Wood v. MCC Superintendant

                United States Court of Appeals
                    For the First Circuit
                                         

No. 96-1078

                     SHARON WOOD ET AL.,

                   Plaintiffs, Appellants,

                              v.

                   JAMES R. CLEMONS ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]
                                                               

                                         

                            Before

                   Torruella, Chief Judge,
                                                     

               Campbell, Senior Circuit Judge,
                                                         

                  and Lynch, Circuit Judge.
                                                      

                                         

   John  S. Whitman,  with  whom Richardson,  Whitman, Large  &
                                                                           
Badger was on brief, for appellants.
                

   Diane Sleek,  Assistant Attorney  General, with whom  Andrew
                                                                           
Ketterer, Attorney General of Maine, was on brief, for appellees.
                  

                                         

                        July 22, 1996
                                         


      LYNCH,  Circuit Judge.    Officers  at a  Maine  prison
                                       

received  a tip that a female inmate's teenage children would

be   smuggling  drugs   into   the  prison   in  her   infant

granddaughter's booties.   The superintendent of  the prison,

erroneously believing that the tip  had been confirmed by two

unconnected  confidential  informants,  authorized   a  strip

search of the visitors.  In actuality, the tip had originated

from a single anonymous and uncorroborated source.  The strip

search  of   the  plaintiff   minors  turned  up   no  drugs.

Plaintiffs brought  suit against the  superintendent and  the

Commissioner of the Maine  Department of Corrections under 42

U.S.C.   1983.1  The  sole question on appeal is  whether the

district  court correctly  entered  summary  judgment on  the

plaintiffs'  damages claim  in  favor  of the  superintendent

based on his assertion of the qualified immunity defense.  We

conclude that the  constitutionality of prison-visitor  strip

searches is governed by  the standard of reasonable suspicion

and  that  a  reasonable  official  in  the  superintendent's

position  could have  believed, in  light of  the information

                    
                                

1.  The named plaintiffs  in this action are Sharon Wood; her
son Philip Thamert; her daughter  Katrina Thamert, on her own
behalf  and as  parent of  Maria Thamert;  and John  and Mary
Foss, as parents and next friends of Michelle Hatch,  Phillip
Thamert's girlfriend.  They purport to assert their claims on
behalf of  a statewide class  of individuals affected  by the
alleged  strip-search  policies  of  the  Maine  Correctional
Center  ("MCC").    The  defendants  are  James  R.  Clemons,
Superintendent of the MCC,  and Donald L. Allen, Commissioner
of the Maine Department of Corrections.

                             -2-
                                          2


before him, that the searches did not violate the plaintiffs'

constitutional rights.  Accordingly, we affirm.

                              I

      The record, viewed in the  light most favorable to  the

plaintiffs, reveals the following.   Since September of 1993,

Sharon  Wood had  been an  inmate  at the  Maine Correctional

Center ("MCC")  in Windham, Maine, serving  a three-year term

of confinement for a drug-related conviction.  From the  time

she   was  first   incarcerated   there,   she  was   visited

approximately  every other  week by  her son  Phillip Thamert

(then seventeen  years of age), her  daughter Katrina Thamert

(then sixteen), and Phillip's girlfriend Michelle Hatch (then

seventeen).   On each visit, Katrina brought along her infant

daughter  Maria (then  seven months  old).   Nothing happened

during any of these visits to arouse any suspicion of illegal

activity on  the part of Wood  or her visitors.   Wood had no

record of drug violations while at MCC.

      The  events  leading  to the  strip  search  of  Wood's

visitors  began with a telephone call to the MCC by Detective

Peter   Herring,  the  State  Police  Department's  appointed

liaison  to  the prison.   On  a  "large number"  of previous

occasions,   Herring   had   provided  MCC   officials   with

information obtained from his  own confidential sources about

criminal activity  at the prison.   Herring's information had

invariably turned out to be accurate in the past.

                             -3-
                                          3


      On January 5, 1994,  Herring called the MCC to  provide

another tip.  Corrections  Officers Charles Baker and Stephen

Butts,  both responsible  for criminal  investigations within

the MCC, fielded Herring's call together.  Herring told Baker

and Butts that he had obtained information that inmate Sharon

Wood was receiving drugs from the outside.  Herring said that

he  had been told by  a confidential informant  who, in turn,

had  heard from an  anonymous source that  Wood was receiving

drugs during visits, and  that the drugs were being  smuggled

into  the  prison  in  her  infant  granddaughter's  booties.

Herring disclosed  to Baker  and Butts that  he had  obtained

this  information on a second-hand basis, and that at no time

had Herring spoken directly  to the original anonymous source

about the tip.  Herring  himself had no personal knowledge of

Sharon Wood or the persons who were supposedly bringing drugs

to her.  Herring did not provide Baker or Butts with the name

of either  his confidential informant or  the original source

of the tip.2

      Soon after  the phone  call, Officer  Baker prepared  a

written  report of  the conversation  with Herring.   Baker's

report,  however, contained  an important  inaccuracy.   That

inaccuracy may be what ultimately allowed the strip search to

take place.   The report  implied that the  information about

                    
                                

2.  The record does not clearly indicate whether Herring ever
knew the identity of the original tipster.

                             -4-
                                          4


Wood  had  been  provided  to  Herring  by  two  independent,
                                                                        

mutually corroborating confidential informants:
                                                          

      Det Peter Herring  advised Butts  and Baker  that
      he received  information from  two separate  CI's
      that prisoner Sharon  Wood (Dorm 2)  is allegedly
      receiving drugs  during visits.  Supposedly,  the
      drugs   are  hidden   in  Wood's  granddaughter's
      booties.    Security projects  office  to monitor
      and   will   request   appropriate  action   when
      required.

Thus,  by   indicating  that   two   unconnected  "CI's"   --
                                              

confidential  informants  -- had  provided  Detective Herring

with  the  same  information,  Baker's  report  significantly

overrepresented the actual reliability of Herring's tip.

      Five days later,  on January 10, 1994,  defendant James

R.  Clemons, Superintendent of  the MCC,  met with  Baker and

Butts  to conduct  their  regular weekly  review of  security

matters at the prison.  At this meeting, Clemons read Baker's

report of  the information  received from Detective  Herring.

It is undisputed that,  as a result of reviewing  the report,

Clemons  came  to believe  in  good faith  that  two separate

confidential sources had provided Herring  with precisely the

same tip concerning drug-smuggling by Sharon Wood's visitors.

Clemons  signed Baker's  report  to acknowledge  that he  had

reviewed it and to confirm that the  security projects office

run by Baker and Butts would monitor the situation and notify

Clemons if  and when  any further action  became appropriate.

Following  the  January  10  meeting,  no  one  at  the  MCC,

including Clemons, conducted  any additional investigation or

                             -5-
                                          5


follow-up concerning the Herring tip.  No action was taken on

the tip prior to the plaintiffs' next visit to the MCC.

      That visit  came on February  22, 1994.   At 10:00 a.m.

that  morning,  Officer Baker  noticed  the  names of  Wood's

children  on  the  prison  visitor  schedule  for  that  day.

Recalling  the  phone  conversation  with  Peter  Herring  on

January 5, Baker paged Superintendent Clemons, who was at his

home, to request authorization to  conduct a strip search  of

the  visitors based on the Herring tip.  About twenty minutes

later,  Clemons responded  to Baker's  page and  authorized a

strip search of Wood's scheduled visitors.  Baker then called

Detective  Herring to  inform  him of  the impending  search.

Herring agreed to stand by in case arrests had to be made.

      Katrina  and  Phillip  Thamert,  Katrina's  baby,   and

Michelle  Hatch arrived  at  the prison  at  about 1:20  p.m.

After Katrina, Phillip and  Michelle signed in, Officer Baker

and another officer took  them aside and told them  that they

would  have to submit to a search for contraband drugs before

they would be  permitted to  see Sharon Wood.   Baker read  a

"consent  to search" form  to the visitors,  advising them of

their constitutional rights to refuse  to give consent and to

require the prison to obtain search warrants, and to withdraw

consent  at any time prior  to the conclusion  of the search.

The form also said that if the visitors refused to consent to

the  search, their  visiting privileges would  be immediately

                             -6-
                                          6


and indefinitely  terminated.  Neither Baker  nor the consent

form  made clear that the  search to which  the visitors were

being  asked  to consent  was a  strip  search.   After Baker

finished reading,  each of Wood's visitors  (except the baby)

signed a consent form.

      Katrina Thamert and  her baby  were then  taken by  two

female officers to  a private bathroom, and Phillip was taken

by  two  male  officers  to  a  private storage  room,  while

Michelle Hatch  waited in the  main reception area.   Katrina

was asked to remove  her baby's clothing and diaper.   One of

the  two  female officers  visually  inspected  the baby  and

checked  the   baby's  clothes  and  diaper  for  contraband.

Katrina  held  her baby  at  all times,  and  neither officer

touched the baby during the search.  Katrina was then told to

put the baby's clothes back on.  Although there were no drugs

found on the baby or her clothing, the searches continued.

      In the storage room,  Phillip was told by the  two male

officers to take off his clothing, and he did so.  One of the

male  officers  searched  through his  clothing  and visually

inspected his  mouth and ears.  He was asked to lift his arms

and his  genitals.   Neither officer  touched Phillip  at any

time.   He was then permitted to  dress and was taken back to

the reception area.

      Phillip  held  Katrina's  baby  in  the  reception area

while  Katrina was searched in the bathroom by the two female

                             -7-
                                          7


officers.  After removing her clothing, she was asked to lift

her breasts,  and then was told  to squat and cough.   One of

the  officers manually  searched  her clothing  and  visually

inspected  her mouth  and  ears.    Neither of  the  officers

touched  Katrina during  the search.   She  was permitted  to

dress  and return to the reception area.  The female officers

then  escorted  Michelle Hatch  into  the  bathroom and  went

through the same procedure as they had with Katrina.

      None of the  searches having turned up  contraband, the

visitors  were  permitted  to  see  Sharon  Wood.    Katrina,

Phillip,  and Michelle  told Wood  about the  strip searches.

Following the  visit, Wood  filed an internal  grievance with

the  MCC.   After an  internal investigation,  Superintendent

Clemons responded  to Wood  with a memorandum  asserting that

the strip searches had not violated any prison  regulation or

policy.   Shortly thereafter,  the Commissioner of  the Maine

Department of  Corrections affirmed Clemons'  decision.  This

lawsuit followed.

                              II

      The plaintiffs'  amended complaint  sought damages,  an

injunction, and  declaratory relief for a  variety of alleged

constitutional violations and common law torts arising out of

the strip searches.  The district court, on cross-motions for

summary judgment  and partial  summary judgment,  granted the

defendants' motion  for summary judgment in  its entirety and

                             -8-
                                          8


denied the plaintiffs' motions for class certification and to

file a second amended complaint.

      The plaintiffs appeal solely from the district  court's

entry of judgment in  favor of defendant Clemons as  to their

claim  for   damages  under    1983  based   on  his  alleged

violations of  the plaintiffs' Fourth Amendment  rights.  The

only question in  this appeal is  whether the district  court

correctly  concluded  that Clemons  is entitled  to qualified

immunity from  the  plaintiffs' damages  claim under    1983.

The  plaintiffs  argue  that   Clemons  is  not  entitled  to

qualified immunity here,  because any reasonable  official in

Clemons' position would have  known that the Fourth Amendment

does not  permit officials to undertake a  strip search based

on  an uncorroborated  tip received  from a  single anonymous

source.

      We  review  the  district  court's  grant   of  summary

judgment de novo.   See St.  Hilaire v.  City of Laconia,  71
                                                                    

F.3d 20, 24 (1st  Cir. 1995), cert. denied, 64  U.S.L.W. 3849
                                                      

(1996).    The ultimate  question of  whether a  defendant is

entitled,  on  a given  set of  facts,  to the  protection of

qualified  immunity is  a question  of law  for the  court to

decide.   See id. at 24 n.1;  Prokey v. Watkins, 942 F.2d 67,
                                                           

73  (1st Cir.  1990); Cortes-Quinones  v. Jimenez-Nettleship,
                                                                        

842  F.2d 556,  561 (1st  Cir.), cert.  denied, 488  U.S. 823
                                                          

(1988).

                             -9-
                                          9


                             III

      The "touchstone" of the qualified immunity  question is

the  concept  of  "objective  legal  reasonableness."     See
                                                                         

Anderson  v. Creighton, 483 U.S.  635, 639 (1987).   Could an
                                  

objectively  reasonable official,  situated similarly  to the

defendant, have believed that his conduct did not violate the

plaintiffs'   constitutional  rights,  in  light  of  clearly

established  law  and   the  information  possessed  by   the

defendant at the time of the allegedly wrongful conduct?  See
                                                                         

Hegarty v. Somerset  County, 53 F.3d  1367, 1373 (1st  Cir.),
                                       

cert. denied, 116 S. Ct. 675 (1995); Singer v. Maine, 49 F.3d
                                                                

837,  844 (1st Cir. 1995).  Here, the plaintiffs contend that

Clemons'  conduct  --  authorizing   the  strip  searches  --

violated their  clearly established  rights under  the Fourth

Amendment and fell below the operative threshold of objective

legal reasonableness.

      Clemons disputes the  plaintiffs' position  both as  to

the level  of suspicion required to justify strip searches of

prison visitors, and as to when the legal rule embracing that

level  of suspicion  became "clearly  established."3   On the

                    
                                

3.  Clemons,  appropriately, makes  no serious  argument that
the plaintiffs' signing of the  "consent to search" forms  on
the day of the visit constitutionally justified the searches.
See  Cochrane v. Quattrocchi, 949 F.2d 11, 14 (1st Cir. 1991)
                                        
("[A]  prison visitor  confronted  with  the  choice  between
submitting  to  a strip  search  or foregoing  [sic]  a visit
cannot provide  a 'legally cognizable consent,'"  because "it
is  the very choice to  which [the visitor]  [is] put that is
constitutionally  intolerable."  (quoting Blackburn  v. Snow,
                                                                        

                             -10-
                                          10


first  issue,  we agree  with the  plaintiffs that  a prison-

visitor strip  search  must be  predicated  upon  "reasonable

suspicion."  Finding no need  to resolve the second question,

however,  we  conclude  that  the defendant  is  entitled  to

qualified immunity on the record here, accepting arguendo the
                                                                     

plaintiffs'  contention as  to when  the relevant  law became

clearly established.

                              A

      We  begin  by  examining  the   nature  of  the  Fourth

Amendment protections  to which the plaintiffs  were entitled

as  visitors to  the  MCC.   Although  a generous  amount  of

deference is given to prison  officials on matters of  prison

safety, security, and discipline, see, e.g., Bell v. Wolfish,
                                                                        

441 U.S. 520, 547-48 (1979), it is clear that visitors do not

relinquish their Fourth Amendment rights at the prison gates.

See Blackburn v.  Snow, 771  F.2d 556, 563  (1st Cir.  1985).
                                  

Prison visitors retain the right to be free from unreasonable

searches and seizures.  Cochrane v. Quattrocchi, 949 F.2d 11,
                                                           

13 (1st Cir.  1991), cert. denied, 504 U.S. 985  (1992).  The
                                             

meaning of "reasonableness" for Fourth Amendment purposes  is

highly situational.    A search  that  is reasonable  in  the

prison environment may not be in other contexts less "fraught

with serious security dangers."  Bell, 441 U.S. at 559.   The
                                                 

                    
                                

771  F.2d 556, 568, 569  (1st Cir. 1985)),  cert. denied, 504
                                                                    
U.S. 985 (1992).

                             -11-
                                          11


standard of "reasonableness" that governs searches in a given

context depends, in general, upon a balancing of "the need to

search  against  the  invasion  which  the  search  entails."

Camara v.  Municipal Court, 387 U.S. 523,  536-37 (1967); see
                                                                         

also Blackburn, 771 F.2d at 564.
                          

      In the  volatile  context  of  a prison,  the  need  to

preserve internal  security is  very strong.   See Blackburn,
                                                                        

771 F.2d at 562  (quoting Hudson v. Palmer, 468 U.S. 517, 526
                                                      

(1984)).  Prison  officials may  well have a  need to  search

visitors  in some manner in order to prevent the smuggling of

contraband (such as  drugs or  weapons) to inmates.   On  the

other  side   of  the   balance,  people  naturally   have  a

"diminished expectation of privacy" when they enter a prison,

Blackburn, 771 F.2d at  564, and so "those visiting  a prison
                     

cannot  credibly claim to carry with them the full panoply of

rights  they normally enjoy," id.  at 563; see  also Spear v.
                                                                      

Sowders,  71  F.3d  626,  630  (6th  Cir.  1995)  (discussing
                   

constitutionality of routine visitor searches).

      However, a strip search can  hardly be characterized as

a  routine procedure  or as  a  minimally intrusive  means of

maintaining prison  security.   Indeed, "'a strip  search, by

its  very  nature,  constitutes  an  extreme  intrusion  upon

personal privacy, as well as an offense to the dignity of the

individual.'"   Cochrane, 949 F.2d  at 13  (quoting Burns  v.
                                                                     

Loranger,   907  F.2d   233,  235   n.6  (1st   Cir.  1990)).
                    

                             -12-
                                          12


Accordingly, a  strip search cannot be  justified absent some

quantum of individualized suspicion.  See Blackburn, 771 F.2d
                                                               

at 564-65  (invalidating as unconstitutional  a prison policy

requiring  strip  searches   of  all  visitors   without  any
                                                                         

particularized suspicion of illegal activity).

      In determining  the level  of individualized  suspicion
                                           

against which to test the constitutionality of prison-visitor

strip  searches with a  view to  striking the  proper balance

between  respecting the  legitimate  privacy expectations  of

prison  visitors and  the need  to maintain  prison security,

courts have converged upon one common benchmark: the standard

of "reasonable suspicion."   See Spear, 71 F.3d at  630; Romo
                                                                         

v. Champion, 46  F.3d 1013, 1020  (10th Cir.), cert.  denied,
                                                                        

116 S. Ct. 387  (1995); Daugherty v. Campbell, 935  F.2d 780,
                                                         

787 (6th  Cir. 1991) (Daugherty  I), cert.  denied, 502  U.S.
                                                              

1060 (1992); Thorne v.  Jones, 765 F.2d 1270, 1277  (5th Cir.
                                         

1985), cert. denied, 475 U.S.  1016 (1986); Hunter v.  Auger,
                                                                        

672 F.2d 668, 674 (8th Cir. 1982); accord Varrone v. Bilotti,
                                                                        

867  F. Supp.  1145, 1149  (E.D.N.Y. 1994).   This  court has

similarly  identified  the  reasonable   suspicion  standard,

albeit  in  another   context,  as  the  one   by  which  the

constitutionality  of  a strip  search should  be determined.

See United  States v. Uricoechea-Casallas, 946  F.2d 162, 166
                                                     

(1st Cir. 1991) (stating, in context of border searches, that

"[w]here a search is  not routine (e.g., a strip  search), we
                                                   

                             -13-
                                          13


have  applied the  'reasonable suspicion'  standard." (citing

UnitedStates v. Wardlaw, 576F.2d 932, 934-35(1st Cir. 1978)).
                                   

      Without  deciding  the  question  whether  or  when the

reasonable suspicion standard  became clearly established  in

the  prison   visitor  context  in  this   circuit,4  we  now

explicitly state  that "reasonable  suspicion" is  indeed the

proper standard  by which  to gauge the  constitutionality of

prison-visitor strip searches.  That  standard guards against

arbitrary  or  clearly  unfounded  searches  by placing  non-

trivial constraints  upon the ability of  prison officials to

strip  search visitors,  see Daugherty  v. Campbell,  33 F.3d
                                                               

554,  556-57 (6th  Cir.  1994) (Daugherty  II) (holding  that
                                                         

uncorroborated  tips without  indicia of  reliability do  not

create  reasonable suspicion), but  avoids unduly restricting

prison   officials   in   responding   to  the   demands   of

institutional  security.   The reasonable  suspicion standard

thus  preserves  an  appropriate  balance  between  visitors'

legitimate privacy  interests and  the  government's need  to

search.    In  sum,   prison  officials  violate  the  Fourth

                    
                                

4.  Clemons  contends that the  reasonable suspicion standard
was not clearly  established in this  circuit as of  February
1994.   He  observes  that this  court,  in its  most  recent
published opinion addressing the  issue before that time, had
reserved   the  question,  saying  only  that  visitor  strip
searches   require   "some   as-yet   undefined   'level   of
individualized  suspicion.'"    Cochrane,  949  F.2d  at  13.
                                                    
Plaintiffs  contend that despite  the statement  in Cochrane,
                                                                        
decisions  in other circuits had made  clear by February 1994
that   "reasonable  suspicion"   was  indeed   the  governing
standard.

                             -14-
                                          14


Amendment  when  they undertake  a strip  search of  a prison

visitor  without reasonable  suspicion of  circumstances that

justify  the  search.   The  concrete  meaning of  reasonable

suspicion turns on the facts of each particular case.

                              B

      Plaintiffs can  overcome the  defendant's assertion  of

the qualified immunity defense  only by showing that Clemons'

conduct  was  objectively  unreasonable in  light  of clearly

established law.  Assuming, without deciding, for purposes of

our analysis here, that the reasonable suspicion standard was

clearly  established law by the  date on which the plaintiffs

were strip searched, we conclude that Clemons  is entitled to

qualified immunity.   A  reasonable official in  his position

could have believed that  there was reasonable suspicion that

the plaintiffs would be bringing drugs to Sharon Wood.5

      A  "reasonable suspicion"  of  wrongdoing is  something

stronger  than a mere "hunch," Terry  v. Ohio, 392 U.S. 1, 22
                                                         

(1967),  but  something  weaker  than probable  cause.    See
                                                                         

Alabama v. White, 496 U.S. 325, 330 (1990); Spear, 71 F.3d at
                                                             

630.    At  a  minimum,  the  reasonable  suspicion  standard

requires that the decision to search be  based on articulable

factual  information  bearing  at   least  some  indicia   of

                    
                                

5.  Plaintiffs  do  not  argue   that  the  Fourth  Amendment
required the  strip searches  to be predicated  on any  basis
stronger than reasonable suspicion.

                             -15-
                                          15


reliability.    See, e.g.,  White,  496 U.S.  at  330; United
                                                                         

States  v.  Sokolow,   490  U.S.  1,  7  (1989).     However,
                               

"reasonable suspicion can arise from information that is less

reliable than that required to show probable cause."   White,
                                                                        

496  U.S. at 330.  Although an anonymous tip, standing alone,

may  typically  fail  to   create  reasonable  suspicion,  an

anonymous tip that  is corroborated in some measure by actual

facts or  by other sources may be enough.  See id. at 329-31;
                                                              

United States v. Walker, 7 F.3d 26, 31  (2d Cir. 1993), cert.
                                                                         

denied, 114 S. Ct. 1201 (1994); United States v. McBride, 801
                                                                    

F.2d  1045, 1047-48 (8th  Cir. 1986), cert.  denied, 479 U.S.
                                                               

1100 (1987).

      Here, plaintiffs  argue that  the hearsay tip  received

by Detective Herring from his confidential informant, who had

heard it from an anonymous source, did not provide reasonable

suspicion, and that no reasonable official could have thought

differently.   The difficulty  with this argument  is that it

seeks to  defeat Clemons' claim  of immunity by  charging him

with  notice of facts that were not  actually known to him at

the time he made the decision to authorize the searches.

      The issue  on appeal  is whether  Clemons, and not  any

other  defendant  or  potential  defendant,  is  entitled  to

qualified  immunity.    The  inquiry must  focus  on  whether

Clemons  himself acted as a reasonable  official might.  That

determination  can  only be  made  "in  light  of  . . .  the

                             -16-
                                          16


information  [that  Clemons] possessed  at  the  time of  his

allegedly  unlawful conduct."   McBride  v. Taylor,  924 F.2d
                                                              

386, 389 (1st Cir. 1991); see also Anderson, 483 U.S. at 641;
                                                       

Prokey, 942  F.2d at  72.   Here,  there is  no dispute  that
                  

Clemons was  told by  his staff  and genuinely  believed that

Detective   Herring   had   learned  from   two   unconnected
                                                                         

confidential  informants that  Sharon  Wood's  visitors  were
                                    

smuggling drugs into the MCC in her granddaughter's booties.

      The plaintiffs  respond by  arguing that  Clemons acted

unreasonably  in accepting  Baker's  report as  true  without

conducting further  investigation.   We disagree.   While the

mistake  that led  to  Clemons being  misinformed  as to  the

nature of  the tip is not  to be condoned, we  cannot say, on

the totality of the circumstances  of this case, that Clemons

was unjustified  in accepting Officer Baker's  report at face

value.     Over  the   course  of  their   five-year  working

relationship, Clemons had grown to trust Baker to provide him

with  reliable information on investigatory matters.  Indeed,

Clemons  testified at  his deposition  that Baker  had always

provided  him  with  accurate information  and,  in  Clemons'

estimation, was "not one to make assumptions."  Similarly, in

Clemons' experience, information provided by Peter Herring to

the  MCC in  a large  number of  previous investigations  had

always turned out to  be accurate, and Clemons had  thus come

to consider Herring  himself to be a reliable and trustworthy

                             -17-
                                          17


source of information.   The  plaintiffs do  not allege  that

Clemons' general trust in Baker or in Herring was unjustified

or misplaced.

      It  is  only  fair  to  conclude  that  Clemons  had  a

reasonable  basis  to  believe  that  the  tip  about  Wood's

visitors -- as reported in Baker's memorandum --  had already

been tested for  reliability by both  Herring and Baker,  and

that there was no need for Clemons himself to conduct further

investigation  into  the  tip's  sources.   And,  if  Clemons

reasonably believed that the  tip, as reported, was reliable,

it  would  be inconsistent  with  the  basic  purpose of  the

qualified immunity defense --  i.e., to protect an official's
                                               

reasonable  judgments  from post  hoc  attack  -- to  deprive
                                                 

Clemons  of that defense merely because the nature of the tip

was, through  no fault of  his own,  erroneously reported  to

him.6  See  United States  v. Hensley, 469  U.S. 221,  232-33
                                                 

(1985)  (explaining   that  police  officers   who  make   an

investigatory stop  based  on  defensible  reliance  upon  an

erroneous police  bulletin may assert immunity  in civil suit

                    
                                

6.  There  is  no  suggestion   here  that  prison  officials
deliberately  or  systematically  misreported information  to
Clemons in order to obtain authorizations for strip searches.
Cf. Arizona v. Evans, 115 S. Ct. 1185, 1194 (1995) (O'Connor,
                                
J., concurring)  (observing that  even though the  good faith
exception  to the  exclusionary rule  applied where  a police
officer reasonably relied on  an erroneous computer record in
making a  false arrest, the same might  not be true where the
computer records relied upon  were known to be systematically
inaccurate).

                             -18-
                                          18


for  Fourth Amendment  violations); cf.  United States  v. De
                                                                         

Leon-Reyna, 930 F.2d  396, 399-400 (5th Cir. 1991)  (en banc)
                      

(border officer's reliance  on erroneous information provided

by  dispatcher  may  be  objectively  reasonable  for  Fourth

Amendment  purposes,  even  if  error was  partly  result  of

officer's own negligence).

      Once we accept that Clemons  defensibly relied upon the

contents  of  Baker's  report   in  making  the  decision  to

authorize the  strip searches,  this case  can  no longer  be

viewed (as plaintiffs would characterize it)  as one in which

an  official knowingly relied on an uncorroborated, anonymous

tip in carrying  out a search.  Cf. Daugherty  II, 33 F.3d at
                                                             

557  (rejecting qualified  immunity  defense  where  official

authorized strip  search of  prison visitor based  on letters

from "an  anonymous inmate  and . . . a  non-existent person"

and  an uncorroborated assertion  of a corrections officer7).

Instead, Clemons' authorization of  the searches was based on

a  tip he believed had been received from two unconnected yet

                    
                                

7.  In Daugherty  II, the defendant warden  conceded that the
                                
letters did  not form  a basis for  reasonable suspicion  but
contended that he was  entitled to rely on the  statements of
the corrections officer.  See id. at 557.  However, there was
                                             
no indication in that case that the warden had any reason  to
be unaware  of the information's unreliability  or to believe
that  the officer's  statements  (unlike Detective  Herring's
statements  here)  were  independently trustworthy.    In any
event, in rejecting the  warden's argument, the Sixth Circuit
stated,  "we do not impose  a duty on  wardens to investigate
the  reliability of all their officers' conclusions."  Id. at
                                                                      
557.

                             -19-
                                          19


mutually  corroborating confidential informants, both of whom

Clemons believed had made the highly specific allegation that

visitors  were hiding  drugs in  an infant's  booties for  an

inmate who  was serving time for a  drug conviction.  Nor can

we ignore  that Clemons' assessment of  the tip's reliability

was  favorably affected  by  his awareness  that it  had been

delivered to the MCC  by Peter Herring,  who, to the best  of

Clemons'   knowledge,  had   never  before   provided  prison

officials with information that had turned out to be false.

      Viewed  in  this light,  it  is difficult  to  say that

Clemons'  decision to authorize the searches was "objectively

legally unreasonable."   Anderson, 483 U.S. at  641.  Mindful
                                             

that "'if there  is a  legitimate question as  to whether  an

official's  conduct  constitutes a  constitutional violation,

the official is entitled  to qualified immunity,'" Singer, 49
                                                                     

F.3d at  845 (internal quotations omitted),  we conclude that

Clemons  is entitled to the  protection of that  defense.  An

objectively  reasonable official,  presented with all  of the

information  in Clemons'  possession and  similarly situated,

could  very well have believed that there existed a basis for

reasonable suspicion that Wood's  visitors would be smuggling

drugs into the MCC.8  Cf.  United States v. Wangler, 987 F.2d
                                                               

                    
                                

8.  Plaintiffs do  not raise,  and we therefore  deem waived,
any  argument that  the  tip's focus  on  the baby's  booties
precluded  the existence  of  individualized suspicion  as to
Katrina Thamert, Phillip Thamert, or Michelle Hatch.

                             -20-
                                          20


228,  230  (5th  Cir.  1993) (information  provided  by  "two

unconnected informants" contributed  to reasonable  suspicion

that suspect was carrying drugs).9

                              IV

      We  conclude  that  defendant  Clemons  is entitled  to

qualified immunity  from personal liability  for his  alleged

violation  of the plaintiffs' constitutional right, as prison

visitors,  not to  be strip  searched except  upon reasonable

suspicion that  they were  carrying contraband.   Clemons, in

defensible reliance on written information provided to him by

a  trusted prison  official, believed  in good  faith  that a

police  detective  with  a  proven track  record  of  feeding

invariably accurate  investigative information to  the prison

had  learned that two unconnected confidential informants had
                                 

separately reported  the same highly specific allegation that

the visitors  of a named  female inmate were  smuggling drugs

                    
                                

9.  Of  course,  to  say  such  a  belief  would  have   been
reasonable  is not to imply  that it would  have been legally
correct.  Lowinger  v. Broderick,  50 F.3d 61,  65 (1st  Cir.
                                            
1995)  ("[E]ven  erroneous  decisions  by  officials  may  be
entitled to qualified immunity."); Rivera v. Murphy, 979 F.2d
                                                               
259, 263  (1st Cir. 1992) ("'The  qualified immunity standard
gives ample room for mistaken judgments by protecting all but
the plainly  incompetent or  those who knowingly  violate the
law.'"  (quoting Hunter v.  Bryant, 502 U.S.  224, 229 (1991)
                                              
(per   curiam)   (internal  quotation   marks   and  citation
omitted)).  Although we  sustain the defendant's assertion of
the qualified immunity  defense, we express no  opinion as to
the legal "correctness" of  any belief that Clemons  may have
had  (based  on the  facts as  he  knew them)  concerning the
existence of  reasonable suspicion that  the plaintiffs  were
engaged in illegal activity.

                             -21-
                                          21


into the prison  in her infant  granddaughter's booties.   On

the record  before us, an objectively  reasonable official in

possession  of  this   information  and  otherwise  similarly

situated to  Clemons could have decided  there was reasonable

suspicion  to believe  that Sharon  Wood's visitors  would be

smuggling  drugs into the MCC.   The district court therefore

properly  granted  summary  judgment in  favor  of  defendant

Clemons.

      Affirmed.  No costs.
                                      

                             -22-
                                          22