Kenneth Daugherty, as Personal Representative of Lenora Daugherty, Deceased v. Donal Campbell

SUHRHEINRICH, Circuit Judge,

dissenting.

The majority holds that there was insufficient evidence to permit the jury to determine whether Warden Campbell’s decision to order a strip search of the plaintiff was supported by reasonable suspicion. Because I believe that the evidence was sufficient to raise a genuine issue regarding this material fact, I would affirm the judgment entered in *558favor of the defendants and, therefore, I must dissent.1

The majority’s decision is based on its assertion that “[a]n anonymous tip requires some measure of corroboration to warrant official action.” Maj. Op. at 557. As authority for this statement, the majority cites Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Nothing in Adams, however, purports to establish a requirement of “corroboration” and, in my view, the holding of Adams dictates that we affirm the district court’s decision that the evidence in this case could support a finding that Warden Campbell acted with sufficient justification.

In Adams, an informant approached an officer and informed him that a suspect seated in a nearby parked car was carrying narcotics and a gun. The officer walked over to the car, had the suspect roll down the window and reached in to retrieve the gun. Id. at 144-45, 92 S.Ct. at 1922-23. The officer did not “corroborate” anything before conducting the search, he simply acted on what he had been told. The Court, in upholding the search, concluded:

[W]e believe [the officer] acted justifiably in responding to his informant’s tip. The informant was known to him personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, ... the informant might have been subject to immediate arrest for making a false complaint had [the officer’s] investigation proved the tip incorrect. Thus, while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant ... the information carried enough indicia of reliability to justify the officer’s forcible stop of Williams.

Id. at 146^47, 92 S.Ct. at 1923 (emphasis added and citations omitted).

Nothing in the Adams opinion suggests that the tip included anything other than the informant’s conclusion that the suspect was armed and certainly the Court imposed no requirement that the officer inquire as to the basis for the informant’s conclusion. In a later case, the Court revisited Adams, stating:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, ... demonstrates as much. We there assumed that the unverified tip from the known informant might not have been rehable enough to establish probable cause, but nevertheless found it sufficiently rehable to justify a Terry stop.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (emphasis added).

In construing Adams, this court has recognized that “the Adams’ tipster’s conclusory statements that a man seated in a car possessed a gun carried no ‘indicia of reliability’ ” and that the reasonableness of the officer’s suspicion in that case turned entirely on “the source of the information!,] the tipster who was known and at the scene.” United States v. Andrews, 600 F.2d 563, 568 (6th Cir.) (Keith, J.), cert. denied, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979). Accordingly, I beheve that Adams stands for the proposition that “conclusory statements” from an informant may constitute reasonable suspicion if the informant is known to the officer, is on hand, and sufficient “indicia of reliability” surrounding the informant’s tip *559are created by the threat of some form of retribution should the officer determine that the accusation was completely baseless.

In the present case, Warden Campbell authorized the strip search of plaintiff because Officer Starbuck told him that plaintiff was concealing drugs on her person and smuggling them into the prison.2 Officer Star-buck was known to Warden Campbell and had provided reliable information in the past. Unlike the “civilian” informant in Adams, who just happened to be on hand at two in the morning, Officer Starbuck was duty-bound to assist Warden Campbell in interdicting the flow of drugs into the prison annex and otherwise preserving order in the prison. Finally, Officer Starbuck was presumably subject to discipline or dismissal if it were determined that he was making groundless accusations, a threat far more realistic, and thus carrying greater “indicia of reliability,” than that cited by the Court in Adams3

Moreover, Officer Starbuck’s conclusions were not the only data available to Warden Campbell when he authorized the strip search of plaintiff. Warden Campbell had also received two anonymous4 tips in the form of letters, each of which asserted that plaintiff had been smuggling marijuana into the prison to give to her husband. The letters arrived nearly a week apart and, significantly, came from both inside and outside the prison. Nevertheless, Warden Campbell did not act on the basis of these letters because he felt that they lacked credibility. When confronted with a competent and reliable officer who had reached the identical conclusion, however, Warden Campbell authorized the search.

The majority relies on several cases from other circuits to support its conclusion that Warden Campbell, despite the two anonymous letters, was required to corroborate Officer Starbuck’s conclusions before relying upon them. In Hunter v. Auger, 672 F.2d 668 (8th Cir.1982), the court held that each of three separate strip searches had been conducted without reasonable suspicion because each was conducted on the basis of a single anonymous tip. Id. at 670-71, 677. Here, of course, the strip search of plaintiff was conducted on the basis of two anonymous tips, each from a different source and both specifically accusing plaintiff, as well as the conclusions of a known and reliable “informant,” Officer Starbuck.

The majority also relies on Smothers v. Gibson, 778 F.2d 470 (8th Cir.1985), in which prison officials strip searched an inmate’s sixty-eight-year-old mother on the basis of a single anonymous tip even though they had repeatedly strip searched the woman during her eight years of weekly visits and neither she nor her inmate son had ever been found in possession of contraband. Id. at 472. The majority, however, fails to note that even on those egregious facts, the court concluded that “questions exist as to the reasonableness of this search which should be answered at trial.” Id. at 473 (emphasis added).

The remaining cases cited by the majority, Thome v. Jones, 765 F.2d 1270 (5th Cir. 1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 313 (1986), and United States v. Afanador, 567 F.2d 1325 (5th Cir.1978), bear no resemblance to the present ease because the strip searches in those cases were conducted not only on the basis of a single uncorroborated tip, but also on the basis of tips that were not even directed at *560the party searched. See Thome, 765 F.2d at 1271 (informant’s tip that inmate’s mother was smuggling in drugs held insufficient to justify strip search of inmate’s father who was accompanying her); Afanador, 567 F.2d at 1330-31 (informant’s tip that one stewardess was smuggling drugs held insufficient to justify strip search of entire crew).

The reasonable suspicion standard, as employed in the present context, is chiefly aimed at curbing arbitrary searches by government officials who, for reasons of public policy, are not otherwise constrained by the warrant and probable cause requirements. See O’Connor v. Ortega, 480 U.S. 709, 720, 107 S.Ct. 1492, 1499, 94 L.Ed.2d 714 (1987) (plurality opinion) (non-law enforcement officials are permitted to conduct searches and seizures without a warrant or probable cause when presented with “ ‘exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant the probable-cause requirement impracticable’ ”) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring)).

This lessened standard ensures, first, that such searches are not conducted on the basis of “insubstantial ‘hunches,’ based on individual perceptions rather than independent, articulable facts_” Hunter, 672 F.2d at 675. Second, the reasonable suspicion standard guarantees that the searches are conducted on the basis of individualized suspicion rather than a generalized belief that someone, though not necessarily the party searched, is smuggling drugs. Id. In short, the test is whether, in light of all the circumstances, there are “reasonable grounds for suspecting” that a search of a particular person will reveal the particular items sought. T.L.O., 469 U.S. at 342, 105 S.Ct. at 743.

In the present case, there was sufficient evidence from which a jury could conclude, in light of all of the circumstances known to Warden Campbell, that he had “reasonable grounds for suspecting” that a strip search of the plaintiff would reveal that she was attempting to smuggle drugs into the prison. He had been informed from three separate sources, two anonymous and the third a trusted and trustworthy subordinate, that plaintiff had smuggled drugs into the prison in the past and that she would do so in the future.

The majority’s holding in this ease amounts to nothing less than the imposition of duty on the part of a prison warden to investigate the reliability of his officer’s conclusions on a case-by-case basis. Such a duty, as the discussion above reveals, is unprecedented and, I believe, unwarranted. The Fourth Amendment rights of those who seek to enter these controlled environments are adequately protected by requiring that there be an objective, individualized basis for believing that they are secreting drugs into the prison before being subjected to a strip search. By imposing a “duty to investigate,” the majority is attempting to construct a bright-line test under the reasonable suspicion standard, even though the Supreme Court has specifically rejected a similar approach in favor of a “totality of the circumstances” test under the more stringent, probable cause standard. See Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983).

Inherent in the less-strict reasonable suspicion standard is the recognition that prison wardens are not limited to searching only as a last resort. Equally inherent is the recognition that prison officials may, from time to time, order a search which fails to reveal any contraband and that they may do so without being subjected to civil liability.

Were I sitting as the trier of fact in this case, I might conclude, as the majority has, that Warden Campbell acted without sufficient justification. I am unwilling to say, however, that no reasonable person could disagree with me. Accordingly, I must dissent.

. Because, in my view, the jury’s general verdict in favor of the defendants in this case was supported by sufficient evidence of reasonable suspicion, I need not address plaintiff's argument challenging the sufficiency of the evidence regarding the issue of consent, which was also submitted to the jury. Cf. Griffin v. United States, 502 U.S. 46,-, 112 S.Ct. 466, 469, 116 L.Ed.2d 371 (1991) (holding, in a criminal case, that a "general jury verdict was valid so long as it was legally supportable on one of the submitted grounds — even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury’s action”).

. This was not an isolated, off-hand comment by Officer Starbuck, as the majority intimates. Rather, it was Warden Campbell's capsulization of the numerous phone conversations about the plaintiff that he had had with Officer Starbuck in the weeks prior to the visit during which she was strip searched.

. As for the majority's attempt to discredit Officer Starbuck’s conclusions by referring to him "merely as a declarant,” the Supreme Court rejected a similar argument in Adams, stating that "when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.” Adams, 407 U.S. at 147, 92 S.Ct. at 1923.

.I am puzzled by the majority's repeated reference to one of these letters having been written by "a non-existent person." See Maj. Op. at 556, 557. The fact that the author who penned the letter from outside the prison chose to use a fictitious name merely renders that letter, in my view, "anonymous” and does not render the author thereof "non-existent.”