USCA1 Opinion
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, _________ ____
-10- 10
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).
-11- 11
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)). ________
-12- 12
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 ____
-13- 13
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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