Cate v. Reynolds

138 F.R.D. 95, 1991 U.S. Dist. LEXIS 16759, 1991 WL 127184
CourtDistrict Court, E.D. Tennessee
DecidedJuly 8, 1991
DocketNo. Civ. 3-89-664
StatusPublished

This text of 138 F.R.D. 95 (Cate v. Reynolds) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cate v. Reynolds, 138 F.R.D. 95, 1991 U.S. Dist. LEXIS 16759, 1991 WL 127184 (E.D. Tenn. 1991).

Opinion

MEMORANDUM AND ORDER

ROBERT P. MURRIAN, United States Magistrate Judge.

All pending motions in this case were referred to the undersigned on June 10, 1991, pursuant to Rule 72, Fed.R.Civ.P., and the Rules of this Court [Doc. 84].

Plaintiffs, Billy Swain Cate and his wife, Anna Pauline Cate, bring this civil rights action pursuant to 42 U.S.C. § 1983 challenging the administration of a prison policy regarding the strip searching of visitors to the Morgan County Regional Correctional Facility (“MCRCF”). Mrs. Cate alleges that twice in July, 1989 she was forced to undergo a visual body cavity strip search1 in order to visit her prisoner husband despite the absence of any reason to suspect she was in possession of contraband. She alleges that she was told that if she refused the search, she would not only be denied visitation with her husband but also she would be arrested by officers of the Morgan County Sheriff's Department and subjected to a search. She also claims that her visitation rights were suspended in January, 1990 in retaliation for filing this lawsuit; that she was entitled to, but did not receive, a due process hearing in connection therewith; and that she and her husband have been subjected to a pattern of harassment by defendants. See Pretrial Order as Amended by Amended Complaint [Docs. 51 and_].

The plaintiffs moved to compel discovery seeking an order requiring defendants David Mills, Charlie Jones, and Steve Coffey to reveal the identities of confidential informants and the substance of the information they allegedly provided which defendants claim to have supported the authorization to conduct visual body cavity searches of Mrs. Cate on July 22 and July 23, 1989 [Doc. 76], The defendants resist any revelation of the identities of these informants and resist providing information that would tend to compromise the confidentiality of the communications with them. They take the position that the lives of these confidential informants would be put in danger if their identities became known because the informants are all presently inmates in the care, custody, and control of the Tennessee Department of Correction. Affidavit of defendant David Mills dated June 3, 1991 [Doc. 80].

A hearing was held on this motion on June 5, 1991. For the reasons stated in a Memorandum and Order filed June 7, 1991, the motion was taken under advisement pending receipt of the affidavits of Associate Warden for Security Charlie Jones and Warden David Mills [Doe. 83].

Those affidavits were served on or about June 17, 1991, and were filed June 19, 1991 [Doc. 87].

I have reviewed these affidavits and I have reviewed plaintiffs’ response (with attachments) to these affidavits [Doc. 88].

The plaintiffs contend that the Court should reject the affidavits of Messrs. Mills and Jones as a sufficient basis for establishing probable cause or reasonable suspicion or, alternatively, to conduct a further [97]*97hearing into the reliability of and credibility of the information and informants, including disclosure of the informants’ identities and production of documents.

I will decline to go beyond what is before me in connection with the instant motion, i.e., plaintiffs’ motion for an order compelling Messrs. Mills, Jones, and Coffey to answer certain questions propounded to them during depositions and to answer certain interrogatories.

There is no basis for striking the affidavits of Messrs. Mills and Jones which were filed at the direction of the undersigned. Moreover, there is no motion for relief before the court which calls for a definitive answer regarding whether or not the searches of Mrs. Cate’s person were undertaken with or without reasonable suspicion and/or probable cause. The pending motions for summary judgment filed by defendants Armes, Roberts, Coffey, Stowers and Trail do not seek resolution of the probable cause/reasonable suspicion issue [Docs. 60, 61, 62, 63, 64].

I discussed the evidentiary rule known as the informer’s privilege in my Memorandum and Order filed June 7, 1991, and will not repeat that discussion here [Doc. 83]; also, see generally Anno., 8 ALR Fed. 6.

At his deposition taken April 30, 1991, Warden Jones said that he had received information “from a couple of different sources” that Mrs. Cate would be bringing contraband to MCRCF while visiting her husband on the weekend of July 22-23, 1989. Deposition at 29 [Doc. 88]. He was hazy about the details and said that he did not remember the extent of the information. He refused to reveal the identities of his two sources, stating that “men’s lives are at stake.” Id. at 30. Warden Mills’ deposition was taken on the same day and excerpts from it are attached to plaintiffs’ brief in response [Doc. 88].

Plaintiffs cite Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for the proposition that the affidavits of Messrs. Mills and Jones are not adequate grounds to support a probable eause/rea-sonable finding [Doc. 88]. The Aguilar/Spinelli “test” is no longer applicable, however. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court changed the law of search and seizure, abandoning tests it had set forth earlier, and held that probable cause determinations, including those based upon an informant’s tip, should be analyzed under the “totality of the circumstances.” 462 U.S. at 238, 103 S.Ct. at 2332.

A recent decision from the United States Court of Appeals for the Sixth Circuit discusses the differences between reasonable suspicion and probable cause. The opinion concludes that “although ‘reasonable suspicion is a less demanding standard than probable cause,’ both require the ‘totality of circumstances’ inquiry____” Williams v. Ellington, 936 F.2d 881, 888 (6th Cir. 1991), quoting from Alabama v. White, — U.S.-, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

In the context of criminal search and seizure law, a defendant must make a substantial preliminary showing that a false statement was made knowingly and intentionally, or with reckless disregard for the truth, in the affidavit supporting a search warrant in order to justify an evidentiary hearing regarding suppression of the evidence. Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanies by an offer of proof.

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Related

Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
Alabama v. White
496 U.S. 325 (Supreme Court, 1990)
Ruth Blackburn v. Linwood Snow
771 F.2d 556 (First Circuit, 1985)
Ronnie Holman v. Steve Cayce
873 F.2d 944 (Sixth Circuit, 1989)
United States v. Robert B. Cummins
912 F.2d 98 (Sixth Circuit, 1990)
United States v. Moreno
588 F.2d 490 (Fifth Circuit, 1979)
Hensley v. Wilson
850 F.2d 269 (Sixth Circuit, 1988)

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Bluebook (online)
138 F.R.D. 95, 1991 U.S. Dist. LEXIS 16759, 1991 WL 127184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cate-v-reynolds-tned-1991.