Deserly v. Department of Corrections

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-228_(02-15-00)_Opinion.htm

No. 99-228

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 42

298 Mont. 328

995 P. 2d 972

AMY DESERLY,

Plaintiff and Appellant,

v.

DEPARTMENT OF CORRECTIONS,

STATE OF MONTANA,

Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, Montana

For Respondent:

Matthew A. Robertson, Special Assistant Attorney General, Department of Corrections, Helena,
Montana

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Submitted on Briefs: September 2, 1999

Decided: February 15, 2000

Filed;

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1.Amy Deserly (Deserly) appeals from the District Court's order dated March 5, 1999, on
cross-motions for summary judgment. The court granted the Department of
Corrections' (DOC) motion and denied Deserly's. We affirm.

Background

¶2.In June 1996, Deserly filed suit in Lewis and Clark County against the DOC requesting
unspecified damages for emotional distress allegedly caused when DOC's Montana State
Prison (MSP) officers required her to submit to a strip search when she visited her
husband, an inmate at the MSP, in January 1994. Deserly complained that her privacy was
invaded and that she was humiliated and "visually raped" as a result of the search. DOC
answered, denying Deserly's allegations.

¶3.A trial date was set for September 14, 1998. However, at the close of discovery, the
parties agreed to vacate the trial date as there were no material disputed facts to submit to
a jury. The parties further agreed to submit cross-motions for summary judgement. In due
course, following oral argument, the District Court issued its decision in favor of DOC and
against Deserly. Judge Jeffery Sherlock concluded that Deserly's privacy was not invaded
by the strip search which was reasonably justified. Deserly timely appealed.

¶4.The material, undisputed facts underlying Deserly's cause of action, based upon the
pleadings and fruits of discovery, include the following. Deserly traveled to the MSP on or
about January 19, 1994, to visit her husband, who was then an inmate. She had visited her
husband at MSP many times prior to this occasion. After completing the necessary
paperwork for her visit, Deserly attempted to pass through the metal detector. However,

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she set off the alarm indicating the presence of metal on her person. As she had in the past,
Deserly was wearing an underwire bra, and, accordingly, informed the MSP officer on
duty that the bra was triggering the metal detector. While MSP's inmate visiting policy
required that female visitors wear a sport, regular, or strapless bra at all times, the policy
did not, at that time, prohibit the wearing of an underwire bra.

¶5.The officer instructed Deserly to pass through the detector again, but this attempt,
likewise, failed. Deserly then attempted to pass through the detector sideways but was
informed that she could not pass through the metal detector in this manner. A final attempt
by Deserly also failed.

¶6.At this point the MSP officer informed Deserly that she could consent to a strip search.
She was also informed that if she refused the strip search, she would be denied contact
visitation but would be allowed non-contact visitation.

¶7.Deserly initially refused to sign the consent form. On meeting with the shift
commander she reconsidered, signed the form, and consented to the search. As a result,
Deserly was accompanied by two female corrections officers to the women's restroom
where Deserly removed her clothing. Each article of clothing was examined for
contraband. Neither officer made physical contact with Deserly or conducted any body
cavity search. The officers found that Deserly was wearing an underwire bra and that she
was not concealing any contraband. Therefore, Deserly was allowed to make her visit
wearing the bra.

¶8.On or about August 30, 1995, Deserly again visited the prison. She wore an underwire
bra and, once more, she could not pass the metal detector. Deserly was advised, as she was
previously, as to the necessity for a strip search and of the consequences of refusing. After
initially declining to consent to a strip search, she offered to remove her bra and then go
through the detector. Deserly was advised that removing her bra would be a partial strip
search and that her consent would be required. Accordingly, Deserly signed the consent
form and, in the presence of two female corrections officers in the restroom, removed her
bra. Deserly was then taken back to the metal detector. After successfully passing through,
she was allowed to return to the women's restroom, put on her bra, and then visit her
husband.

¶9.Finally, the record reveals that Deserly was, for two and one-half years, a jailer for the
Minnehaha County Jail in Sioux Falls, South Dakota. As a result of her training, she knew

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what a strip search entailed and how to conduct one. Furthermore, Deserly read and was
aware of the MSP Inmate Visiting Policy which, among other things, states that "Where a
reasonable suspicion exists that the visitor may be carrying contraband, the officers may
perform a strip search with the written authorization of the lieutenant or higher authority.
The visitor will also sign a consent form prior to the search being conducted."

¶10.On these facts, the issue, then, is whether the District Court erred, as a matter of law,
in granting summary judgement to DOC and in denying summary judgment to Deserly.

Discussion

I.

¶11.As already noted, the parties agree that there are no material facts in dispute and that
this matter should be decided on the basis of cross-motions for summary judgment. Under
these circumstances our standard of review is the same as that articulated in Ross v. City of
Great Falls, 1998 MT 276, 291 Mont. 377, 967 P.2d 1103:

"Summary judgment is proper when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law." Ash Grove Cement Co. v.
Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88; Rule 56(c), M.R.Civ.P.
We review a district court's grant of summary judgment de novo, applying the same Rule
56(c), M.R.Civ.P., criteria as the district court. Ash Grove Cement Co., 283 Mont. at 491,
943 P.2d at 88 (citation omitted).

In the usual summary judgment case, we first determine whether "the moving party met its
burden of establishing both the absence of genuine issues of material fact and entitlement
to judgment as a matter of law." Ash Grove Cement Co., 283 Mont. at 491, 943 P.2d at 88
(citation omitted). In the present case, however, the parties agree on the material facts. As
a result, the question before us is whether the District Court correctly concluded that the
[movant] was entitled to judgment as a matter of law. We review a district court's
conclusions of law to determine whether the interpretation of the law is correct. Ash Grove
Cement Co., 283 Mont. at 491-92, 943 P.2d at 89 (citation omitted).

Ross, ¶¶ 9-10.

II.

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¶12.Deserly concedes that, because the State has an interest in the security of its penal
institutions, searches of inmate visitors are justifiable only on satisfying a reasonable
suspicion standard. She maintains, however, that the District Court erred in concluding
that, without the use of a strip search, correctional officers would not have been able to
determine whether it was indeed Deserly's underwire bra, and not contraband, which
caused the metal detector to sound. Deserly contends that DOC failed to demonstrate and
the court failed to consider that DOC's concededly legitimate penalogical need to conduct
the search could not have been satisfied by more narrow means. Specifically, Deserly
argues that, as they did in August 1995, the corrections officers could have and should
have ordered Deserly to remove her underwire bra in the women's restroom without a strip
search and then allow her to attempt to pass through the metal detector.

¶13.DOC responds that its officers had a reasonable suspicion to request Deserly to submit
to a strip search. DOC points out that Deserly failed four times to successfully pass
through the detector and that one of these attempts was specifically aimed at defeating the
detector. While acknowledging her right of privacy, DOC argues that Deserly's
expectation of her ability to preserve that right inside the MSP was unreasonable given the
overriding interest of the MSP prison officials to protect the safety and security of the
institution and the employees, inmates, and visitors within its confines as well as
preventing the introduction of contraband into the institution by visitors.

¶14.Finally, DOC argues that Deserly voluntarily and knowingly waived her right of
privacy when she signed the consent to search form. Since this last argument was not the
basis for the trial court's decision, however, we decline to address it further. We decide,
rather, whether the District Court correctly determined the MSP officers had a "reasonable
suspicion" to request Deserly to participate in the strip search and whether the search, as
conducted, was reasonable under the circumstances.

III.

¶15.This Court has not previously had occasion to consider a case involving the
(1)
reasonableness of a personal search of an inmate visitor--specifically a strip search --
within the confines of a correctional facility. We have in numerous cases, however, stated
that Montanans enjoy a heightened right of privacy given this State's textual inclusion of
that right in its Constitution, Article II, Section 10, and that when a right of privacy is
specially implicated as part of a traditional search and seizure analysis, we must address
the issue pursuant to both Sections 10 and 11 of Article II, of Montana's Constitution. See

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State v. Sheetz (1997), 286 Mont. 41, 45- 47, 950 P.2d 722, 724-25 (citations omitted).
Article II, Section 10, specifically protects the right of individual privacy and Article II,
Section 11, provides protection against unreasonable searches and seizures of persons,
papers, homes, and effects.

¶16.Moreover, we have held that to determine the threshold question of whether there has
been an unlawful governmental intrusion into one's privacy in search and seizure
situations, we will look to the following factors: (1) whether the person has an actual
expectation of privacy; (2) whether society is willing to recognize that expectation as
objectively reasonable; and (3) the nature of the State's intrusion. State v. Bassett, 1999
MT 109, ¶ 24, 294 Mont. 327, ¶ 24, 982 P.2d 410, ¶ 24 (citations omitted).

¶17.Finally, we have recognized a common law cause of action for invasion of privacy
where the plaintiff is able to demonstrate a ". . . wrongful intrusion into one's private
activities in such a manner as to outrage or cause mental suffering, shame or humiliation
to a person of ordinary sensibilities." See Sistok v. Northwestern Tel. Sys. Inc., (1980), 189
Mont. 82, 92, 615 P.2d 176, 182; Rucinsky v. Hentchel (1994), 266 Mont. 502, 505, 881
P.2d 616, 618.

IV.

¶18.We will return to these principles of Montana law. First, however, in the absence of
Montana case law specifically dealing with the inmate visitor searches, we will briefly
review the law pertaining to these types of searches as articulated by the federal courts--
keeping in mind our long-standing rule not to "march lock-step" with these courts where
the broader protections of the Montana Constitution may be implicated. See State v.
Johnson (1986), 221 Mont. 503, 512, 719 P.2d 1248, 1254; Sheetz, 286 Mont. at 47, 950
P.2d at 725.

¶19.We start by acknowledging that "[o]ne of the clearest forms of degradation in Western
Society is to strip a person of his clothes." Hayes v. Marriott (10th Cir. 1995), 70 F.3d
1144, 1146 (quoting Canedy v. Boardman (7th Cir. 1994), 16 F.3d 183, 185). Moreover,
"the strip search of an individual by government officials, 'regardless how professionally
and courteously conducted, is an embarrassing and humiliating experience.'" Romo v.
Champion (10th Cir. 1995), 46 F.3d 1013, 1019, cert. denied, (1995), 516 U.S. 947, 116 S.
Ct. 387, 133 L.Ed.2d 309, quoting Boren v. Deland (10th Cir. 1992), 958 F.2d 987, 988
n.1; Hunter v. Auger (8th Cir. 1982), 672 F.2d 668, 674. Finally, prison visitors retain a

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Fourth Amendment right to be free from unreasonable searches and seizures. Cochrane v.
Quattrocchi (1st Cir. 1991), 949 F.2d 11, 12-13 (citations omitted).

¶20.On the other hand, we also recognize that a prisoner does not have a due process right
to unfettered visitation. Kentucky Dep't of Corrections v. Thompson (1989), 490 U.S. 454,
460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506. Likewise, a citizen does not have a right to
unfettered visitation of a prisoner that rises to a constitutional dimension. See Spear v.
Sowders (6th Cir. 1995), 71 F.3d 626, 630. Moreover, "[i]n seeking entry into such a
controlled environment, the visitor simultaneously acknowledges a lesser expectation of
privacy," because of his insistence on access. Spear, 71 F.3d at 632 (citing Blackburn, 771
F.2d at 565).

¶21.Indeed, reasonable inmate visitor searches are a necessary and legitimate component
of protecting employees, visitors, and inmates who, respectively, work in, visit from time
to time, and reside in correctional facilities. As courts in numerous cases have observed,
the purpose of a prison visitor search is to further prison security interests by preventing
contraband from entering the prison. Romo, 46 F.3d at 1015-16; Hunter, 672 F.2d at 674;
Newman v. Alabama (5th Cir. 1977), 559 F.2d 283, 291. See also Bell v. Wolfish (1979),
441 U.S. 520, 545-48, 99 S.Ct. 1861, 1877-79, 60 L.Ed.2d 447; Pell v. Procunier (1974),
417 U.S. 817, 823, 94 S.Ct. 2800, 2804-05, 41 L.Ed.2d 495 ("[c]entral to all other
corrections goals is the institutional consideration of internal security").

¶22.Thus, because prisons are dangerous places for employees, visitors, and inmates, the
basic constitutional issue becomes one of balancing the legitimate governmental interest in
and need for searching inmate and prison visitors against the intrusions into personal
rights and residual privacy interests that such searches entail. Spear, 71 F.3d at 630;
Hunter, 672 F.2d at 673-74; See also Delaware v. Prouse (1979), 440 U.S. 648, 654, 99 S.
Ct. 1391, 1396, 59 L.Ed.2d 660; Bell, 441 U.S. at 559, 99 S.Ct. at 1884; Terry v. Ohio
(1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889. The U.S. Supreme Court, at
least, has consistently struck this balance in favor of institutional security. See, e.g.,
Hudson v. Palmer (1984), 468 U.S. 517, 527, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393; Bell,
441 U.S. at 548, 99 S.Ct. at 1879, accord.

¶23.While prison visitors can be subjected to some searches, such as pat-downs or metal
detector sweeps, merely as a condition of visitation, absent any suspicion, more intrusive
searches, such as strip searches, require more. Spear, 71 F.3d at 630. The federal courts
have uniformly held that a warrantless strip search of a prison visitor is constitutionally

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permissible as an exception to the warrant requirement of the Fourth Amendment only if
the search is supported by "reasonable suspicion." See Romo, 46 F.3d at 1020; Boren, 958
F.2d at 988; Varrone v. Bilotti (2d Cir. 1997), 123 F.3d 75, 79; Wood v. Clemons (1st Cir.
1996), 89 F.3d 922, 929; Daugherty v. Campbell (6th Cir. 1991), 935 F.2d 780, 784, cert.
denied, (1992) 502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110; Spear, 71 F.3d at 632;
Thorne v. Jones (5th Cir. 1985), 765 F.2d 1270, 1276-77, cert. denied, (1986), 475 U.S.
1016, 106 S.Ct. 1198-99, 89 L.Ed.2d 313; Hunter, 672 F.2d at 674-75.

¶24.Reasonable suspicion requires prison authorities to point to specific, objective facts
and rational inferences that they are entitled to draw from those facts in light of their
experience. Moreover, their suspicions must be individualized, i.e., specifically directed to
the person who is targeted for the strip search. Boren, 958 F.2d at 988; Hunter, 672 F.2d at
674-75. A reasonable suspicion of wrongdoing is something stronger than a mere hunch,
but something weaker than probable cause. Wood, 89 F.3d at 929. In evaluating the
totality of circumstances underlying the officer's determination of reasonable suspicion,
the court should consider the quantity, or context, and quality, or degree, of reliability of
the information available to the officer. Alabama v. White (1990), 496 U.S. 325, 330, 110
S.Ct. 2412, 2416, 110 L.Ed.2d 301.

V.

¶25.We now consider these principles within the context of Montana law and the facts of
this case. First, does a prison inmate visitor have an actual expectation of personal privacy
that society is willing to recognize as being objectively reasonable, i.e., the first and
second prongs of the Bassett test? Bassett, ¶ 24.

¶26.We recognized in Sheetz, that:

[E]ven in Montana, when a person leaves the privacy of his home and exposes himself and
his effects to the public and its independent powers of perception, it is clear that he cannot
expect to preserve the same degree of privacy for himself or his affairs as he could expect
at home.

Sheetz, 286 Mont. at 49, 950 P.2d at 726. This truism is all the more germane to the situation where a
person seeks to enter the dangerous and controlled environment of a correctional facility--a place where
the government has a necessary and legitimate need to protect the security of those working, visiting,
and residing in the institution from the introduction of contraband. We agree with the federal authorities
cited above that a visitor demanding access to correctional facility "simultaneously acknowledges a

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lesser expectation of privacy." Spear, 71 F.3d at 632; Blackburn, 771 F.2d at 565. Moreover, we agree
that such persons can be subjected to pat-downs or metal detector sweeps merely as a condition of
visitation and absent any suspicion of criminal activity. Spear, 71 F.3d at 630. In the context under
consideration here, these sorts of searches are not sufficiently intrusive or personally invasive as to
require further justification. See Sheetz, 286 Mont. at 50, 950 P.2d at 728.

¶27.That, however, is not the case where a strip search is demanded. And, that requires
that we look to the third prong of the Bassett test--the nature of the State's intrusion into
the prison visitor's actual and objectively reasonable expectation of residual personal
privacy. Bassett, ¶ 24. As we stated in Sheetz, we must consider "whether the State's
method of investigation is so personally invasive that we recognize the intrusion as a
search that requires further justification, such as a warrant or other special circumstances."
Sheetz, 266 Mont. at 50, 950 P.2d at 728 (citing State v. Stubbs (1995), 270 Mont. 364,
892 P.2d 547; State v. Ulrich (1980), 187 Mont. 347, 609 P.2d 1218).

¶28.As we have already noted, requiring a person to take off his or her clothing in front of
another person or persons, no matter how professionally and courteously conducted, is a
degrading, embarrassing, and humiliating experience, and an invasion of personal privacy.
Hayes, 70 F.3d at 1146; Romo 46 F.3d at 1019; Hunter, 672 F.2d at 674. Where a prison
inmate visitor is requested to consent to a strip search as a condition of admittance to the
facility, the visitor retains an actual expectation of personal privacy that society is willing
to recognize as being objectively reasonable even under the federal constitution. Spear, 71
F.3d at 630. Clearly, Article II, Sections 10 and 11 of Montana's Constitution, which
recognize even broader rights of individual privacy, support that same conclusion as well.

¶29.Accordingly, like the federal courts cited above, we determine that a warrantless strip
search of a prison visitor is constitutionally permissible as an exception to the warrant
requirement of Article II, Section 11, and is a permissible intrusion into the visitor's
residual right of individual privacy under Article II, Section 10, only if the search is
supported by "reasonable suspicion."

¶30.The definition of reasonable suspicion utilized by the federal courts is consistent with
Montana law. Most often referred to in this State as "particularized suspicion" and
sometimes as "reasonable grounds," both the legislature and this Court have adopted a test
nearly identical to the federal reasonable suspicion standard in cases involving
investigatory stops and Terry-type warrantless searches. See, e.g., Hulse v. State, 1998 MT
108, ¶ 12, 289 Mont. 1, ¶ 12, 961 P.2d 75, ¶ 12 (particularized suspicion is a question of
fact dependent on the totality of circumstances and requires, first, that the State establish

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objective data from which an experienced officer can make certain inferences; and,
second, a resulting suspicion that an individual is or has been engaged in wrongdoing or
was a witness to criminal activity) (citations omitted); See also State v. Gopher (1981),
193 Mont. 189, 194, 631 P.2d 293, 296 (adopting this two-part test from United States v.
Cortez (1981), 449 U.S. 441, 101 S.Ct. 690, 66 L.Ed.2d 621); State v. Sharp (1985), 217
Mont. 40, 45, 702 P.2d 959, 962; State v. Anderson (1993), 258 Mont. 510, 514, 853 P.2d
1245, 1248; State v. Reynolds (1995), 272 Mont. 46, 49-50, 899 P.2d 540, 542; State v.
Lafferty, 1998 MT 247, ¶¶ 9-10, 291 Mont. 157, ¶¶ 9-10, 967 P.2d 363, ¶¶ 9- 10, accord;
and §§ 46-5-401, MCA, and 61-8-403(4)(a)(i). MCA.

¶31.Moreover, in judging the trial court's evaluation of the totality of circumstances, we
assess the quantity and quality of the information known to the officer to determine the
sufficiency of the objective data and the reasonableness of the officer's suspicion of
criminal activity. See, e.g., State v. Pratt (1997), 286 Mont. 156, 161-62, 951 P.2d 37, 40-
41 (stating that the parties appropriately focus their arguments on the nature of the
information provided by the citizen informant and the role it played in the officer's
determination of particularized suspicion); State v. Collard (1997), 286 Mont. 185, 192-
93, 951 P.2d 56, 61 (discussing the quantity and quality of information available to the
officer).

¶32.Accordingly, we conclude that a prison visitor can be requested to participate in a strip
search where the prison authorities have specific, objective facts and rational inferences
that they are entitled to draw from those facts in light of their experience that the person
targeted for the strip search is engaged in wrongdoing.

¶33.Moreover, in judging the trial court's evaluation of the totality of circumstances
surrounding the prison authorities' determination of "reasonable suspicion" and the
underlying sufficiency of their objective data and the reasonableness of their suspicion of
criminal activity, we will assess the quantity and quality of the information known to the
officers.

VI.

¶34.In the case at bar, the trial court ruled that the State had demonstrated that the prison
authorities had a legitimate reasonable suspicion that Deserly might be engaged in
wrongdoing when she failed to successfully pass through the metal detector during her
January 1994 visit to the MSP. We agree.

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¶35.On the day of her visit, Deserly attempted, unsuccessfully, to pass through the metal
detector--four times, in fact. On one of these she tried to pass through sideways in an
attempt to defeat the detector. Each time (with the apparent exception of the sideways
attempt) Deserly set off the alarm, indicating the presence of metal on her person. While,
as she points out, Deserly informed the MSP officer operating the metal detector that her
underwire bra triggered the alarm, it can hardly be argued that the officer was required to
simply accept as true this explanation at face value. In the first place, from the officer's
perspective, it was just as likely that Deserly's explanation was not true and that she was
concealing metal contraband on her person. In the second place, even if the officer were to
assume that Deserly's underwire bra did activate the metal detector, that fact, as the trial
court found, did not obviate the possibility that the bra was the only source of metal on
Deserly's person. Finally, even though Deserly testified that on some prior occasions her
bra triggered the metal detector while on other occasions it did not, that was no guarantee
that the next time she visited the prison she could not be concealing contraband instead of,
or in addition to, wearing the bra.

¶36.Deserly's argument that the bra itself was not contraband merely belies the fact that,
absent her explanation--which the metal detector operator was not required to accept in
any event--the MSP officer did not know what metal object was triggering the metal
detector.

¶37.We agree with the trial court that, based upon the MSP officer's training and
experience and the specific, objective facts described above, the officer was entitled to a
rational inference that Deserly was concealing contraband on her person and was,
therefore, engaged in wrongdoing. In short, we conclude that the District Court correctly
determined that the totality of circumstances created a "reasonable suspicion" justifying
the officer's demand that Deserly participate in a more invasive search of her person.

VII.

¶38.Nonetheless, Deserly argues that, even though the MSP officers may have had a
legitimate penalogical need to conduct the search in January 1994, she should not have
been subjected to a strip search because there was a much narrower or less intrusive means
available to the prison authorities to determine whether her failure to successfully
negotiate the metal detector resulted from concealment of contraband. Deserly states that a
narrower means requirement would have allowed her to remove her underwire bra in the
women's restroom and then to see if she could pass through the metal detector, as occurred

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during the August 1995 visit. She argues that the District Court failed to consider this
argument and that, as a result, the court should be reversed and summary judgment should
be entered in her favor. We disagree.

¶39.Primarily, Deserly relies on Thorne and Hunter for her "narrowest means" argument.
Both of these cases involved strip searches of prison inmate visitors. Thorne, 765 F.2d at
1271; Hunter, 672 F.2d at 670. In Thorne, the court cited to its decision in United States v.
Lilly (5th Cir. 1978), 576 F.2d 1240, a case dealing with a body cavity search of a prison
inmate, and quoted from Lilly its statement that:

In the prison context, however, the government always must show that a legitimate
penalogical need necessitated the search, that the need could not have been satisfied by a
more narrow means, and that the search and any consequent seizure were conducted in a
reasonable manner.

Thorne, 765 F.2d at 1276 (quoting Lilly, 576 F.2d at 1246). The court then went on to state that it
would be anomalous to accord inmates greater protection from unreasonable searches than inmate
visitors and that "[u]nder Lilly, inquiry must be made into the reasonableness of a particular inmate
search; the reasonableness of a particular visitor search must be determined in the same manner."
Thorne, 765 F.2d at 1276 (emphases added) ( citations omitted).

¶40.Thorne also cited to Hunter for the rule that "[t]o justify the strip search of a particular
visitor under the reasonable suspicion standard, prison officials must point to specific
objective facts and rational inferences that they are entitled to draw from those facts."
Thorne, 765 F.2d at 1276 (citing Hunter, 672 F.2d at 674). Hunter did not refer to a more
narrow means requirement.

¶41.Thorne is not directly on point, however. In Thorne the issue was not whether a strip
search, justified by reasonable suspicion at the outset, was then conducted in such a
fashion that the visitor was required to remove all his clothing as opposed to only those
items most likely to conceal contraband. Rather, in Thorne there was no objective data to
support a reasonable suspicion that Thorne was smuggling contraband. In other words, the
question was not how the strip search was conducted but, rather, whether the search should
have been conducted at all. Thorne, 765 F.2d at 1277.

¶42.In Thorne and Hunter the test relied on by both courts was whether, taking into
consideration the quantity and quality of the information available and the totality of
circumstances, the prison authorities had specific, objective facts and rational inferences

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that they were entitled to draw from those facts in light of their experience that the person
targeted for the strip search was engaged in wrongdoing.

¶43.Lilly, cited in Thorne, did allude to the necessity for reasonableness in "the means for
conducting [body cavity searches of inmates]," Lilly, 576 F.2d at 1246. However, the court
did not find the "means" utilized in that case violative of the Fourth Amendment, but,
rather, that one defendant, Gallegos, did not have notice that she would be subject to such
a search on returning from an out-of-facility, unsupervised educational program. Lilly, 576
F.2d at 1246. Accordingly, the cases Deserly cites for her narrowest means argument are
not directly on point.

¶44.Nevertheless, we agree with Deserly that, once a strip search of a prison visitor is
justified by reasonable suspicion, a reviewing court may still conduct a legitimate further
inquiry into how the search was actually performed. In fact, while not cited by either
Deserly or the State, we have adopted a "less intrusive means rule" in the context of
inventory search cases. See State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131; State v.
Sierra (1985), 214 Mont. 472, 692 P.2d 1273, (overruled on other ground by State v.
Pastos (1994), 269 Mont. 43, 57, 887 P.2d 199, 208); City of Helena v. Lamping (1986),
221 Mont. 370, 373, 719 P.2d 1245, 1248.

¶45.Notwithstanding, we conclude, that on the facts of the case at bar and applying the test
for inmate visitor searches that we have articulated above, the strip search of Deserly by
the MSP officers on January 19, 1994, was supported by reasonable suspicion and was
conducted in a manner that both took into account Deserly's residual privacy interest and,
yet, fulfilled DOC's legitimate penalogical need to insure that she was not carrying metal
contraband in some article of her clothing.

¶46.The fact that the August 1995 search was conducted in a more narrow manner than
was the January 1994 search does not, without more, support a conclusion that the 1994
search was, therefore, unreasonable. Each search must, necessarily, stand or fail on its own
merits. The ultimate question is not simply whether, based on a post-hoc evaluation, there
was some alternative means of conducting the search, but whether the prison authorities
acted reasonably and used the least intrusive means under the circumstances presented by
the search at issue. Even though the January 1994 search could have been conducted in the
same manner as was the August 1995 search, we are not persuaded that the January 1994
search was unreasonable for that reason alone.

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¶47.To the contrary, taking into consideration the quantity and quality of the information
available to the MSP officers and the totality of circumstances presented during Deserly's
four unsuccessful attempts to pass through the metal detector, we conclude that the search
was reasonable. The prison authorities had specific, objective facts and rational inferences
that they were entitled to draw from those facts in light of their experience that Deserly
was engaged in concealing metal contraband on her person. The January 19, 1994 strip
search performed on the basis of those facts and inferences was not unreasonable even
though the search conducted some eight months later was performed with less invasion of
Deserly's privacy.

¶48.We hold that the District Court did not err in granting summary judgment to DOC and
in denying summary judgment to Deserly.

¶49.Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

1. The First Circuit has described the various levels of nude searches of the person:

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 (1st Cir. 1985), 771 F.2d 556, 561 n.3 (citation omitted). We adopt these
definitional parameters to conclude that, here, Deserly was subject to the first level of nude search, i.e.,
a "strip search." Since this case involves only this type of search, we specifically do not address the
legal standards which might justify performing either of the remaining levels of nude searches.

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