Katherine Reynolds v. City of Anchorage, Leslie Watson, Jefferson County Officer

*360FRIEDMAN, J., delivered the opinion of the court, in which NELSON, J., joined. MOORE, J. (pp. 367-373), delivered a separate dissenting opinion.

OPINION

FRIEDMAN, Circuit Judge.

This appeal challenges a district court’s summary judgment dismissing a suit under 42 U.S.C. § 1983 (1994) against a female police officer who made a warrantless strip search of a female resident in a children’s home. The resident had been placed there following a juvenile court determination that she had committed various offenses. The district court dismissed her suit because it ruled that the police officer had qualified immunity. We affirm.

I

The “basic underlying facts” are, as the district court stated, “undisputed.” Mem. Op. at 1.

In 1996, a Kentucky juvenile court found that the appellant Katherine Reynolds, then sixteen years old, had committed the offenses of possession of marijuana, forgery, and fraudulent use of a credit card. As a result, she was removed from her parents custody and was placed in the Bellewood Presbyterian Home for Children (“the Bellewood Home”), a state-approved private facility for juvenile offenders. While there, she, together with several other girls, lived in Haney Cottage. Haney Cottage residents, including Reynolds, “admitted having previously used drugs while living” there. Id.

On June 8, 1997, Reynolds (then seventeen) and two other Haney residents walked around the facility’s grounds. Upon their return, two staff members observed that the girls were “acting strangely” and suspected drug use might be the reason. Id. at 2. At that same time, a local police officer of the city of Anchorage, Kentucky, who was passing Bellewood in his patrol car, telephoned the staff members to “make sure everything was alright,” id., and to “say hi.” The staff members told the officer about their suspicions that the girls “might be under the influence of drugs and might have drugs in their possession.” Id. The officer, joined by another local officer, proceeded to Haney Cottage “to assess the situation.” Id.

After the girls, including Reynolds, were placed in the cottage’s living room and instructed to stay there in the charge of a staff member, the police officers and the other staff member searched the girls’ rooms. In Reynold’s room they found “a plastic baggy ... which the officers believed may have contained drugs.” Id. In other rooms, the officers found “a baggy with a plant substance residue the officers thought might be marijuana, ... a glass vial which the officers believed may have been used as a pipe,” and “prescription pills” — all items the officers “believed to be associated with drug use.” Id.

“At some point, [Reynolds] insinuated to the staff members and the officers that she might have drugs hidden in her undergarments. [Reynolds’] statements coupled with the suspicious items located in the girls’ rooms and their strange behavior convinced the officers that the girls needed to be searched to ensure that there were no drugs in the cottage.” Id. Because the officers were all male, they called the county police department to send a female officer to conduct the searches. The department sent the appellee, Officer Leslie Watson, to perform the task. As the district court stated:

Upon her arrival, [Watson] observed the girls running throughout the cottage, playing loud music, and yelling. The Anchorage officers said that they had searched the girls’ rooms and located *361what they believed to be drug paraphernalia. She was also informed that the officers suspected that the girls might be harboring drugs in their undergarments or other clothing. [Watson] indicated that she could not perform a body cavity search without a warrant, but that she would perform a visual strip search of the girls to look for drugs.
[Watson] conducted the searches one at a time. Each girl was searched in her own room with a female staff member present. [Watson] instructed each girl to first to remove her blouse and bra, put them back on, and then to remove her bottom clothing and underwear and bend over to allow a visual inspection of her rectal area. [Watson] never physically touched any of the girls during the searches. No drugs were located on any of the girls during the strip searches.

Id. at 3.

Reynolds then filed in the United States District Court for the Western District of Kentucky the present suit under 42 U.S.C. § 1983 against the City of Anchorage, its Chief of Police, and the police officers involved. She sought injunctive and declaratory relief, and compensatory, exemplary, and punitive damages. All defendants except Watson settled.

On cross-motions for summary judgment, the district court granted Watson’s motion, ruling that she had qualified immunity. The court

conclude[d] that in 1997 it was not clearly established that a search warrant supported by probable cause was required to constitutionally conduct a strip search of a minor suspected of possessing drugs in a juvenile home or detention center. Based on the particular facts, and in light of the then existing case law to guide [Watson], the Court conclude[d] that the type and scope of the search performed on [Reynolds] were objectively reasonable. Therefore, [Watson] [wa]s qualifiedly immune from suit under 42 U.S.C. § 1983.

Id. at 11-12.

II

In its most recent qualified immunity decision, the Supreme Court stated that a court determining “a qualified immunity defense” in “a suit against an officer for an alleged violation of a constitutional right,” must make two inquiries. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, the “court ... must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201, 121 S.Ct. 2151. “[Second, assuming the violation is established, the question whether the right was clearly established must be considered....” Id. at 200, 121 S.Ct. 2151. “If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” Id. at 201, 121 S.Ct. 2151.

We therefore shall consider whether Officer Watson’s strip search of Reynolds violated the Fourth Amendment and whether Officer Watson had qualified immunity in making the search. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1042 (6th Cir.2003); Greene v. Barber, 310 F.3d 889, 894 (6th Cir.2002). In Virgili v. Gilbert, 272 F.3d 391, 394 (6th Cir.2001), however, decided after Saucier, this court, after holding that state prison employees had qualified immunity for strip searching *362another prison employee, stated: “We need not and do not, opine on the Fourth Amendment standards to be applied to strip-searches of prison employees.”

A. The application of the Fourth Amendment to warrantless strip searches has been developed largely in cases involving such searches in prisons and in schools. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court held that visual body cavity inspections during strip searches of pre-trial detainees and convicted prisoners after they had contact with outsiders were not “unreasonable” searches under the Fourth Amendment. The searches were conducted at the “federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees.” Id. at 523, 99 S.Ct. 1861. The Court stated that applying “[t]he test of reasonableness under the Fourth Amendment ... [i]n each case ... requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. 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.” Id. at 559, 99 S.Ct. 1861. It pointed out that a “detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Id.

In Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th Cir.1987), this court held that under Wolfish’s balancing analysis, the strip search of a detainee in a local jail pursuant to a policy of so searching detainees before moving them into an area of the jail where they would have contact with the general prison population, was not an unreasonable search and therefore did not violate the Fourth Amendment. The court stated: “The security interests of the jail in conducting a search at this point were strong. Dobrowolskyj was about to come into direct contact with the general jail population, including prisoners who would then be moved into all sections of the jail. The jail had legitimate interests in preventing the flow of contraband into the other sections of the jail.” Id. at 959.

Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), although involving a different issue, provides further guidance. The question there was whether a probation officer’s warrantless search of a probationer’s home, pursuant to a state regulation authorizing such search if there were “reasonable grounds” to believe that contraband was present there, violated the Fourth Amendment. Id. at 870-71, 107 S.Ct. 3164. The search was made after the police had told the probation department that “there were or might be guns” in the probationer’s apartment. Id. at 871, 107 S.Ct. 3164. The search uncovered a handgun in the apartment. The Court held that “[t]he search of [the probationer’s] residence was ‘reasonable’ within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers.” Id. at 880, 107 S.Ct. 3164.

The Court indicated that “[a] warrant requirement would interfere to an appreciable degree with the probation system,” id. at 876, 107 S.Ct. 3164, and that “the probation regime would also be unduly disrupted by a requirement of probable cause,” id. at 878, 107 S.Ct. 3164. It stated: “In such circumstances it is both unrealistic and destructive of the whole object of the continuing probation relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases — especially those involving drugs or illegal weapons — the *363probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society.” Id. at 879,107 S.Ct. 8164.

Cases involving searches of students by school authorities also are instructive. In New Jersey v. T.L. O., a school principal searched a student’s purse after a teacher found the student smoking in the restroom, in violation of school rules. 469 U.S. 325, 328, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The Court held that the search was reasonable. After noting that the Fourth Amendment “applies to searches conducted by public school officials,” id. at 333, 105 S.Ct. 733, the Court stated that “school officials need not obtain a warrant before searching a student who is under their authority,” id. at 340, 105 S.Ct. 733. It stated that “the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.... Under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. at 341-42, 105 S.Ct. 733 (footnotes omitted).

This court applied the T.L.O. reasonableness analysis to a warrantless strip search for drugs conducted by school officials in Williams v. Ellington, 936 F.2d 881 (6th Cir.1991). There a female student reported to the principal (Ellington) that Williams and another girl had used drugs at school; there was other evidence that supported that conclusion. After a search of William’s locker, books and purse produced no evidence of drugs, the principal asked a female assistant principal to strip search Williams, which she did. Id. at 883. No drugs were found.

Williams then filed suit under 42 U.S.C. § 1983 against school officials (including the principal and the assistant principal who conducted the strip search) and the school board members. This court affirmed the district court’s summary judgment for the defendants. Id. at 889. It held that the defendants had qualified immunity. Id. This court stated:

Ellington’s decision to search Williams and her possessions for the presence of drugs was based upon the events that occurred during the week of January 17, 1988. A study of the record leads us to conclude that Ellington and the remaining Defendants were not unreasonable in suspecting, based on the information available at the time, that a search of Williams would reveal evidence of drugs or drug use. Further, Defendants were not unreasonable, in light of the item sought (a small vial containing suspected narcotics), in conducting a search so personally intrusive in nature.

Id. at 887

In Tarter v. Raybuck, 742 F.2d 977, 983 (6th Cir.1984), this court held that school officials had made a reasonable search of a student’s person (although he did not remove all of his clothing) where they “had observed activity they reasonably believed *364to indicate the use and sale of marijuana, activity which plainly constituted a violation of a well established policy.” This court stated that in determining whether the search was reasonable, “we balance the [F]ourth [A]mendment rights of individual students with the interest of the state and the school officials in the maintenance of a proper educational environment to educate today’s youth.” Id. at 982. It “h[e]ld that a school official or teacher’s reasonable search of a student’s person does not violate the student’s [Fjourth [Ajmendment rights, if the school official has reasonable cause to believe the search is necessary in the furtherance of maintaining school discipline and order, or his duty to maintain a safe environment conducive to education.” Id.

B. Under the foregoing decisions, the determination of the reasonableness under the Fourth Amendment of a strip search of a juvenile delinquent in a detention facility requires us to balance “the need for the particular search against the invasion of personal rights that the search entails.” Wolfish, 441 U.S. at 559, 99 S.Ct. 1861.

The situation of the juvenile delinquent inmates of the Bellewood Home lay somewhere between that of prison inmates and students in school. The Bellewood inmates were not as closely confined or strictly controlled and supervised as prison inmates or detainees. Perhaps their expectations of privacy in that situation were somewhat greater than those of prisoners, but this slight difference appears insignificant. On the other hand, they were still subject to substantial restraint; they were required to live and remain in the Home and they were not free to leave it as they wished. Their confinement to the Home, like that of inmates in a prison, was punishment for prior criminal misdeeds. In comparison to students in school, whose mandatory attendance is not punishment for criminal misconduct but a method of insuring their education, the inmates of the Home were under substantially greater restraint and had a lesser expectation of privacy than do students.

Applying this balancing approach, we conclude that Officer Watson’s strip search of Reynolds was not unreasonable. In so concluding, we apply Wolfish’s admonition to “consider the scope of the particular intrusion, the manner in which it [was] conducted, the justification for initiating it, and the place in which it [was] conducted.” Id. Wolfish also pointed out that a “detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Id. The Bellewood Home also was “a unique place fraught with” a variety of problems and dangers, including the use of drugs by its residents. The need to “maintain[ ] ... discipline and order” there is no less than in school. Tarter, 742 F.2d at 982.

Following the determination by the juvenile court that Reynolds had committed three criminal offenses, including possession of marijuana, the court removed her from her parents’ custody and placed her in the Bellewood Home, which thereby became her new “home.” The Bellewood Home had the duty and responsibility to insure the safety, health, and well being of Reynolds and the other inmates. The use and/or possession of drugs by Reynolds or the other girls would cause serious problems within the Bellewood Home and adversely affect its proper functioning. The Home thus had a strong interest in eliminating and preventing drug use on the premises by its residents.

Watson and other girls admitted they previously had used drugs while living in the Home. They had acted “strangely” after returning from a walk, which led staff *365members to suspect the use of drugs. A search of their rooms by the police officers had uncovered paraphernalia that the officers “believed to be associated with drugs use.” Mem. Op. at 2. Reynolds had insinuated that she had drugs hidden in her underwear. The police officers justifiably concluded that the only way to assuage these concerns about the girls’ possession of drugs “and to ensure that there were no drugs in the cottage” was to strip search the girls. Id.

Although the strip search was a highly invasive procedure, it was no more invasive than necessary to accomplish its purpose of insuring that Reynolds and the other girls were not concealing drugs on their persons. It was conducted in a way designed to minimize its intrusive effect. Officer Watson made the search in the privacy of the girls’ own rooms and in the presence of only a single staff member. She did not touch any of the girls during the search. Considering all the circumstances, we conclude that Officer Watson’s strip search of Reynolds was not unreasonable.

Reynolds continues to rely heavily here, as she did in the district court, on this court’s unpublished opinion in Toles v. Friedman, No. 99-4031, 238 F.3d 424, 2000 WL 1871683 (6th Cir. Dec 11, 2000). As the district court correctly stated, however, the “circumstances” in the present case “are significantly different from those in Toles.” Mem. Op. at 6.

In Toles, three girls had spent some time trying on bathing suits in a department store but did not purchase any. A clerk, suspicious because of the length of time the girls were in the dressing room, called the defendant Friedman, an off-duty police officer who was doing security work for the store. When the girls were about to leave the store, Friedman stopped them. After searching their purses and finding nothing, he suspected that they might be concealing a bathing suit under their outer clothing. Friedman arranged for a female security guard at the mall where the store was located to strip search the girls. She did so but did not find a bathing suit.

The girls sued Friedman, who claimed qualified immunity. The district court refused to grant such immunity, finding there were disputed factual issues. Friedman appealed to this court only from the denial of qualified immunity.

We dismissed the appeal for lack of jurisdiction because an order denying qualified immunity due to the presence of a disputed issue of material fact is not immediately appealable. We held that there was such an issue: whether the girls consented to the strip search. We ruled that “a reasonable law enforcement officer, in the circumstances presented, could not believe that exigent circumstances justified the warrantless strip searches of the young women,” and that “the only possible exception to the warrant requirement that could have validated the presumptively unreasonable, warrantless search was a search undertaken pursuant to the consent of the plaintiffs.” Id. at 4. We concluded that “[t]he existence of that unresolved factual dispute preclude[d] this court from exercising jurisdiction over this appeal at this time.” Id. at 5.

In Toles, the defendant sought to justify the strip search on the basis of exigent circumstances, an exception to the warrant requirement not involved here. Toles arose in the commercial context of a suspected theft by customers in a department store — a situation totally unlike the suspected use of drugs by a juvenile delinquent in a children’s home.

C. Should the analysis or result be different because the strip search was conducted by a police officer rather than by *366an employee of the Bellewood Home? We think not.

As Reynolds points out, the cases we have discussed in Part II.A that formulate and apply the balancing test in determining the Fourth Amendment reasonableness of strip searches involved searches by persons other than police officers. It does not follow, however, that those principles cannot properly be applied where the strip search is made by a police officer. Those cases do not state that their principles are inapplicable to strip searches by police officers.

The inquiry in those cases focused on balancing “the need for the particular [strip] search against the invasion of personal rights that the search entails,” Wolfish, 441 U.S. at 559, 99 S.Ct. 1861, not on the identity of the person conducting the search. As we have shown, under that balancing test the strip search of Reynolds would have been reasonable if the staff members of the Bellewood Home had conducted it. We see no valid reason why the result should be different because it was a police officer who conducted the search. In either instance, the purpose and objective of the search was the same: to help the Home determine whether the girls possessed drugs, and thus to aid the Home in uncovering what the facts suggested may have been the illegal use of drugs by some of the residents.

The district court concluded that, based on the facts known to Officer Watson, described above,

it was not unreasonable for [Watson] to conclude that a search was necessary both to ensure [Reynolds’] safety and the safety of the other residents. Thus, it was objectively reasonable for [Watson] to conclude that interests apart from those of ordinary law enforcement permitted her to conduct a warrantless strip search of [Reynolds].

Mem. Op. at 11.

On this record, we have no reason to disagree with or reject those conclusions. Under them, the search did not require a warrant even though conducted by a police officer. It was reasonable because Officer Watson had a reasonable suspicion that the girls possessed narcotics. Cf. United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (“When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.”).

Ill

Even if our conclusion that the strip search did not violate the Fourth Amendment were to be rejected, we still would affirm the district court’s summary judgment for Officer Watson dismissing the complaint. That is because we agree with the district court that Officer Watson had qualified immunity for conducting the search.

The Supreme Court has explained that [t]he concern of the [qualified] immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, *367however, the officer is entitled to the immunity defense.

Saucier, 533 U.S. at 205, 121 S.Ct. 2151.

Under qualified immunity, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). See also Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (In damage suit against former Attorney General Mitchell for authorizing a wiretap, “[u]nder Harlow v. Fitzgerald, Mitchell [was] immune unless his actions violated clearly established law.”). This court has stated that “[t]o determine what rights are ‘clearly established,’ we must look to decisions from the Supreme Court and from courts within this circuit,” although “[i]n rare instances, where authority is lacking from these sources, we may also review decisions of other courts.” Williams v. Ellington, 936 F.2d at 885.

“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. The district court correctly concluded that when Officer Watson conducted the strip searches in 1997, it was not clearly established that those searches were unlawful and that it would not have been clear to her that her conduct was unlawful.

There has been no decision of the Supreme Court, this court or any courts within this circuit — or, as far as we know, of any other court — that has addressed the application of the Fourth Amendment to strip searches of juvenile delinquents in an institutional home in which they are confined. Moreover, as is shown by the analysis, in Part II above, of existing precedent that deals with the Fourth Amendment status of strip searches in other contexts, the question is close and difficult. It involves subtle legal distinctions and inferences that a reasonable police officer would not and could not be expected to make.

In these circumstances, any mistake that Officer Watson may have made about her authority to conduct the strip searches was reasonable. It cannot be said that at that time it was clearly established that Reynolds had a constitutional right not to be so searched except pursuant to a valid search warrant.

Officer Watson was aware of and sensitive to the existing settled limits upon her authority to make strip searches. As the district court noted, upon arriving at the Bellewood Home, she “indicated that she could not perform a body cavity search without a warrant, but that she would perform a visual strip search of the girls to look for drugs.” Mem. Op. at 3. Even if she were mistaken in concluding that she could make a warrantless visual strip search, such mistake was reasonable.

CONCLUSION

The summary judgment of the district court in favor of Officer Watson is affirmed.