Hunter v. Auger

672 F.2d 668, 69 A.L.R. Fed. 841
Court of Appeals for the Eighth Circuit·Decided March 11, 1982·No. No. 81-1354·Published·Cited by 115 cases

Opinion

HENLEY, Circuit Judge.

Appellants Beulah Hunter, Jane Honorable, and Sylvia Wiese, visitors to family members confined in Iowa penal institutions, brought an action against correctional officials and employees under 42 U.S.C. § 1983, seeking damages and declaratory and injunctive relief. They alleged, inter alia, violations of their fourth amendment right to be free from strip searches1 during visits at the institutions based on mere unfounded suspicion that they would attempt to smuggle drugs to their incarcerated relatives.2 The case was tried to the district court upon stipulated facts and accompanying exhibits. The court concluded that “neither the strip search policies nor their application to the plaintiffs in this case violated plaintiff's Fourth Amendment rights to be free from unreasonable searches.” Hunter v. Auger, No. 79-192-2, slip op. at 5 (S.D.Iowa Feb. 26, 1981). This appeal followed. We reverse the judgment of the district court and remand the case for further proceedings.

I. Facts

Appellant Honorable

On November 3, 1978 Jane Honorable, a resident of Des Moines, went to the Iowa Men’s Penitentiary at Fort Madison to visit her husband Roy,3 who was incarcerated for armed robbery. - She had visited him approximately once each week since October, 1976 without incident. When appellant arrived at the facility on November 3, she was given the option of submitting to a strip search or foregoing the visit with her husband. To see her husband, she acquiesced to the search, which was conducted according to the institution’s routine procedures and lasted approximately one-hálf hour. The body search revealed no drugs or other contraband.

On the same day, appellant met with prison officials to discuss the reasons for the search. She was informed that they had received an anonymous “kite” 4 from an inmate, advising in writing that Roy Honorable and several other inmates were trafficking in drugs. Prison officials attempted to confirm the inmate’s anonymous tip by contacting the Narcotics Division of the Iowa Department of Criminal Investigation [671] for a community background check on appellant and her husband.5 The record before us, however, indicates that officials were unable to obtain any corroborative evidence. We also note that the parties stipulated that neither appellant nor her husband has ever been convicted of a drug offense.

Appellant Wiese

In February, 1979 Sylvia Wiese, accompanied by her three year old son, went to visit her husband Michael, who was confined at the Augusta Unit of the Iowa State Penitentiary, a minimum security prison farm. As a result of an anonymous tip received from a source outside the facility that indicated she would attempt to smuggle drugs, appellant was required to undergo a strip search before being allowed a contact visit with her husband. Correctional officials admitted that she was searched on the basis of the anonymous tip and because of the open atmosphere at the Augusta Unit. No evidence was offered to show an attempt by prison officials to corroborate the information received. Like appellant Honorable, Wiese submitted to the search, which was also conducted in a routine manner. The search did not disclose any drugs or contraband of any sort.

Appellant Hunter

On March 17,1979 Beulah Hunter, a resident of Des Moines, Iowa, drove to the Iowa Men’s Reformatory at Anamosa to visit her son Kenneth A. Hunter, who was incarcerated in that facility for armed robbery. Hunter, a woman of about fifty-five years, was accompanied by her boyfriend William Perry; her son Robert Hunter; and her grandchildren Kenneth Oakley, Kenneth Hunter’s eleven year old son, and Trene Hunter, the inmate’s ten year old niece. During the seven years that Kenneth Hunter had been incarcerated, appellant and her four children had visited him monthly without incident. In addition, the mother and son corresponded frequently.

Upon arriving at the institution, appellant and her party were advised that they would have to submit to a strip search before visiting Kenneth because prison officials had received an anonymous tip that the visitors would attempt to smuggle drugs during their visit. Although correctional officials attempted to confirm the information by contacting the Department of Criminal Investigation, all they learned was that the tip came from an unidentified person who called from the Gateway Opportunity Center in Des Moines, a community action program facility for low income families. The parties’ stipulation of fact notes that “[n]o corroboration of [the] anonymous tip was made.”

When Hunter and the other visitors refused to be strip searched, they were denied visiting privileges. In a letter dated March 22 the warden informed appellant and the persons accompanying her on March 17 that as a result of their refusal to submit to the body search, all visits to any adult correctional facility were suspended and could be reinstated only after a satisfactory personal interview. Appellant, however, did not request an interview.

We note that none of the individuals suspected of drug smuggling activity on March 17 had ever been arrested or convicted on drug charges. Further, no contraband had ever been found on the person of Kenneth Hunter6 after a visit from his mother or anyone accompanying her to the facility.7

Strip Search Policy

A visitor entering the visiting room entryway at Iowa correctional facilities is re[672] quired to submit a “Request for Visiting Permit,” a standard form thát the visitor completes with the inmate’s name and his name, address, and relation to the inmate.8 After the form is submitted to the visiting room guard, the inmate’s visiting card is pulled to determine if the visitor is approved 9 and, if approved, whether the visitor should be strip searched. If a strip search notation appears on the visiting card, the correctional officer on duty advises the visitor that he must submit to a strip search before visiting the inmate. Because there are no facilities for non-contact visitation, a visitor to the Iowa Men’s Penitentiary is given the alternative of submitting to the search or foregoing the visit. At the Iowa Men’s Reformatory, a strip search is also a condition precedent to a contact visit between an inmate and a visitor suspected of carrying contraband, namely drugs. If a visitor to this institution refuses to be strip searched, however, he is in some circumstances allowed a non-contact visit with the inmate since appropriate facilities for such visitation are available there. At the Augusta Unit, inmates are allowed unlimited contact visits, including unsupervised outdoor contact with visitors. The record is unclear whether facilities for non-contact visits are available at this location.

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Hunter v. Auger, 672 F.2d 668, 69 A.L.R. Fed. 841 (8th Cir. 1982).

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