Tina Cates v. Bruce Stroud

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TINA CATES, No. 18-17026
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-01080-
GMN-PAL
BRUCE D. STROUD; BRIAN
WILLIAMS, SR.; JAMES DZURENDA;
ARTHUR EMLING, JR.; MYRA OPINION
LAURIAN,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding

Argued and Submitted May 29, 2020
San Francisco, California

Filed September 25, 2020

Before: William A. Fletcher, Jay S. Bybee, and
Paul J. Watford, Circuit Judges.

Opinion by Judge W. Fletcher
2 CATES V. STROUD

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment
for defendants in an action brought pursuant to 42 U.S.C.
§ 1983 and state law alleging that plaintiff’s constitutional
rights were violated when she was, among other things,
subjected to a strip search upon arriving at a prison to visit
her boyfriend.

The panel held that plaintiff’s unconsented strip search
was unreasonable under the Fourth Amendment. The panel
held that even if there was a reasonable suspicion that
plaintiff was seeking to bring drugs into the prison (a question
the panel did not reach), the criminal investigator who
performed the search violated plaintiff’s rights under the
Fourth Amendment by subjecting her to the search without
first giving plaintiff the option of leaving the prison.

The panel held that prior to the panel’s decision in this
case, there had been no controlling precedent in this circuit,
or a sufficiently robust consensus of persuasive authority in
other circuits, holding that prior to a strip search a prison
visitor—even a visitor as to whom there is reasonable
suspicion—must be given an opportunity to leave the prison
rather than be subjected to the strip search. Accordingly,
because at the time of the violation, plaintiff did not have a
clearly established Fourth Amendment right to leave without
being subjected to the search, defendant was entitled to

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CATES V. STROUD 3

qualified immunity. The panel held that plaintiff’s other
causes of action, which included additional Fourth
Amendment and due process claims, failed.

COUNSEL

Travis Barrick (argued), Gallian Welker Beckstrom, Las
Vegas, Nevada, for Plaintiff-Appellant.

D. Randall Gilmer (argued), Chief Deputy Attorney General;
Frank A. Toddre II, Senior Deputy Attorney General; Aaron
D. Ford, Attorney General; Office of the Attorney General,
Las Vegas, Nevada; for Defendants-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

On February 19, 2017, Tina Cates went to visit her
boyfriend, Daniel Gonzales, who was incarcerated at High
Desert State Prison in Nevada. Prison officials believed
Cates intended to smuggle drugs to Gonzales. A female
officer took Cates to a bathroom and instructed her to disrobe
and remove her tampon. Cates complied, believing that she
had no choice, and the officer performed a visual body cavity
strip search. Another officer searched her car. He asked
permission to search the contents of Cates’s phone, and Cates
refused to grant permission. No contraband was found.
Cates was not allowed to visit Gonzales, and her visiting
privileges at the prison were terminated. Cates brought suit
against several prison officials under 42 U.S.C. §1983. The
district court granted summary judgment to all defendants.
4 CATES V. STROUD

We hold that the defendant who performed the strip
search violated Cates’s rights under the Fourth Amendment,
but that the defendant is protected by qualified immunity.

I. Background

Because this case comes before the panel on an appeal of
a grant of summary judgment for defendants, we draw all
reasonable factual inferences in favor of Cates. Tolan v.
Cotton, 572 U.S. 650, 656–57 (2014). We recount the facts
viewed through that lens.

At the time of the episode in question, Cates had been
dating Gonzales for almost three years. She had known him
for almost twenty years. Gonzales had been incarcerated at
High Desert State Prison (“HDSP”) since sometime in 2015
or early 2016. Cates submitted an application to visit
Gonzales, which was approved in approximately August or
September of 2016. After that approval, Cates visited
Gonzales weekly.

On February 19, 2017, Cates arrived at HDSP around
11:30 a.m. for her regular visit. Signs on the premises of the
prison alerted visitors that all persons and vehicles on the
property were subject to search. As she had done at the
beginning of every previous visit, Cates signed a consent
form reading:

I, the undersigned, being free from coercion,
duress, threats or force of any kind, do hereby
freely and voluntarily consent to the search of
my person, vehicle and other property which
I have brought onto prison grounds. I agree
that the search maybe [sic] conducted by duly
 CATES V. STROUD 5

authorized Correctional Officers of the
Department of Corrections or by other law
enforcement officers specifically authorized
by the Warden. I understand that if I do not
consent to the search of my person, vehicle or
other property, I will be denied visitation on
this date and may also be denied future visits
pursuant to Administrative Regulation 719.

Unbeknownst to her, an investigation of Cates had been
initiated by a non-party correctional officer of HDSP.
Defendant Arthur Emling, Jr., a criminal investigator with the
Nevada Office of the Inspector General, stated in his
deposition that the investigation was prompted by a tip
received from “two confidential credible sources” that Cates
might try to bring drugs into the prison. Other than Emling’s
statement, the record contains no information about the origin
or reliability of the tip.

On the day of Cates’s visit, Emling had applied for and
received a warrant to search Cates’s “person,” to search “any
vehicles used and registered by Cates to transport herself to
High Desert State Prison,” and to seize “[a]ny and all [i]llegal
[c]ontrolled [s]ubstances/[n]arcotics.” The warrant did not
specifically authorize a visual body cavity strip search of
Cates’s “person.” The warrant was never executed.
Defendants do not argue to us that, even if executed, the
search warrant authorized a strip search.

After Cates signed the consent form, Emling and Myra
Laurian (“Laurian”), a female criminal investigator for the
Office of the Inspector General, approached Cates, confirmed
her identity, and told her, without explanation, to follow
them. Cates believed that Emling and Laurian were “cops”
6 CATES V. STROUD

or prison officials, and that she was in their custody. Cates
did not feel free to leave. She stated in her deposition that
neither Emling nor Laurian informed her that she was free to
leave. Emling and Laurian led Cates to the prison
administration building.

Laurian took Cates into a bathroom. Laurian told her to
remove her clothing, including her bra and underwear, and to
remove her tampon. According to Cates, Laurian “ordered [],
and didn’t ask” her to bend over and spread her cheeks.
Cates complied. She stated in her deposition, “I didn’t know
if I could [object]. I don’t know what the laws are. I was
complying to an authority.” Laurian found no drugs or other
contraband on Cates’s person. Despite her prior assurances
that she would do so, Laurian did not supply a replacement
tampon. Rather, she provided, in Cates’s words, “toilet paper
to shove down there.”

Cates stated in her deposition that she did not consent to
the strip search. Rather, she stated that, in signing the consent
form she had signed on every prior visit to the prison, she
understood that she was consenting only to a “normal
search.” She understood that she had consented to “[a] search
that is a pat-down that they normally do when you go through
the prison.”

Cates stated that after the strip search Emling told Laurian, “I
need you to watch [Cates] while I go search her car.” Emling
stated in his deposition that “Cates was not detained,” and
“could leave at any time.” However, defendants
acknowledge in their brief to our court that “Cates was
detained in HDSP administration during the search” of her
car. While Laurian detained Cates, Emling took Cates’s car
 CATES V. STROUD 7

keys from a locker and searched her car. Emling found no
drugs or other contraband in Cates’s car.

Emling took Cates’s phone out of her car and asked for
permission to search its contents. Emling then told Cates for
the first time that he had a search warrant. He told her that
the warrant did not authorize a search of her phone. Cates
denied permission to search the contents of her phone. She
stated in her deposition that she denied permission because of
the personal nature of some of the photographs in her phone.

After Cates refused the search of her phone, prison
officials terminated her visit to the prison. Cates left HDSP
and drove home. On the way home, she bled through her
clothes. Cates did not stop on the way home to buy another
tampon because, she stated, “I just wanted to get home and
clean myself up and - like, I felt violated. And the fastest
thing I wanted to is just get home and - it’s an embarrassing
thing for a female. You just want to go clean yourself up.
It’s gross.”

On her way home, Cates spoke to Gonzales on the phone.
Because Gonzales was incarcerated, the call was recorded.
Cates told Gonzales what happened and said that she “fe[lt]
violated.” Cates told Gonzales that “I told her that she could
because, I mean, I’m not bringing drugs in, you know what I
mean.”

Cates stated in her deposition that the search at HDSP
“traumatized me. . . . I’ve never experienced anything like
that in my life. . . . I’m still in shock over it.” She stated that
she rushed home to clean “[t]he blood, and the violation that
I felt from the - having to take my clothes off and spread my
cheeks open and all that for the lady.” Cates stated, “I have
8 CATES V. STROUD

a clean record. I take pride in that. I’m a law-abiding
citizen.” Cates took off work and did not leave her house for
several days because, she stated: “I was emotionally messed
up in the head from the situation that I had gone through at
the prison.” Cates also increased the dosage of anxiety
medication that she had previously been prescribed.

II. NDOC Guidelines

Nevada Department of Corrections (“NDOC”) guidelines,
applicable to both inmates and visitors, mandate that
“[s]earches [ ] be conducted in a manner that causes the least
disruption and affords respect and privacy for the property or
person searched. Staff will avoid unnecessary force or
embarrassment.” “Whenever practical and where there is no
undue risk to the officers or employees conducting the search,
the person or inmate to be searched will remain within view
of the property being searched.”

NDOC provides guidance specifically regarding searches
of visitors. “Every visitor . . . will be subject to pat down,
frisk and personal property searches and may be subject to
strip searches. Prior to the search, the visitor will be
informed of the type of search to be performed and of the
visitor’s option to refuse to be searched.” “If the planned
search is to be a strip search, the visitor must give consent in
writing to be strip searched, unless a search warrant has been
obtained and a peace officer is present.” “Strip searches may
only be conducted [if] . . . [t]he person is notified of the right
to refuse to be searched and gives written approval,” “[t]he
search is conducted by two staff members trained in
conducting searches and of the same gender as the person
being searched,” and “[t]he search is conducted in a private
area as near the perimeter entrance as possible.”
 CATES V. STROUD 9

III. Procedural History

Cates alleged nine causes of action against five different
defendants for violation of the First, Fourth, Eighth, and
Fourteenth Amendments of the United States Constitution.
Cates sought damages as well as injunctive and declaratory
relief.

Cates also alleged causes of action under the Nevada state
constitution. However, she mentions the Nevada constitution
only once in her brief to us, and she cites no Nevada case.
She has therefore waived any causes of action under the state
constitution. See Brown v. Rawson-Neal Psychiatric Hosp.,
840 F.3d 1146, 1148 (9th Cir. 2016).

The district court granted summary judgment to all
defendants on all causes of action.

IV. Standard of Review

We review a district court’s grant of summary judgment
de novo. See Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th
Cir. 2017). “Summary judgment is appropriate when,
viewing the evidence in the light most favorable to the
nonmoving party, there is no genuine dispute as to any
material fact.” Id. (internal quotation marks and citation
omitted). In other words, a plaintiff survives a defendant’s
motion if she produces “evidence such that a reasonable juror
drawing all inferences in [her] favor . . . could return a verdict
in [her] favor.” Id. at 441 (internal quotation marks and
citation omitted).
10 CATES V. STROUD

V. Discussion

A. Fourth Amendment

Cates’s only viable cause of action is her claim that the
unconsented strip search violated her rights under the Fourth
Amendment. For the reasons that follow, we hold that the
strip search violated the Fourth Amendment. However, we
also hold that Laurian, who conducted the strip search, is
protected from a damages suit by qualified immunity.
Because there is little to no likelihood that Cates might again
be subjected to a strip search under comparable
circumstances, prospective declaratory and injunctive relief
are unavailable.

Qualified immunity protects government officials acting
in good faith and under the color of state law from suit under
§ 1983. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Qualified immunity bars suits against government officials
when either (1) no deprivation of constitutional rights was
alleged or (2) the law dictating that specific constitutional
right was not yet clearly established. Id. at 236. Courts may
begin with either prong of the analysis. Id.

If a constitutional violation is established, satisfying the
first prong, the second prong of a qualified immunity analysis
asks whether the law prohibiting the action was “clearly
established” at the time of the incident in question. Id. The
function of the inquiry under the second prong is to ensure
that officials are subject to suit only for actions that they
knew or should have known violated the law. Hope v. Pelzer,
536 U.S. 730, 741 (2002). Law is “clearly established” for
the purposes of qualified immunity analysis if “every
reasonable official would have understood that what he is
 CATES V. STROUD 11

doing violates that right.” Taylor v. Barkes, 135 S. Ct. 2042,
2044 (2015) (internal quotations and citations omitted). An
official can be on notice that his conduct constitutes a
violation of clearly established law even without a prior case
that had “fundamentally similar” or “materially similar” facts.
Hope, 536 U.S. at 741. In the analysis that follows, we
address both prongs.

1. Fourth Amendment Violation

The Fourth Amendment prohibits unreasonable searches.
U.S. Const. Amend. IV; Bell v. Wolfish, 441 U.S. 520, 558
(1979). To determine whether a particular search is
unreasonable, the intrusion on the individual’s privacy
interests must be balanced against “its promotion of
legitimate governmental interests.” Delaware v. Prouse, 440
U.S. 648, 654 (1979). A prison “is a unique place fraught
with serious security dangers. Smuggling of money, drugs,
weapons, and other contraband is all too common an
occurrence.” Bell, 441 U.S. at 559. In determining whether
a prison search is reasonable under the Fourth Amendment,
the prison’s “significant and legitimate security interests”
must be balanced against the privacy interests of those who
enter, or seek to enter, the prison. Id. at 560.

It is well-established that prisoners do not shed all
constitutional rights at the prison gate, though these rights
may be limited or restricted. See id. at 545–546; Sandin v.
Conner, 515 U.S. 472, 485 (1995); see also Gerber v.
Hickman, 291 F.3d 617, 620 (9th Cir. 2002) (noting that
while “[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution,” “it is also
clear that imprisonment carries with it the . . . loss of many
significant rights” (citations and quotations omitted)).
12 CATES V. STROUD

“Prisoners retain only those rights ‘not inconsistent with their
status as . . . prisoners or with the legitimate penological
objectives of the corrections system.’” Gerber, 291 F.3d at
620 (citing Hudson v. Palmer, 468 U.S. 517, 523 (1984)
(alterations omitted)).

Like prisoners, prison visitors retain only those rights that
are consistent with the prison’s significant and legitimate
security interests. But visitors’ privacy interests, and their
threats to prison security, are distinct from those of inmates
and detainees. See, e.g., Boren v. Deland, 958 F.2d 987, 988
(10th Cir. 1992); Daugherty v. Campbell, 935 F.2d 780, 786
(6th Cir. 1991); see also Blackburn v. Snow, 771 F.2d 556,
563 (1st Cir. 1985) (recognizing that “free citizens entering
a prison, as visitors, retain a legitimate expectation of
privacy, albeit one diminished by the exigencies of prison
security”). Any constraints on visitors’ rights must be
“justified by the considerations underlying our penal system”
and their curtailment necessary to the institution’s needs.
Hudson, 468 U.S. at 524 (internal citation omitted).

As we have recognized, “[p]rison officials . . . have a
strong interest in preventing visitors from smuggling drugs
into the prison.” Mendoza v. Blodgett, 960 F.2d 1425, 1433
(9th Cir. 1992). Concerns about smuggling drugs and other
contraband, such as weapons, into the facility may justify a
variety of security screening measures. The nature of
permissible screening measures will vary depending on the
nature of the threat. “Courts must 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.” Bell, 441 U.S. at 559.
 CATES V. STROUD 13

While “some quantum of individualized suspicion is
usually a prerequisite to a constitutional search or seizure,”
United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976),
the unique context of the prison facility does not always
require individualized suspicion. Some searches of visitors
to “sensitive facilities,” like courthouses or prisons, require
no individualized suspicion provided that the searches are
both limited and necessary. See McMorris v. Alioto, 567 F.2d
897, 899 (9th Cir. 1978). Pat-down searches and metal
detector screenings of visitors may be conducted as a
prerequisite to visitation without any individualized
suspicion, given the weighty institutional safety concerns.
Such searches are “relatively inoffensive” and “less intrusive
than alternative methods,” and they may be avoided by the
simple expedient of not visiting the prison. Id. at 900–01.

Visual body cavity searches, such as the search to which
Cates was subjected, are at the other end of the spectrum.
“Strip searches involving the visual exploration of body
cavities [are] dehumanizing and humiliating.” Kennedy v.
Los Angeles Police Dep't, 901 F.2d 702, 711 (9th Cir. 1990),
abrogated on other grounds by Hunter v. Bryant, 502 U.S.
224 (1991) (per curiam); see also Bell, 441 U.S. at 576–77,
(Marshall, J., dissenting) (stating that “body-cavity searches
. . . represent one of the most grievous offenses against
personal dignity and common decency”). “The intrusiveness
of a body cavity search cannot be overstated.” Fuller v. M.G.
Jewelry, 950 F.2d 1437, 1445 (9th Cir. 1991) (alteration and
citation omitted). The Fourth Amendment permits these
searches, even of inmates, only in limited circumstances. See
Bell, 441 U.S. 520, 558–60 (upholding policy of visual body
cavity strip searches of inmates after contact visits); Florence
v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 566
U.S. 318 (2012) (upholding similar searches of detainees
14 CATES V. STROUD

before they are introduced into the general population of a
facility); Bull v. City and County of San Francisco, 595 F.3d
964 (9th Cir. 2010) (en banc) (upholding policy of strip
searches of arrestees before introduction into the general jail
population); see also Edgerly v. City and County of San
Francisco, 599 F.3d 946, 957 (9th Cir. 2010) (strip search of
an arrestee never placed in the general jail population requires
reasonable suspicion).

Prisoners may be subjected to visual body cavity strip
searches based on “reasonable suspicion” in order “to protect
prisons and jails from smuggled weapons, drugs or other
contraband which pose a threat to the safety and security of
penal institutions.” Fuller, 950 F.2d at 1447; see also
Kennedy, 901 F.2d at 715. However, such searches “are valid
only when justified by institutional security concerns.”
Fuller, 950 F.2d at 1447. In circumstances where they
threaten prison security, prison visitors may be strip searched
when based on reasonable and individualized suspicion. See
Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000)
(recognizing “a long and unbroken series of decisions by our
sister circuits” finding “strip searches of prison visitors . . .
unconstitutional in the absence of reasonable suspicion that
the visitor was carrying contraband”); see, e.g., Blackburn,
771 F.2d at 566–67 (rejecting “appellants’ attempt to impute
or casually transfer to free citizens visiting a prison the same
circumscription of rights suffered by inmates”); Calloway v.
Lokey, 948 F.3d 194, 202 (4th Cir. 2020) (stating that “the
standard under the Fourth Amendment for conducting a strip
search of a prison visitor—an exceedingly personal invasion
of privacy—is whether the prison officials have a reasonable
suspicion, based on particularized and individualized
information, that such a search will uncover contraband on
the visitor’s person on that occasion”).
 CATES V. STROUD 15

However, even where there is reasonable suspicion that a
prison visitor is carrying contraband, a strip search is
permissible only if it can be justified by a legitimate security
concern. See Fuller, 950 F.2d at 1447. That justification
does not exist when the visitor is not in a position to introduce
contraband into the prison. For example, there is no
legitimate security justification when a visitor is still in an
administrative building of the prison with no possibility of
contact with a prisoner. Only when a visitor could introduce
contraband into the prison is the risk comparable to that posed
by a prisoner who returns to the general prison environment
after contact with a visitor, or a detainee who is placed with
the general prison population after booking. See Bell, 441
U.S. 520; Florence, 566 U.S. 318.

A critical distinction between a visitor, on the one hand,
and a prisoner or detainee, on the other, is that a visitor can
leave the administrative area of a prison without ever coming
into contact with a prisoner. The Sixth Circuit relied on this
distinction in Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995)
(en banc), to hold that a prison visitor could be compelled to
submit to a digital body cavity strip search based solely on
reasonable suspicion only if the visitor was given the
opportunity to terminate her visit and depart instead.
Kentucky prison officials believed Spear was bringing drugs
to an inmate during her visits. They refused to allow her into
the prison proper, where she would have had contact with
prisoners, and they refused to allow her to leave the
administrative area of the prison without submitting to a body
cavity strip search. Id. at 628–29. The search “embarrassed,
humiliated, and demeaned her.” Id. at 629. The court held
that “the residual privacy interests of visitors in being free
from such an invasive search requires that prison authorities
have at least a reasonable suspicion that the visitor is bearing
16 CATES V. STROUD

contraband before conducting such a search.” Id. at 630. The
court held further that even if there was reasonable suspicion
that Spear was carrying drugs, she had a “right not to be
searched for administrative reasons without having a chance
to refuse the search and depart.” Id. at 632. The court noted
that “the same logic that dictates that such a search may be
conducted only when there is reasonable suspicion also
demands that the person to be subjected to such an invasive
search be given the opportunity to depart.” Id.

The Seventh Circuit has endorsed the reasoning of Spear:
“[I]f a visitor showed up at the gates of the prison and was
told that anyone who visits an inmate has to submit to a strip
search, and replied that in that event she would not visit him,
the guards would not seize her and subject her to the strip
search anyway—or if they did, they would be violating the
Fourth Amendment. . . . The visitor thus always had the legal
option of avoiding the strip search by forgoing the visit.”
Burgess, 201 F.3d at 945. See also Stephen v. MacKinnon,
No. CIV.A. 94-3651-B, 1997 WL 426972, at *6 (Mass. 1997)
(finding “[t]he portion of the search which occurred after Ms.
Stephen expressed her wish to leave . . . unreasonable and in
violation of [her] constitutional right to be free of an
unreasonable search”); Shields v. State, 16 So. 85, 86 (Ala.
1894) (describing “[t]he examination or search must be
voluntary on the part of [visitors]. If they do not consent,
admission to the jail or access to the prisoners may be
refused”).

Using a similar analysis, the Eighth Circuit found a
Fourth Amendment violation when a visitor—who had
already finished her visit to the jail and was therefore “no
longer in a position to smuggle contraband” and “no longer
posed a threat to prison security”—was subjected to a visual
 CATES V. STROUD 17

body cavity strip search. Marriott By and Through Marriott
v. Smith, 931 F.2d 517, 518, 520 (8th Cir. 1991). In Hunter
v. Auger, 672 F.2d 668, 675 (8th Cir. 1982), the Eighth
Circuit had previously held that visitors may be subjected to
strip searches if there are “reasonable grounds . . . to believe
that a particular visitor will attempt to smuggle contraband”
into the prison. The court wrote in Marriott that “[t]he mere
fact that this case and Hunter involved people who had gone
to visit prisoners is a superficial similarity. That similarity
does not justify an officer relying on Hunter when the
purpose for the Hunter rule does not exist.” 931 F.2d at 521.

We agree with the Sixth, Seventh and Eighth Circuits.
Our agreement with our sister circuits follows naturally from
our precedent on prison searches and on screening measures
in sensitive facilities more generally. In upholding a blanket
policy requiring strip searches of admittees to the county jail
in Bull, we specifically noted that we were not “disturb[ing]
our prior opinions considering searches of arrestees who were
not classified for housing in the general jail or prison
population.” 595 F.3d at 981. Our rationale in Bull, like the
Supreme Court’s rationale in Bell, 441 U.S. 520, was based
on the jail’s security interests within the jail. See Bull, 595
F.3d at 981 n.17 (“The strip search policy at issue in this
case, and our holding today, applies only to detainees
classified to enter the general corrections facility population.”
(emphasis added)); see also Bell, 441 U.S. at 558 (upholding
searches of “[i]nmates at all Bureau of Prison facilities . . .
after every contact visit with a person from outside the
institution”). We specifically noted in Bull that “searches of
arrestees at the place of arrest, searches at the stationhouse
prior to booking, and searches pursuant to an evidentiary
investigation must be analyzed under different principles than
those at issue today.” Id. at 981.
18 CATES V. STROUD

Because the ability of prison officials to conduct strip
searches of visitors based on reasonable suspicion is premised
on the need to prevent introduction of contraband into the
prison, a search of a visitor who no longer intends to enter the
portion of the prison where contact with a prisoner is
possible, or who was leaving the prison, must rely on another
justification. Ordinarily, a visitor cannot introduce
contraband into the prison simply by appearing in the
administrative area of the prison. If prison officials have
reasonable suspicion that such a visitor is carrying
contraband, the prison’s security needs would justify a strip
search only if the visitor insists on access to a part of the
prison where transfer of contraband to a prisoner would be
possible. If the visitor would prefer to leave the prison
without such access, the prison’s security needs can be
satisfied by simply letting the visitor depart.

NDOC’s own guidelines support this analysis. As we
noted above, they provide:

Prior to the search, the visitor will be
informed of the type of search to be
performed and of the visitor’s option to refuse
to be searched. If the planned search is to be
a strip search, the visitor must give consent in
writing to be strip searched, unless a search
warrant has been obtained and a peace officer
is present. In the absence of a search warrant,
any person not giving permission to search
upon request will be required to leave the
institution/facility grounds.

The guidelines continue: “Strip searches may only be
conducted [when] [t]he person is notified of the right to
 CATES V. STROUD 19

refuse to be searched and gives written approval to be
searched per the ‘Consent to Search’ form.” The NDOC’s
guidelines are of course based on the security needs of the
prison. Notably, the guidelines in no way suggest that it is
necessary for institutional security to conduct a search of a
visitor who prefers to leave the prison rather than subject
herself to a strip search. Prison regulations in many states are
similar. See, e.g., Ill. Admin. Code § 2501.220(a)(3)
(permitting strip searches of visitors only if there is
“reasonable suspicion that the visitor may be in possession of
contraband or be attempting to transport contraband into the
facility” and “[t]he visitor [is] informed that he may refuse to
submit to the search . . . and may be denied the visit unless he
specifically consents in writing to a strip search”); N.Y.
Admin. Code § 200.2(f) (describing a “visitor must be
informed that he/she has the option to submit . . . or to
refuse”); Miss. Admin. Code Pt. 2, R. 2.1.5(4) (“When any
visitor is believed, upon reasonable suspicion, to be carrying
contraband, they will be asked to consent to a strip search
and/or body cavity search.”).

In other circumstances or settings, a refusal to allow
someone to depart rather than submit to a search may be
justified by legitimate security needs. For example, we held
in U.S. v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc),
that a would-be airplane passenger could be subjected to a
pat-down, empty-your-pockets search once he had entered the
security area, even though he expressed a desire to leave
rather than be subjected to the search. We held that a rule
allowing the would-be passenger to depart in such a
circumstance would “make[] little sense in a post-9/11
world.” Id. Rather, such a rule
20 CATES V. STROUD

would afford terrorists multiple opportunities
to attempt to penetrate airport security by
‘electing not to fly’ on the cusp of detection
until a vulnerable portal is found. This rule
would also allow terrorists a low-cost method
of detecting systematic vulnerabilities in
airport security, knowledge that could be
extremely valuable in planning future attacks.

Id. at 960–61.

Our decision in Aukai is entirely consistent with a holding
that a prison visitor who does not insist on access to the
prison proper must be allowed to leave rather than be
subjected to a strip search. First, prisons are not faced with
the same sort of security threats as airports. Our rationale in
Aukai made perfect sense in the context of airport screening,
where a terrorist is intent on bringing down an airplane—any
large passenger airplane—and needs to find a soft spot at only
one airport—any significant airport—to do enormous
damage. By contrast, a prison visitor intent on bringing
contraband into a prison is typically interested in bringing
contraband to a particular person or group of people in that
prison. Second, the search in Aukai was not intrusive. The
would-be passenger was only wanded, patted down, and
asked to empty his pockets. An entirely different case would
have been presented in Aukai if an unconsented strip search
had been at issue.

We are aware that in U.S. v. Prevo, 435 F.3d 1343 (11th
Cir. 2006), the Eleventh Circuit relied on airport search cases
to reject an argument that a person should have been allowed
to leave a prison parking lot rather than have her car searched.
The court wrote that an option to leave
 CATES V. STROUD 21

would constitute a one-way street for the
benefit of a party planning airport mischief,
since there is no guarantee that if he were
allowed to leave he might not return and be
more successful. As we observed, established
search procedures are more valuable for what
they discourage than what they discover. Any
policy that reduces the likelihood of a
successful search will decrease the risk to the
wrongdoer. A policy allowing the wrongdoer
to back out on the brink of discovery reduces
the risk to zero, leaving her free reign to probe
the security measures until an opening is
found.

Id. at 1348–49 (citations and alterations omitted). The
Eleventh Circuit’s concerns are not compelling when applied
to an unconsented strip search of a visitor who would prefer
to leave rather than be searched. A strip search is humiliating
and intrusive. Moreover, in Prevo some prisoners had access
to the parking lots at the prison. See Prevo, 435 F.3d at 1347
(noting that the pistol on the front seat of a visitor’s car would
be “accessible to prisoners passing by who were inclined to
wrongdoing,” and concluding that “[a]t least where inmates
have access to cars parked in prison facility parking lots, a
search of the vehicle is reasonable”); see also Neumeyer v.
Beard, 421 F.3d 210, 211 (3rd Cir. 2005) (“Notably, some
inmates have outside work details and such inmates may have
access to visitors’ vehicles parked at the prison.”) (quotation
omitted); McDonell v. Hunter, 809 F.2d 1302, 1309 (8th Cir.
1987) (finding “it is not unreasonable to search [employee]
vehicles that are parked within the institution’s confines
where they are accessible to inmates”).
22 CATES V. STROUD

The court in Spear drew a similar distinction between
strip searches and vehicle searches. See Spear, 71 F.3d
at 633. While holding that Spear should have been given an
opportunity to leave before being subjected to a body cavity
strip search based on reasonable suspicion, the court refused
to hold that the search of her car located on prison grounds
was unreasonable. It noted that “while unpleasant, the nature
of an automobile search is far less intrusive than a strip and
body cavity search, and the interest in preventing the
introduction of contraband remains as great.” Id.; see also
Romo v. Champion, 46 F.3d 1013, 1019 (10th Cir. 1995)
(stating that a “strip search is a far cry from the routine, rather
nonintrusive search initially conducted by defendants at the
roadblock . . . the strip search of an individual by government
officials, regardless how professionally and courteously
conducted, is an embarrassing and humiliating experience”)
(quotation omitted). It further distinguished the two searches
based on the fact that contraband hidden on or inside a person
would only be transferred to a prisoner through contact with
the prisoner while “an object secreted in a car, to which
prisoners may have access, is a potential threat at all times
after the car enters the grounds.” Spear, 71 F.3d at 633.

Even if there was reasonable suspicion that Cates was
seeking to bring drugs into the prison (a question we do not
reach), Laurian violated her rights under the Fourth
Amendment by subjecting her to a strip search without giving
her the option of leaving the prison rather than being
subjected to the search.

2. Qualified Immunity

We have concluded, in agreement with three of our sister
circuits, that Laurian violated Cates’s rights under the Fourth
 CATES V. STROUD 23

Amendment by subjecting her to a strip search without giving
her an opportunity to leave rather than be subjected to the
search. We hold, however, that prior to our decision in this
case the contours of the right in this circuit were not
“sufficiently clear [such] that a reasonable official would
understand that what he is doing violates that right,” and
accordingly extend qualified immunity. Jessop v. City of
Fresno, 936 F.3d 937, 940–41 (9th Cir. 2019) (en banc)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The Supreme Court and our court have addressed strip
searches of detainees. But when Cates was subject to the
strip search at issue in this case, there was no case in this
circuit where we had held that a prison visitor has a right to
leave the prison rather than undergo a strip search conducted
on the basis of reasonable suspicion. While we “do not
require a case directly on point, . . . existing precedent must
have placed the . . . question beyond debate.” Al-Kidd, 563
U.S. at 741. Cases allowing strip searches of detainees
support a holding that Cates’s rights under the Fourth
Amendment were violated primarily based on their
differences from, rather than their similarities to, Cates’s
case. Additionally, while “in a sufficiently ‘obvious’ case of
constitutional misconduct, we do not require a precise factual
analogue in our judicial precedents,” we have noted that this
“exception . . . is especially problematic in the Fourth-
Amendment context” where officers are confronted with
“endless permutations of outcomes and responses.” Sharp v.
County of Orange, 871 F.3d 901, 911–12 (9th Cir. 2017).

Existing case law has already clearly established that a
strip search of a prison visitor conducted without reasonable
suspicion is unconstitutional. We do not reach the question
whether there actually was reasonable suspicion that Cates
24 CATES V. STROUD

was carrying drugs on her person. But, for purposes of a
qualified immunity analysis, it was not unreasonable for
Laurian to have believed that there was reasonable suspicion,
given that a search warrant (though unexecuted) had been
issued for a search of Cates’s “person” for drugs. However,
prior to our decision in this case, there has been no
controlling precedent in this circuit, or a sufficiently robust
consensus of persuasive authority in other circuits, holding
that prior to a strip search a prison visitor—even a visitor as
to whom there is reasonable suspicion—must be given an
opportunity to leave the prison rather than be subjected to the
strip search.

B. Other Causes of Action

We hold that Cates’s other alleged causes of action all
fail. Cates alleges two additional Fourth Amendment causes
of action: that Emling and Laurian violated the Fourth
Amendment when they detained her while searching her car,
and again when they took her phone. Neither allegation
states a constitutional violation. Some form of temporary
detention while they searched Cates’s car was permissible
because officers’ “authority to detain incident to a search is
categorical.” Muehler v. Mena, 544 U.S. 93, 98 (2005).
Cates’s detention during the search of her car lasted for only
a few minutes and did not involve serious physical restriction.
The brief moment when Defendant Emling was holding
Cates’s phone and asking her for the passcode (which Cates
refused to provide) did not “meaningful[ly] interfere[] with
[her] possessory interests in” her phone. United States v.
Brown, 884 F.2d 1309, 1311 (9th Cir. 1989).

Cates alleges three due process causes of action: she
contends that her due process rights were violated when
 CATES V. STROUD 25

(1) Emling and Laurian failed to give her a copy of the search
warrant; (2) a prison official denied her access to the prison
on February 17 without reasoning or appeal; and (3) other
prison officials indefinitely suspended her permission to visit
the prison. Cates’s first due process cause of action fails
because the warrant was never executed, and she cites no law
requiring the production of an unexecuted warrant. See
United States v. Silva, 247 F.3d 1051, 1058 n.4 (9th Cir.
2001). Cates also cites no caselaw supporting her second and
third due process causes of action.

Cates alleges other causes of action, including that
(1) “she was retaliated against under the First Amendment”
after “she reasonably refused to provide [Emling] the
password to her cell phone, something she had a protected
[First] Amendment right to do”; (2) her Eighth Amendment
right to be free from cruel and unusual punishment was
violated; and (3) prison officials violated her right to equal
protection by terminating her visitation while not doing the
same to other, similarly situated individuals. None of these
other causes of actions has merit.

Conclusion

The unconsented strip search to which Cates was
subjected, without giving her the option of leaving the prison
rather than being subjected to the search, was unreasonable
under the Fourth Amendment. However, because at the time
of the violation Cates did not have a clearly established
Fourth Amendment right to leave without being subjected to
the search, Laurian is entitled to qualified immunity. Cates’s
26 CATES V. STROUD

other causes of action fail. We affirm the district court’s
award of summary judgment to defendants.

AFFIRMED.