Herring agreed to stand by in case arrests had to be made.

Katrina and Phillip Thamert, Katrina's baby, and

Michelle Hatch arrived at the prison at about 1:20 p.m.

After Katrina, Phillip and Michelle signed in, Officer Baker

and another officer took them aside and told them that they

would have to submit to a search for contraband drugs before

they would be permitted to see Sharon Wood. Baker read a

"consent to search" form to the visitors, advising them of

their constitutional rights to refuse to give consent and to

require the prison to obtain search warrants, and to withdraw

consent at any time prior to the conclusion of the search.

The form also said that if the visitors refused to consent to

the search, their visiting privileges would be immediately

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and indefinitely terminated. Neither Baker nor the consent

form made clear that the search to which the visitors were

being asked to consent was a strip search. After Baker

finished reading, each of Wood's visitors (except the baby)

signed a consent form.

Katrina Thamert and her baby were then taken by two

female officers to a private bathroom, and Phillip was taken

by two male officers to a private storage room, while

Michelle Hatch waited in the main reception area. Katrina

was asked to remove her baby's clothing and diaper. One of

the two female officers visually inspected the baby and

checked the baby's clothes and diaper for contraband.

Katrina held her baby at all times, and neither officer

touched the baby during the search. Katrina was then told to

put the baby's clothes back on. Although there were no drugs

found on the baby or her clothing, the searches continued.

In the storage room, Phillip was told by the two male

officers to take off his clothing, and he did so. One of the

male officers searched through his clothing and visually

inspected his mouth and ears. He was asked to lift his arms

and his genitals. Neither officer touched Phillip at any

time. He was then permitted to dress and was taken back to

the reception area.

Phillip held Katrina's baby in the reception area

while Katrina was searched in the bathroom by the two female

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officers. After removing her clothing, she was asked to lift

her breasts, and then was told to squat and cough. One of

the officers manually searched her clothing and visually

inspected her mouth and ears. Neither of the officers

touched Katrina during the search. She was permitted to

dress and return to the reception area. The female officers

then escorted Michelle Hatch into the bathroom and went

through the same procedure as they had with Katrina.

None of the searches having turned up contraband, the

visitors were permitted to see Sharon Wood. Katrina,

Phillip, and Michelle told Wood about the strip searches.

Following the visit, Wood filed an internal grievance with

the MCC. After an internal investigation, Superintendent

Clemons responded to Wood with a memorandum asserting that

the strip searches had not violated any prison regulation or

policy. Shortly thereafter, the Commissioner of the Maine

Department of Corrections affirmed Clemons' decision. This

lawsuit followed.

II

The plaintiffs' amended complaint sought damages, an

injunction, and declaratory relief for a variety of alleged

constitutional violations and common law torts arising out of

the strip searches. The district court, on cross-motions for

summary judgment and partial summary judgment, granted the

defendants' motion for summary judgment in its entirety and

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denied the plaintiffs' motions for class certification and to

file a second amended complaint.

The plaintiffs appeal solely from the district court's

entry of judgment in favor of defendant Clemons as to their

claim for damages under 1983 based on his alleged

violations of the plaintiffs' Fourth Amendment rights. The

only question in this appeal is whether the district court

correctly concluded that Clemons is entitled to qualified

immunity from the plaintiffs' damages claim under 1983.

The plaintiffs argue that Clemons is not entitled to

qualified immunity here, because any reasonable official in

Clemons' position would have known that the Fourth Amendment

does not permit officials to undertake a strip search based

on an uncorroborated tip received from a single anonymous

source.

We review the district court's grant of summary

judgment de novo. See St. Hilaire v. City of Laconia, 71

F.3d 20, 24 (1st Cir. 1995), cert. denied, 64 U.S.L.W. 3849

(1996). The ultimate question of whether a defendant is

entitled, on a given set of facts, to the protection of

qualified immunity is a question of law for the court to

decide. See id. at 24 n.1; Prokey v. Watkins, 942 F.2d 67,

73 (1st Cir. 1990); Cortes-Quinones v. Jimenez-Nettleship,

842 F.2d 556, 561 (1st Cir.), cert. denied, 488 U.S. 823

(1988).

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III

The "touchstone" of the qualified immunity question is

the concept of "objective legal reasonableness." See

Anderson v. Creighton, 483 U.S. 635, 639 (1987). Could an

objectively reasonable official, situated similarly to the

defendant, have believed that his conduct did not violate the

plaintiffs' constitutional rights, in light of clearly

established law and the information possessed by the

defendant at the time of the allegedly wrongful conduct? See

Hegarty v. Somerset County, 53 F.3d 1367, 1373 (1st Cir.),

cert. denied, 116 S. Ct. 675 (1995); Singer v. Maine, 49 F.3d

837, 844 (1st Cir. 1995). Here, the plaintiffs contend that

Clemons' conduct -- authorizing the strip searches --

violated their clearly established rights under the Fourth

Amendment and fell below the operative threshold of objective

legal reasonableness.

Clemons disputes the plaintiffs' position both as to

the level of suspicion required to justify strip searches of

prison visitors, and as to when the legal rule embracing that

level of suspicion became "clearly established."3 On the

3. Clemons, appropriately, makes no serious argument that
the plaintiffs' signing of the "consent to search" forms on
the day of the visit constitutionally justified the searches.
See Cochrane v. Quattrocchi, 949 F.2d 11, 14 (1st Cir. 1991)

("[A] prison visitor confronted with the choice between
submitting to a strip search or foregoing [sic] a visit
cannot provide a 'legally cognizable consent,'" because "it
is the very choice to which [the visitor] [is] put that is
constitutionally intolerable." (quoting Blackburn v. Snow,

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first issue, we agree with the plaintiffs that a prison-

visitor strip search must be predicated upon "reasonable

suspicion." Finding no need to resolve the second question,

however, we conclude that the defendant is entitled to

qualified immunity on the record here, accepting arguendo the

plaintiffs' contention as to when the relevant law became

clearly established.

A

We begin by examining the nature of the Fourth

Amendment protections to which the plaintiffs were entitled

as visitors to the MCC. Although a generous amount of

deference is given to prison officials on matters of prison

safety, security, and discipline, see, e.g., Bell v. Wolfish,

441 U.S. 520, 547-48 (1979), it is clear that visitors do not

relinquish their Fourth Amendment rights at the prison gates.

See Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir. 1985).

Prison visitors retain the right to be free from unreasonable

searches and seizures. Cochrane v. Quattrocchi, 949 F.2d 11,

13 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992). The

meaning of "reasonableness" for Fourth Amendment purposes is

highly situational. A search that is reasonable in the

prison environment may not be in other contexts less "fraught

with serious security dangers." Bell, 441 U.S. at 559. The

771 F.2d 556, 568, 569 (1st Cir. 1985)), cert. denied, 504

U.S. 985 (1992).

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standard of "reasonableness" that governs searches in a given

context depends, in general, upon a balancing of "the need to

search against the invasion which the search entails."

Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967); see

also Blackburn, 771 F.2d at 564.

In the volatile context of a prison, the need to

preserve internal security is very strong. See Blackburn,

771 F.2d at 562 (quoting Hudson v. Palmer, 468 U.S. 517, 526

(1984)). Prison officials may well have a need to search

visitors in some manner in order to prevent the smuggling of

contraband (such as drugs or weapons) to inmates. On the

other side of the balance, people naturally have a

"diminished expectation of privacy" when they enter a prison,

Blackburn, 771 F.2d at 564, and so "those visiting a prison

cannot credibly claim to carry with them the full panoply of

rights they normally enjoy," id. at 563; see also Spear v.

Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (discussing

constitutionality of routine visitor searches).

However, a strip search can hardly be characterized as

a routine procedure or as a minimally intrusive means of

maintaining prison security. Indeed, "'a strip search, by

its very nature, constitutes an extreme intrusion upon

personal privacy, as well as an offense to the dignity of the

individual.'" Cochrane, 949 F.2d at 13 (quoting Burns v.

Loranger, 907 F.2d 233, 235 n.6 (1st Cir. 1990)).

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Accordingly, a strip search cannot be justified absent some

quantum of individualized suspicion. See Blackburn, 771 F.2d

at 564-65 (invalidating as unconstitutional a prison policy

requiring strip searches of all visitors without any

particularized suspicion of illegal activity).

In determining the level of individualized suspicion

against which to test the constitutionality of prison-visitor

strip searches with a view to striking the proper balance

between respecting the legitimate privacy expectations of

prison visitors and the need to maintain prison security,

courts have converged upon one common benchmark: the standard

of "reasonable suspicion." See Spear, 71 F.3d at 630; Romo

v. Champion, 46 F.3d 1013, 1020 (10th Cir.), cert. denied,

116 S. Ct. 387 (1995); Daugherty v. Campbell, 935 F.2d 780,

787 (6th Cir. 1991) (Daugherty I), cert. denied, 502 U.S.

1060 (1992); Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir.

1985), cert. denied, 475 U.S. 1016 (1986); Hunter v. Auger,

672 F.2d 668, 674 (8th Cir. 1982); accord Varrone v. Bilotti,

867 F. Supp. 1145, 1149 (E.D.N.Y. 1994). This court has

similarly identified the reasonable suspicion standard,

albeit in another context, as the one by which the

constitutionality of a strip search should be determined.

See United States v. Uricoechea-Casallas, 946 F.2d 162, 166

(1st Cir. 1991) (stating, in context of border searches, that

"[w]here a search is not routine (e.g., a strip search), we

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have applied the 'reasonable suspicion' standard." (citing

UnitedStates v. Wardlaw, 576F.2d 932, 934-35(1st Cir. 1978)).

Without deciding the question whether or when the

reasonable suspicion standard became clearly established in

the prison visitor context in this circuit,4 we now

explicitly state that "reasonable suspicion" is indeed the

proper standard by which to gauge the constitutionality of

prison-visitor strip searches. That standard guards against

arbitrary or clearly unfounded searches by placing non-

trivial constraints upon the ability of prison officials to

strip search visitors, see Daugherty v. Campbell, 33 F.3d

554, 556-57 (6th Cir. 1994) (Daugherty II) (holding that

uncorroborated tips without indicia of reliability do not

create reasonable suspicion), but avoids unduly restricting

prison officials in responding to the demands of

institutional security. The reasonable suspicion standard

thus preserves an appropriate balance between visitors'

legitimate privacy interests and the government's need to

search. In sum, prison officials violate the Fourth

4. Clemons contends that the reasonable suspicion standard
was not clearly established in this circuit as of February
1994. He observes that this court, in its most recent
published opinion addressing the issue before that time, had
reserved the question, saying only that visitor strip
searches require "some as-yet undefined 'level of
individualized suspicion.'" Cochrane, 949 F.2d at 13.

Plaintiffs contend that despite the statement in Cochrane,

decisions in other circuits had made clear by February 1994
that "reasonable suspicion" was indeed the governing
standard.

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Amendment when they undertake a strip search of a prison

visitor without reasonable suspicion of circumstances that

justify the search. The concrete meaning of reasonable

suspicion turns on the facts of each particular case.

B

Plaintiffs can overcome the defendant's assertion of

the qualified immunity defense only by showing that Clemons'

conduct was objectively unreasonable in light of clearly

established law. Assuming, without deciding, for purposes of

our analysis here, that the reasonable suspicion standard was

clearly established law by the date on which the plaintiffs

were strip searched, we conclude that Clemons is entitled to

qualified immunity. A reasonable official in his position

could have believed that there was reasonable suspicion that

the plaintiffs would be bringing drugs to Sharon Wood.5

A "reasonable suspicion" of wrongdoing is something

stronger than a mere "hunch," Terry v. Ohio, 392 U.S. 1, 22

(1967), but something weaker than probable cause. See

Alabama v. White, 496 U.S. 325, 330 (1990); Spear, 71 F.3d at

630. At a minimum, the reasonable suspicion standard

requires that the decision to search be based on articulable

factual information bearing at least some indicia of

5. Plaintiffs do not argue that the Fourth Amendment
required the strip searches to be predicated on any basis
stronger than reasonable suspicion.

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reliability. See, e.g., White, 496 U.S. at 330; United

States v. Sokolow, 490 U.S. 1, 7 (1989). However,

"reasonable suspicion can arise from information that is less

reliable than that required to show probable cause." White,

496 U.S. at 330. Although an anonymous tip, standing alone,

may typically fail to create reasonable suspicion, an

anonymous tip that is corroborated in some measure by actual

facts or by other sources may be enough. See id. at 329-31;

United States v. Walker, 7 F.3d 26, 31 (2d Cir. 1993), cert.

denied, 114 S. Ct. 1201 (1994); United States v. McBride, 801

F.2d 1045, 1047-48 (8th Cir. 1986), cert. denied, 479 U.S.

1100 (1987).

Here, plaintiffs argue that the hearsay tip received

by Detective Herring from his confidential informant, who had

heard it from an anonymous source, did not provide reasonable

suspicion, and that no reasonable official could have thought

differently. The difficulty with this argument is that it

seeks to defeat Clemons' claim of immunity by charging him

with notice of facts that were not actually known to him at

the time he made the decision to authorize the searches.

The issue on appeal is whether Clemons, and not any

other defendant or potential defendant, is entitled to

qualified immunity. The inquiry must focus on whether

Clemons himself acted as a reasonable official might. That

determination can only be made "in light of . . . the

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information [that Clemons] possessed at the time of his

allegedly unlawful conduct." McBride v. Taylor, 924 F.2d

386, 389 (1st Cir. 1991); see also Anderson, 483 U.S. at 641;

Prokey, 942 F.2d at 72. Here, there is no dispute that

Clemons was told by his staff and genuinely believed that

Detective Herring had learned from two unconnected

confidential informants that Sharon Wood's visitors were

smuggling drugs into the MCC in her granddaughter's booties.

The plaintiffs respond by arguing that Clemons acted

unreasonably in accepting Baker's report as true without

conducting further investigation. We disagree. While the

mistake that led to Clemons being misinformed as to the

nature of the tip is not to be condoned, we cannot say, on

the totality of the circumstances of this case, that Clemons

was unjustified in accepting Officer Baker's report at face

value. Over the course of their five-year working

relationship, Clemons had grown to trust Baker to provide him

with reliable information on investigatory matters. Indeed,

Clemons testified at his deposition that Baker had always

provided him with accurate information and, in Clemons'

estimation, was "not one to make assumptions." Similarly, in

Clemons' experience, information provided by Peter Herring to

the MCC in a large number of previous investigations had

always turned out to be accurate, and Clemons had thus come

to consider Herring himself to be a reliable and trustworthy

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source of information. The plaintiffs do not allege that

Clemons' general trust in Baker or in Herring was unjustified

or misplaced.

It is only fair to conclude that Clemons had a

reasonable basis to believe that the tip about Wood's

visitors -- as reported in Baker's memorandum -- had already

been tested for reliability by both Herring and Baker, and

that there was no need for Clemons himself to conduct further

investigation into the tip's sources. And, if Clemons

reasonably believed that the tip, as reported, was reliable,

it would be inconsistent with the basic purpose of the

qualified immunity defense -- i.e., to protect an official's

reasonable judgments from post hoc attack -- to deprive

Clemons of that defense merely because the nature of the tip

was, through no fault of his own, erroneously reported to

him.6 See United States v. Hensley, 469 U.S. 221, 232-33

(1985) (explaining that police officers who make an

investigatory stop based on defensible reliance upon an

erroneous police bulletin may assert immunity in civil suit

6. There is no suggestion here that prison officials
deliberately or systematically misreported information to
Clemons in order to obtain authorizations for strip searches.
Cf. Arizona v. Evans, 115 S. Ct. 1185, 1194 (1995) (O'Connor,

J., concurring) (observing that even though the good faith
exception to the exclusionary rule applied where a police
officer reasonably relied on an erroneous computer record in
making a false arrest, the same might not be true where the
computer records relied upon were known to be systematically
inaccurate).

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for Fourth Amendment violations); cf. United States v. De

Leon-Reyna, 930 F.2d 396, 399-400 (5th Cir. 1991) (en banc)

(border officer's reliance on erroneous information provided

by dispatcher may be objectively reasonable for Fourth

Amendment purposes, even if error was partly result of

officer's own negligence).

Once we accept that Clemons defensibly relied upon the

contents of Baker's report in making the decision to

authorize the strip searches, this case can no longer be

viewed (as plaintiffs would characterize it) as one in which

an official knowingly relied on an uncorroborated, anonymous

tip in carrying out a search. Cf. Daugherty II, 33 F.3d at

557 (rejecting qualified immunity defense where official

authorized strip search of prison visitor based on letters

from "an anonymous inmate and . . . a non-existent person"

and an uncorroborated assertion of a corrections officer7).

Instead, Clemons' authorization of the searches was based on

a tip he believed had been received from two unconnected yet

7. In Daugherty II, the defendant warden conceded that the

letters did not form a basis for reasonable suspicion but
contended that he was entitled to rely on the statements of
the corrections officer. See id. at 557. However, there was

no indication in that case that the warden had any reason to
be unaware of the information's unreliability or to believe
that the officer's statements (unlike Detective Herring's
statements here) were independently trustworthy. In any
event, in rejecting the warden's argument, the Sixth Circuit
stated, "we do not impose a duty on wardens to investigate
the reliability of all their officers' conclusions." Id. at

557.

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mutually corroborating confidential informants, both of whom

Clemons believed had made the highly specific allegation that

visitors were hiding drugs in an infant's booties for an

inmate who was serving time for a drug conviction. Nor can

we ignore that Clemons' assessment of the tip's reliability

was favorably affected by his awareness that it had been

delivered to the MCC by Peter Herring, who, to the best of

Clemons' knowledge, had never before provided prison

officials with information that had turned out to be false.

Viewed in this light, it is difficult to say that

Clemons' decision to authorize the searches was "objectively

legally unreasonable." Anderson, 483 U.S. at 641. Mindful

that "'if there is a legitimate question as to whether an

official's conduct constitutes a constitutional violation,

the official is entitled to qualified immunity,'" Singer, 49

F.3d at 845 (internal quotations omitted), we conclude that

Clemons is entitled to the protection of that defense. An

objectively reasonable official, presented with all of the

information in Clemons' possession and similarly situated,

could very well have believed that there existed a basis for

reasonable suspicion that Wood's visitors would be smuggling

drugs into the MCC.8 Cf. United States v. Wangler, 987 F.2d

8. Plaintiffs do not raise, and we therefore deem waived,
any argument that the tip's focus on the baby's booties
precluded the existence of individualized suspicion as to
Katrina Thamert, Phillip Thamert, or Michelle Hatch.

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228, 230 (5th Cir. 1993) (information provided by "two

unconnected informants" contributed to reasonable suspicion

that suspect was carrying drugs).9

IV

We conclude that defendant Clemons is entitled to

qualified immunity from personal liability for his alleged

violation of the plaintiffs' constitutional right, as prison

visitors, not to be strip searched except upon reasonable

suspicion that they were carrying contraband. Clemons, in

defensible reliance on written information provided to him by

a trusted prison official, believed in good faith that a

police detective with a proven track record of feeding

invariably accurate investigative information to the prison

had learned that two unconnected confidential informants had

separately reported the same highly specific allegation that

the visitors of a named female inmate were smuggling drugs

9. Of course, to say such a belief would have been
reasonable is not to imply that it would have been legally
correct. Lowinger v. Broderick, 50 F.3d 61, 65 (1st Cir.

1995) ("[E]ven erroneous decisions by officials may be
entitled to qualified immunity."); Rivera v. Murphy, 979 F.2d

259, 263 (1st Cir. 1992) ("'The qualified immunity standard
gives ample room for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly violate the
law.'" (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)

(per curiam) (internal quotation marks and citation
omitted)). Although we sustain the defendant's assertion of
the qualified immunity defense, we express no opinion as to
the legal "correctness" of any belief that Clemons may have
had (based on the facts as he knew them) concerning the
existence of reasonable suspicion that the plaintiffs were
engaged in illegal activity.

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into the prison in her infant granddaughter's booties. On

the record before us, an objectively reasonable official in

possession of this information and otherwise similarly

situated to Clemons could have decided there was reasonable

suspicion to believe that Sharon Wood's visitors would be

smuggling drugs into the MCC. The district court therefore

properly granted summary judgment in favor of defendant

Clemons.

Affirmed. No costs.

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