Spear v. Sowders

NATHANIEL R. JONES, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s holding that the district court inappropriately granted summary judgment. Further, I concur in the majority’s basis for reversal — that the plaintiff had a right not to be detained without probable cause or searched for administrative reasons without being given a chance to refuse the search and depart. I disagree, however, with the majority’s finding that the district court “correctly concluded that there was reasonable suspicion to conduct the search.” Maj. Op. at 631. I do not believe reasonable suspicion existed and would reverse on that ground as well.

“[A] strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). In this case, my concern is not merely an “embarrassing and humiliating” strip search, but a manual body cavity search. As the First Circuit has described the levels of nude body searches:

A “strip search,” though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A “visual body cavity search” extends to visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touching or probing of body cavities.

Blackburn v. Snow, 771 F.2d 556, 561 n. 3 (1st Cir.1985). Indeed, I cannot fathom any search that treads more on the dignity and privacy of an individual than a manual body cavity search. Courts have consistently recognized the overwhelming intrusiveness of searches of the body cavities. See Bell v. Wolfish, 441 U.S. 520, 576-77, 99 S.Ct. 1861, 1893, 60 L.Ed.2d 447 (1979) (Marshall, J., dissenting) (exclaiming that body cavity searches “represent one of the most grievous offenses against personal dignity and common decency”); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445 (9th Cir.1991) (In holding that a warrantless body cavity search was unconstitutional, the court observed that “ ‘[t]he intrusiveness of a body cavity search cannot be overstated.’ ”) (quoting Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 711 (9th Cir.1989). Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir.1991) (In holding that the presence of probable cause and a warrant validated the search, the court declared that a manual body cavity search “constitut[es] a drastic and total intrusion of the personal privacy and security values shielded by the fourth amendment ... [sjearches of this nature ... implicate and threaten the highest degree of dignity....”); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (In finding that few exercises of state authority intrude an individual’s privacy and dignity as severely as anal and genital searches, the court stated, “body cavity searches are ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission,’ representing the greatest personal indignity.”) (citations omitted). Nevertheless, the Fourth Amendment allows such searches in limited circumstances. See Bell, 441 U.S. at 558-60, 99 S.Ct. at 1884-85 (1979) (approving policy requiring body cavity searches of prison inmates after contact with visitors); Cf. United States v. Montoya de Hernandez, 473 U.S. 531, 541 n. 4, 105 S.Ct. 3304, 3310 n. 4, 87 L.Ed.2d 381 (1985) (refusing to address the appropriateness of visual and manual cavity searches of border entrants, but allowing detention for purposes of monitoring bowel movement).

The Fourth Amendment usually requires officials to have probable cause and to obtain a search warrant before performing any search. Had Ms. Spear been at home or walking on a public street that Christmas Day in 1990, she would not have been subject to a search without such probable cause; an element that the majority admits is absent. Her mistake, however, was to visit an imprisoned loved one instead. As a prison visitor, Ms. Spear enjoyed a lessened expectation of privacy and a pendant diminished protection from search. The courts have defined a number of exceptions under which government officials may perform a search without a warrant and with less than probable cause. *635In developing a “prison visitor” exception to the warrant requirement, this circuit and others have applied the “reasonable suspicion” standard developed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to official searches of citizens who are visiting inmates. The majority correctly points out that the law is clearly established that prison officials may conduct a strip and body cavity search of a prison visitor only if the officials possess “reasonable suspicion” that the visitor is bearing contraband. See Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992)(affirm-ing denial of summary judgment on qualified immunity grounds).

It must be recognized, however, that citizens do not lose all the protection of the Fourth Amendment when they visit prison. Their protection is reduced only because they have a diminished expectation of privacy and because the government has a strong interest in stopping the entry of illegal drugs and other contraband. See, e.g., id. at 786; Blackburn, 771 F.2d at 567-68. The government must maintain a reasonable suspicion to conduct the search and that reasonable suspicion requirement cannot be waived by pressured consent. See Long v. Norris, 929 F.2d 1111, 1116; Blackburn, 771 F.2d at 562-63.

Further, the reasonable suspicion requirement cannot be evaluated in a vacuum; “the totality of the circumstances — the whole picture — must be taken in to account.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Indeed, in Hunter v. Auger, 672 F.2d 668 (8th Cir.1982), the Eighth Circuit held that “in the absence of reasonable, articulable grounds to suspect a particular visitor of an attempt to smuggle drugs or other contraband by secreting them on his person, a strip search of that visitor is unreasonable under the fourth amendment.” 672 F.2d at 675. The court noted, “the reasonable suspicion standard we have adopted requires individualized suspicion, specifically directed to the person who is targeted for the strip search,” and that “[rjeasonable suspicion also includes the requirement that prison officials have reasonable cause to believe that drugs or other contraband are concealed in the particular place they decide to search.” Id. Simply put, the suspicion must be an individualized suspicion, rational and obvious when considering all circumstances, and commensurate with the scope and the type of search to be performed.

The facts in the case at bar do not manifest a reasonable suspicion. In fact, they present little more information than a case in which this court failed to find reasonable suspicion for a body cavity search. In Daugherty v. Campbell, 33 F.3d 554, 555 (1994), we held that the presence of an uncorroborated tip of a police officer, together with two letters from anonymous authors, alleging that Daugherty was smuggling drugs into the prison were not sufficient to create a reasonable suspicion.

In this case, when the warden authorized the search of Spear, he filled out a form indicating his justification. His sole written justification was that a confidential informant informed a prison guard that inmate Wade “was receiving drugs every time a young unrelated female visited.” J.A. at 61. Since prison records for the year indicated that Spear had been the only non-related visitor that year, the warden authorized her to be searched on her next visit. The uncorroborated confidential informant’s statement and the prison’s record of visitors, without more, can not create a reasonable suspicion. In fact, a meticulous scrutiny of the record reveals absolutely nothing about this visitor that could appropriately constitute such suspicion.

The majority intimates the fact that Wade had been guilty of previous drug infractions while in prison easts suspicion upon Spear. Maj. Op. at 631-32. This claim is deceptive. Wade had only one drug offense in 1990, and that was for possession of four pills of the prescription drug Darvocet, a pain killer. Upon investigation within the prison, it was determined that a prison dentist prescribed Wade the pills two days before he was found with them, so it was apparent the pills were not smuggled from outside the prison. J.A. at 52. Prison searches had found Wade with small amounts of marijuana on four occasions between February 1987 and March 1989, but the prison had no record of any visit by *636Spear before 1990. Thus, apart from the statement that the warden relied upon, there was absolutely no evidence even implicitly connecting Spear with any drugs ever found in Wade’s possession, and in fact the last time Wade was found in possession of illegal drugs occurred one year and nine months before prison officials strip searched Spear. Moreover, Spear had not visited the prison during the eight weeks preceding the informant’s October 3, 1990, statement to the guard.

An evaluation of all related circumstances as compelled by Cortez, 449 U.S. at 417, 101 S.Ct. at 695, makes it even more apparent that the strip search was unreasonable. Northpoint’s own regulations required particularized reasonable suspicion for searches of the anal cavity.1 Further, in his response to interrogatories, the warden stated that all inmates are strip searched at the conclusion of their session with visitors. J.A. at 22; see J.A. at 33 (prison regulations requiring inmates to be strip searched after visits). This fact alone vastly reduces the necessity to invade the privacy of a visitor, and it correspondingly narrows the circumstances in which it is reasonable to subject a visitor to a strip search. Additionally, the prison regulations state that during the visit the inmate sits facing a prison officer. Id. at 33. The prisoner and the visitor are allowed no more contact than holding hands, though they may kiss and embrace briefly at the beginning and end of the visit. Id. At this stage in the litigation, we do not know whether the prison adheres to its regulations, nor what other precautions against smuggling it takes. See Hunter, 672 F.2d at 676 (discussing use of solid partitions under visiting tables and screens above tables). These Circumstances, however, viewed in the light most favorable to Spear, make the transfer of illegal contraband so difficult that any type of strip search would have been inappropriate unless there was a realistic probability that she was able to evade the protections, buttressed by other evidence creating a credible reasonable suspicion that she was carrying contraband.

There simply was not enough information indicating that Spear was carrying drugs to subject her to such an invasive search. The informant’s identification of a “young unrelated female” was remarkably vague2, and it was supported by no additional evidence that Wade had possessed illegal drugs at any time subsequent to any visit by Spear. Other prison protections against drug trafficking further diminished the reasonableness of the search. -As there was not reasonable suspicion and because the facts easting suspicion upon Spear were so meager, making it apparent to the officials that they did not have reasonable suspicion to perform the search, the officials violated Spear’s Fourth Amendment right to be free from an unreasonable search. I therefore concur in remand for further proceedings, but respectfully dissent from the majority’s conclusion that reasonable suspicion was present here.

. "The anal cavity shall not be visually inspected unless there shall be reasonable suspicion that contraband is being carried in the anal cavity.” J.A. at 26 (Northpoint Reg. No. NTC 09-06-01). In Long, 929 F.2d at 1116-18, we held that qualified immunity did not bar a suit against officials who violated prison regulations stating that a strip search cannot take place without probable cause, for the regulations created a clearly established liberty interest. Plaintiffs do not predicate their suit on the Northpoint regulations, so we need not decide if Long's rule applies here.

. This description is as curious as it is vague. The informant apparently chose to use the term "unrelated," rather than identifying the purported drug courier by other obvious defining characteristics. Conspicuous are the attributes of race (Spear is white, Wade is black, all of Wade’s other female visitors, his mother, sister and cousin, are black), and of association with Wade (girlfriend).