RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Reynolds v. City of Anchorage, et al. No. 02-6443 ELECTRONIC CITATION: 2004 FED App. 0264P (6th Cir.) File Name: 04a0264p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: David A. Friedman, FERNANDEZ, FOR THE SIXTH CIRCUIT FRIEDMAN, GROSSMAN & KOHN, Louisville, Kentucky, _________________ for Appellant. Suzanne D. Cordery, JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. KATHERINE REYNOLDS, X ON BRIEF: David A. Friedman, FERNANDEZ, Plaintiff-Appellant, - FRIEDMAN, GROSSMAN & KOHN, Louisville, Kentucky, - for Appellant. David L. Leightty, LEIGHTTY & - No. 02-6443 ASSOCIATES, Louisville, Kentucky, for Appellee. v. - > FRIEDMAN, J., delivered the opinion of the court, in , which NELSON, J., joined. MOORE, J. (pp. 17-26), CITY OF ANCHORAGE, et al., - Defendants, - delivered a separate dissenting opinion. - _________________ LESLIE WATSON, Jefferson - County Officer, - OPINION Defendant-Appellee. - _________________ - N FRIEDMAN, Circuit Judge. This appeal challenges a Appeal from the United States District Court district court’s summary judgment dismissing a suit under for the Western District of Kentucky at Louisville. 42 U.S.C. § 1983 (1994) against a female police officer who No. 97-00446—John G. Heyburn II, Chief District Judge. made a warrantless strip search of a female resident in a children’s home. The resident had been placed there Argued: March 12, 2004 following a juvenile court determination that she had committed various offenses. The district court dismissed her Decided and Filed: August 9, 2004 suit because it ruled that the police officer had qualified immunity. We affirm. Before: NELSON, MOORE, and FRIEDMAN, Circuit I Judges.* 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 * Daniel M. Friedman, Circuit Judge of the United States Court of Katherine Reynolds, then sixteen years old, had committed Appeals for the Federal Circuit, sitting by designation. the offenses of possession of marijuana, forgery, and
1 No. 02-6443 Reynolds v. City of Anchorage, et al. 3 4 Reynolds v. City of Anchorage, et al. No. 02-6443
fraudulent use of a credit card. As a result, she was removed behavior convinced the officers that the girls needed to be from her parents custody and was placed in the Bellewood searched to ensure that there were no drugs in the cottage.” Presbyterian Home for Children (“the Bellewood Home”), a Id. Because the officers were all male, they called the county state-approved private facility for juvenile offenders. While police department to send a female officer to conduct the there, she, together with several other girls, lived in Haney searches. The department sent the appellee, Officer Leslie Cottage. Haney Cottage residents, including Reynolds, Watson, to perform the task. As the district court stated: “admitted having previously used drugs while living” there. Id. Upon her arrival, [Watson] observed the girls running throughout the cottage, playing loud music, and yelling. On June 8, 1997, Reynolds (then seventeen) and two other The Anchorage officers said that they had searched the Haney residents walked around the facility’s grounds. Upon girls’ rooms and located what they believed to be drug their return, two staff members observed that the girls were paraphernalia. She was also informed that the officers “acting strangely” and suspected drug use might be the suspected that the girls might be harboring drugs in their reason. Id. at 2. At that same time, a local police officer of undergarments or other clothing. [Watson] indicated that the city of Anchorage, Kentucky, who was passing Bellewood she could not perform a body cavity search without a in his patrol car, telephoned the staff members to “make sure warrant, but that she would perform a visual strip search everything was alright,” id., and to “say hi.” The staff of the girls to look for drugs. members told the officer about their suspicions that the girls “might be under the influence of drugs and might have drugs [Watson] conducted the searches one at a time. Each girl in their possession.” Id. The officer, joined by another local was searched in her own room with a female staff officer, proceeded to Haney Cottage “to assess the situation.” member present. [Watson] instructed each girl to first to Id. remove her blouse and bra, put them back on, and then to remove her bottom clothing and underwear and bend After the girls, including Reynolds, were placed in the over to allow a visual inspection of her rectal area. cottage’s living room and instructed to stay there in the [Watson] never physically touched any of the girls charge of a staff member, the police officers and the other during the searches. No drugs were located on any of the staff member searched the girls’ rooms. In Reynold’s room girls during the strip searches. they found “a plastic baggy . . . which the officers believed may have contained drugs.” Id. In other rooms, the officers Id. at 3. found “a baggy with a plant substance residue the officers thought might be marijuana, . . . a glass vial which the Reynolds then filed in the United States District Court for officers believed may have been used as a pipe,” and the Western District of Kentucky the present suit under “prescription pills”– all items the officers “believed to be 42 U.S.C. § 1983 against the City of Anchorage, its Chief of associated with drug use.” Id. Police, and the police officers involved. She sought injunctive and declaratory relief, and compensatory, “At some point, [Reynolds] insinuated to the staff members exemplary, and punitive damages. All defendants except and the officers that she might have drugs hidden in her Watson settled. undergarments. [Reynolds’] statements coupled with the suspicious items located in the girls’ rooms and their strange No. 02-6443 Reynolds v. City of Anchorage, et al. 5 6 Reynolds v. City of Anchorage, et al. No. 02-6443
On cross-motions for summary judgment, the district court whether Officer Watson had qualified immunity in making granted Watson’s motion, ruling that she had qualified the search. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1042 immunity. The court (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. conclude[d] that in 1997 it was not clearly established 2001), however, decided after Saucier, this court, after that a search warrant supported by probable cause was holding that state prison employees had qualified immunity required to constitutionally conduct a strip search of a for strip searching another prison employee, stated: “We need minor suspected of possessing drugs in a juvenile home not and do not, opine on the Fourth Amendment standards to or detention center. Based on the particular facts, and in be applied to strip-searches of prison employees.” light of the then existing case law to guide [Watson], the Court conclude[d] that the type and scope of the search A. The application of the Fourth Amendment to performed on [Reynolds] were objectively reasonable. warrantless strip searches has been developed largely in cases Therefore, [Watson] [wa]s qualifiedly immune from suit involving such searches in prisons and in schools. In Bell v. under 42 U.S.C. § 1983. Wolfish, 441 U.S. 520 (1979), the Supreme Court held that visual body cavity inspections during strip searches of pre- Id. at 11-12. trial detainees and convicted prisoners after they had contact with outsiders were not “unreasonable” searches under the II Fourth Amendment. The searches were conducted at the “federally operated short-term custodial facility in New York In its most recent qualified immunity decision, the Supreme City designed primarily to house pretrial detainees.” Id. at Court stated that a court determining “a qualified immunity 523. The Court stated that applying “[t]he test of defense” in “a suit against an officer for an alleged violation reasonableness under the Fourth Amendment . . . [i]n each of a constitutional right,” must make two inquiries. Saucier case . . . requires a balancing of the need for the particular v. Katz, 533 U.S. 194, 200 (2001). First, the “court . . . must search against the invasion of personal rights that the search consider . . . this threshold question: Taken in the light most entails. Courts must consider the scope of the particular favorable to the party asserting the injury, do the facts alleged intrusion, the manner in which it is conducted, the show the officer’s conduct violated a constitutional right?” justification for initiating it, and the place in which it is Id. at 201. “[S]econd, assuming the violation is established, conducted.” Id. at 559. It pointed out that a “detention the question whether the right was clearly established must be facility is a unique place fraught with serious security considered . . . . ” Id. at 200. “If no constitutional right dangers. Smuggling of money, drugs, weapons, and other would have been violated were the allegations established, contraband is all too common an occurrence.” Id. there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made In Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th out on a favorable view of the parties’ submissions, the next, Cir. 1987), this court held that under Wolfish‘s balancing sequential step is to ask whether the right was clearly analysis, the strip search of a detainee in a local jail pursuant established.” Id. at 201. to a policy of so searching detainees before moving them into an area of the jail where they would have contact with the We therefore shall consider whether Officer Watson’s strip general prison population, was not an unreasonable search search of Reynolds violated the Fourth Amendment and and therefore did not violate the Fourth Amendment. The No. 02-6443 Reynolds v. City of Anchorage, et al. 7 8 Reynolds v. City of Anchorage, et al. No. 02-6443
court stated: “The security interests of the jail in conducting Cases involving searches of students by school authorities a search at this point were strong. Dobrowolskyj was about also are instructive. In New Jersey v. T. L. O., a school to come into direct contact with the general jail population, principal searched a student’s purse after a teacher found the including prisoners who would then be moved into all student smoking in the restroom, in violation of school rules. sections of the jail. The jail had legitimate interests in 469 U.S. 325, 328 (1985). The Court held that the search was preventing the flow of contraband into the other sections of reasonable. After noting that the Fourth Amendment “applies the jail.” Id. at 959. to searches conducted by public school officials,” id. at 333, the Court stated that “school officials need not obtain a Griffin v. Wisconsin, 483 U.S. 868 (1987), although warrant before searching a student who is under their involving a different issue, provides further guidance. The authority,” id. at 340. It stated that “the accommodation of question there was whether a probation officer’s warrantless the privacy interests of schoolchildren with the substantial search of a probationer’s home, pursuant to a state regulation need of teachers and administrators for freedom to maintain authorizing such search if there were “reasonable grounds” to order in the schools does not require strict adherence to the believe that contraband was present there, violated the Fourth requirement that searches be based on probable cause to Amendment. Id. at 870-71. The search was made after the believe that the subject of the search has violated or is police had told the probation department that “there were or violating the law. Rather, the legality of a search of a student might be guns” in the probationer’s apartment. Id. at 871. should depend simply on the reasonableness, under all the The search uncovered a handgun in the apartment. The Court circumstances, of the search. . . . Under ordinary held that “[t]he search of [the probationer’s] residence was circumstances, a search of a student by a teacher or other ‘reasonable’ within the meaning of the Fourth Amendment school official will be ‘justified at its inception’ when there because it was conducted pursuant to a valid regulation are reasonable grounds for suspecting that the search will turn governing probationers.” Id. at 880. up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be The Court indicated that “[a] warrant requirement would permissible in its scope when the measures adopted are interfere to an appreciable degree with the probation system,” reasonably related to the objectives of the search and not id. at 876, and that “the probation regime would also be excessively intrusive in light of the age and sex of the student unduly disrupted by a requirement of probable cause,” id. at and the nature of the infraction.” Id. at 341-42 (footnotes 878. It stated: “In such circumstances it is both unrealistic omitted). and destructive of the whole object of the continuing probation relationship to insist upon the same degree of This court applied the T.L.O. resonableness analysis to a demonstrable reliability of particular items of supporting data, warrantless strip search for drugs conducted by school and upon the same degree of certainty of violation, as is officials in Williams v. Ellington, 936 F.2d 881 (6th Cir. required in other contexts. In some cases – especially those 1991). There a female student reported to the principal involving drugs or illegal weapons – the probation agency (Ellington) that Williams and another girl had used drugs at must be able to act based upon a lesser degree of certainty school; there was other evidence that supported that than the Fourth Amendment would otherwise require in order conclusion. After a search of William’s locker, books and to intervene before a probationer does damage to himself or purse produced no evidence of drugs, the principal asked a society.” Id. at 879. female assistant principal to strip search Williams, which she did. Id. at 883. No drugs were found. No. 02-6443 Reynolds v. City of Anchorage, et al. 9 10 Reynolds v. City of Anchorage, et al. No. 02-6443
Williams then filed suit under 42 U.S.C. § 1983 against B. Under the foregoing decisions, the determination of the school officials (including the principal and the assistant reasonableness under the Fourth Amendment of a strip search principal who conducted the strip search) and the school of a juvenile delinquent in a detention facility requires us to board members. This court affirmed the district court’s balance “the need for the particular search against the summary judgment for the defendants. Id. at 889. It held that invasion of personal rights that the search entails.” Wolfish, the defendants had qualified immunity. Id. This court stated: 441 U.S. at 559. Ellington’s decision to search Williams and her The situation of the juvenile delinquent inmates of the possessions for the presence of drugs was based upon the Bellewood Home lay somewhere between that of prison events that occurred during the week of January 17, inmates and students in school. The Bellewood inmates were 1988. A study of the record leads us to conclude that not as closely confined or strictly controlled and supervised Ellington and the remaining Defendants were not as prison inmates or detainees. Perhaps their expectations of unreasonable in suspecting, based on the information privacy in that situation were somewhat greater than those of available at the time, that a search of Williams would prisoners, but this slight difference appears insignificant. On reveal evidence of drugs or drug use. Further, the other hand, they were still subject to substantial restraint; Defendants were not unreasonable, in light of the item they were required to live and remain in the Home and they sought (a small vial containing suspected narcotics), in were not free to leave it as they wished. Their confinement to conducting a search so personally intrusive in nature. the Home, like that of inmates in a prison, was punishment for prior criminal misdeeds. In comparison to students in Id. at 887 school, whose mandatory attendance is not punishment for criminal misconduct but a method of insuring their education, In Tarter v. Raybuck, 742 F.2d 977, 983 (6th Cir. 1984), the inmates of the Home were under substantially greater this court held that school officials had made a reasonable restraint and had a lesser expectation of privacy than do search of a student’s person (although he did not remove all students. of his clothing) where they “had observed activity they reasonably believed to indicate the use and sale of marijuana, Applying this balancing approach, we conclude that Officer activity which plainly constituted a violation of a well Watson’s strip search of Reynolds was not unreasonable. In established policy.” This court stated that in determining so concluding, we apply Wolfish’s admonition to “consider whether the search was reasonable, “we balance the [F]ourth the scope of the particular intrusion, the manner in which it [A]mendment rights of individual students with the interest of [was] conducted, the justification for initiating it, and the the state and the school officials in the maintenance of a place in which it [was] conducted.” Id. Wolfish also pointed proper educational environment to educate today’s youth.” out that a “detention facility is a unique place fraught with Id. at 982. It “h[e]ld that a school official or teacher’s serious security dangers. Smuggling of money, drugs, reasonable search of a student’s person does not violate the weapons, and other contraband is all too common an student’s [F]ourth [A]mendment rights, if the school official occurrence.” Id. The Bellewood Home also was “a unique has reasonable cause to believe the search is necessary in the place fraught with” a variety of problems and dangers, furtherance of maintaining school discipline and order, or his including the use of drugs by its residents. The need to duty to maintain a safe environment conducive to education.” “maintain[] . . . discipline and order” there is no less than in Id. school. Tarter, 742 F.2d at 982. No. 02-6443 Reynolds v. City of Anchorage, et al. 11 12 Reynolds v. City of Anchorage, et al. No. 02-6443
Following the determination by the juvenile court that 2000). As the district court correctly stated, however, the Reynolds had committed three criminal offenses, including “circumstances” in the present case “are significantly possession of marijuana, the court removed her from her different from those in Toles.” Mem. Op. at 6. parents’ custody and placed her in the Bellewood Home, which thereby became her new “home.” The Bellewood In Toles, three girls had spent some time trying on bathing Home had the duty and responsibility to insure the safety, suits in a department store but did not purchase any. A clerk, health, and well being of Reynolds and the other inmates. suspicious because of the length of time the girls were in the The use and/or possession of drugs by Reynolds or the other dressing room, called the defendant Friedman, an off-duty girls would cause serious problems within the Bellewood police officer who was doing security work for the store. Home and adversely affect its proper functioning. The Home When the girls were about to leave the store, Friedman thus had a strong interest in eliminating and preventing drug stopped them. After searching their purses and finding use on the premises by its residents. nothing, he suspected that they might be concealing a bathing suit under their outer clothing. Friedman arranged for a Watson and other girls admitted they previously had used female security guard at the mall where the store was located drugs while living in the Home. They had acted “strangely” to strip search the girls. She did so but did not find a bathing after returning from a walk, which led staff members to suit. suspect the use of drugs. A search of their rooms by the police officers had uncovered paraphernalia that the officers The girls sued Friedman, who claimed qualified immunity. “believed to be associated with drugs use.” Mem. Op. at 2. The district court refused to grant such immunity, finding Reynolds had insinuated that she had drugs hidden in her there were disputed factual issues. Friedman appealed to this underwear. The police officers justifiably concluded that the court only from the denial of qualified immunity. only way to assuage these concerns about the girls’ possession of drugs “and to ensure that there were no drugs in We dismissed the appeal for lack of jurisdiction because an the cottage” was to strip search the girls. Id. order denying qualified immunity due to the presence of a disputed issue of material fact is not immediately appealable. Although the strip search was a highly invasive procedure, We held that there was such an issue: whether the girls it was no more invasive than necessary to accomplish its consented to the strip search. We ruled that “a reasonable law purpose of insuring that Reynolds and the other girls were not enforcement officer, in the circumstances presented, could not concealing drugs on their persons. It was conducted in a way believe that exigent circumstances justified the warrantless designed to minimize its intrusive effect. Officer Watson strip searches of the young women,” and that “the only made the search in the privacy of the girls’ own rooms and in possible exception to the warrant requirement that could have the presence of only a single staff member. She did not touch validated the presumptively unreasonable, warrantless search any of the girls during the search. Considering all the was a search undertaken pursuant to the consent of the circumstances, we conclude that Officer Watson’s strip search plaintiffs.” Id. at **4. We concluded that “[t]he existence of of Reynolds was not unreasonable. that unresolved factual dispute preclude[d] this court from exercising jurisdiction over this appeal at this time.” Id. at Reynolds continues to rely heavily here, as she did in the ** 5. district court, on this court’s unpublished opinion in Toles v. Friedman, No. 99-4031, 2000 WL 1871683 (6th Cir. Dec 11, No. 02-6443 Reynolds v. City of Anchorage, et al. 13 14 Reynolds v. City of Anchorage, et al. No. 02-6443
In Toles, the defendant sought to justify the strip search on it was not unreasonable for [Watson] to conclude that a the basis of exigent circumstances, an exception to the search was necessary both to ensure [Reynolds’] safety warrant requirement not involved here. Toles arose in the and the safety of the other residents. Thus, it was commercial context of a suspected theft by customers in a objectively reasonable for [Watson] to conclude that department store – a situation totally unlike the suspected use interests apart from those of ordinary law enforcement of drugs by a juvenile delinquent in a children’s home. permitted her to conduct a warrantless strip search of [Reynolds]. C. Should the analysis or result be different because the strip search was conducted by a police officer rather than by Mem. Op. at 11. an employee of the Bellewood Home? We think not. On this record, we have no reason to disagree with or reject As Reynolds points out, the cases we have discussed in Part those conclusions. Under them, the search did not require a II.A that formulate and apply the balancing test in warrant even though conducted by a police officer. It was determining the Fourth Amendment reasonableness of strip reasonable because Officer Watson had a reasonable searches involved searches by persons other than police suspicion that the girls possessed narcotics. Cf. United States officers. It does not follow, however, that those principles v. Knights, 534 U.S. 112, 121 (2001) (“When an officer has cannot properly be applied where the strip search is made by reasonable suspicion that a probationer subject to a search a police officer. Those cases do not state that their principles condition is engaged in criminal activity, there is enough are inapplicable to strip searches by police officers. likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests The inquiry in those cases focused on balancing “the need is reasonable.”). for the particular [strip] search against the invasion of personal rights that the search entails,” Wolfish, 441 U.S. at III 559, not on the identity of the person conducting the search. As we have shown, under that balancing test the strip search Even if our conclusion that the strip search did not violate of Reynolds would have been reasonable if the staff members the Fourth Amendment were to be rejected, we still would of the Bellewood Home had conducted it. We see no valid affirm the district court’s summary judgment for Officer reason why the result should be different because it was a Watson dismissing the complaint. That is because we agree police officer who conducted the search. In either instance, with the district court that Officer Watson had qualified the purpose and objective of the search was the same: to help immunity for conducting the search. the Home determine whether the girls possessed drugs, and thus to aid the Home in uncovering what the facts suggested The Supreme Court has explained that may have been the illegal use of drugs by some of the residents. [t]he concern of the [qualified] immunity inquiry is to acknowledge that reasonable mistakes can be made as to The district court concluded that, based on the facts known the legal constraints on particular police conduct. It is to Officer Watson, described above, sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts. An officer might No. 02-6443 Reynolds v. City of Anchorage, et al. 15 16 Reynolds v. City of Anchorage, et al. No. 02-6443
correctly perceive all of the relevant facts but have a Fourth Amendment to strip searches of juvenile delinquents mistaken understanding as to whether a particular in an institutional home in which they are confined. amount of force is legal in those circumstances. If the Moreover, as is shown by the analysis, in Part II above, of officer’s mistake as to what the law requires is existing precedent that deals with the Fourth Amendment reasonable, however, the officer is entitled to the status of strip searches in other contexts, the question is close immunity defense. and difficult. It involves subtle legal distinctions and inferences that a reasonable police officer would not and Saucier, 533 U.S. at 205. could not be expected to make. Under qualified immunity, “government officials In these circumstances, any mistake that Officer Watson performing discretionary functions, generally are shielded may have made about her authority to conduct the strip from liability for civil damages insofar as their conduct does searches was reasonable. It cannot be said that at that time it not violate clearly established statutory or constitutional was clearly established that Reynolds had a constitutional rights of which a reasonable person would have known.” right not to be so searched except pursuant to a valid search Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also warrant. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (In damage suit against former Attorney General Mitchell for authorizing a Officer Watson was aware of and sensitive to the existing wiretap, “[u]nder Harlow v. Fitzgerald, Mitchell [was] settled limits upon her authority to make strip searches. As immune unless his actions violated clearly established law.”). the district court noted, upon arriving at the Bellewood Home, This court has stated that “[t]o determine what rights are she “indicated that she could not perform a body cavity search ‘clearly established,’ we must look to decisions from the without a warrant, but that she would perform a visual strip Supreme Court and from courts within this circuit,” although search of the girls to look for drugs.” Mem. Op. at 3. Even “[i]n rare instances, where authority is lacking from these if she were mistaken in concluding that she could make a sources, we may also review decisions of other courts.” warrantless visual strip search, such mistake was reasonable. Williams v. Ellington, 936 F.2d at 885. CONCLUSION “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a The summary judgment of the district court in favor of reasonable officer that his conduct was unlawful in the Officer Watson is affirmed. situation he confronted.” Saucier, 533 U.S. at 202. 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 No. 02-6443 Reynolds v. City of Anchorage, et al. 17 18 Reynolds v. City of Anchorage, et al. No. 02-6443
_______________ be a key juncture: whether or not the strip-searches of the residents of Haney Cottage were authorized by staff members DISSENT or instead were initiated by police. It is of course the facts as _______________ asserted by Katherine Reynolds (“Reynolds”), the non- moving party, that we must follow. Bellewood Presbyterian KAREN NELSON MOORE, Circuit Judge, dissenting. In Home for Children (“Bellewood”) is a private group home for holding that Officer Watson’s warrantless strip-search of a abused and at-risk children, with an explicitly religious seventeen-year-old girl was “reasonable” under the Fourth mission, which is under contract to the Kentucky Cabinet for Amendment, the district court relied on the “special needs” Human Resources. Reynolds was sent to Bellewood after exception to the rule that all warrantless searches are being adjudicated delinquent for marijuana possession, presumptively unreasonable. In affirming that dubious second-degree forgery, and fraudulent use of a credit card. holding, the majority untethers the district court’s language Joint Appendix (“J.A.”) at 84. While Reynolds and others from its reasoning, and in a single paragraph of analysis, were sent to Bellewood after juvenile delinquency relies on United States v. Knights, 534 U.S. 112, 121 (2001), proceedings, this is not true of all of Bellewood’s residents. to conclude that “reasonable suspicion” is all that is necessary Reynolds was seventeen at the time of the incident, and lived to justify a strip-search of a juvenile in a private group home at Haney Cottage with other juveniles and staff members. by police acting without authorization from that home’s staff. J.A. at 207, 213, 218. I believe the district court was wrong to conclude that this was a valid “special needs” search, I believe the majority is On June 8, 1997, Reynolds and two other residents of wrong to rely on Knights rather than the general rule that a Haney Cottage took a walk on the Bellewood grounds. When warrantless search is presumptively unreasonable unless they returned, they were acting “strange” and two Bellewood falling into an enumerated exception, and I believe that even staff members, Melissa Adamchik (“Adamchik”)1 and under the balancing test used in Knights, this search was Stephanie Jacob (“Jacob”), suspected the girls of using drugs. unreasonable. J.A. at 89. At roughly the same time, Anchorage Police Officer Toby Lewis (“Lewis”), whose beat included The majority relies upon the district court’s recitation of Bellewood, called the cottage from his cell phone as he drove facts, and in doing so amplifies the district court’s errors. The by. Lewis testified that he called “just to say hi.” J.A. at 157. “basic underlying facts” are not “undisputed”; a thorough During the course of the friendly conversation, Adamchik and review of the record reveals that the version of events given Jacob informed Lewis of their suspicions of drug use. J.A. at by the police officers in their deposition testimony and 86, 143-44, 158-62. Lewis then entered the cottage, and the written reports and that of the staff of the Bellewood home decision was made to search the girls’ rooms. J.A. at 158-62. and its residents are wildly divergent. Compare Dep. of Lewis’s deposition testimony was that Adamchik and Jacob Officer Watson, R. 119, at 32 (“I tried to do it [the strip- had asked him to search the girls, and when he informed them searches] as gently as possible and considerate as possible”) that he could not, and offered to search the rooms, they then with Dep. of Katherine Reynolds, R. 92, at 157 (“And then [Watson] said, “If you don’t take off the f***ing bra, I’m going to take it off for you.”) and Dep. of Sarah Lynette 1 Holman, R. 101, at 44-45 (describing Watson as “rude” and Melissa Adamchik is the staff member’s married name; in the record, she is sometimes identified by her maiden name, M elissa “cocky”). This divergence is most acute at what I believe to W ambaugh. No. 02-6443 Reynolds v. City of Anchorage, et al. 19 20 Reynolds v. City of Anchorage, et al. No. 02-6443
asked him to do that. J.A. at 161-63. Adamchik testified that girls could have contraband on their persons. “[I]t just they did not ask Lewis to perform a search, which conforms seemed kind of pointless to me.” J.A. at 261 (Dep. of to her account of events in written incident reports, but that a Katherine Reynolds). The decision was then made to perform call was placed to Carol Wochenko, head therapist for Haney a strip-search on the girls. According to Lewis, it was Ennis Cottage, who indicated her approval of the room searches. who made the instant decision to search the girls, but J.A. at 80, 89, 121-22; Dep. of Melissa Adamchik, R. 162, at consistent with his earlier testimony that the entire incident 37. Lewis called in for backup, and Officer James Ennis was prompted by a staff request to search the girls, Lewis also (“Ennis”) arrived at the scene. A search of all five rooms at testified that when Watson arrived, he informed Watson that Haney Cottage ensued, during which time a third Anchorage the staff had requested that the girls be searched. J.A. at 189- police officer, Officer Timothy Young (“Young”) arrived. 90, 199-200. Watson testified that when she arrived, both J.A. at 86. In Reynolds’s room, two packs of cigarettes and staff members and her three fellow officers individually an empty plastic bag (the “plastic baggy . . . which the requested that she perform the search. J.A. at 274-75, Dep. of officers believe may have contained drugs” noted by the Leslie Watson at 15-19. Adamchik, on the other hand, majority) were found; in other residents’ rooms, seven testified that the first mention of strip-searches came from the lawfully-prescribed Depakote tablets, a clear vial with a white officers, that she did not request the strip-searches, and that powder residue, and a small baggie with trace amounts of an she never heard Jacob request the strip-searches. J.A. at 128- unidentified brown substance were found. J.A. at 86. The 29, 134-35, 137-38. No further phone call was placed to latter two items were later sent to be tested, and the powder Carol Wochenko. Reynolds testified that Adamchik or Jacob turned out to be non-drug related, while the brown substance informed her that the police had decided to strip-search the was not substantial enough to be tested. J.A. at 186. The girls, and other Haney Cottage residents described Adamchik district court stated that Reynolds and other Haney Cottage as visibly physically distressed at the strip-searches. Dep. of residents “admitted having previously used drugs while Katherine Reynolds at 143-44, 180 (“[S]he said that they [the living” at the cottage, J.A. at 29. Presumably this is meant to police] were the ones that initiated it, the strip search”); Dep. have relevance in determining the reasonableness of of Carla Dana Hudson at 184-85; Dep. of Shatonya Lanyce subsequent events; this statement may refer to Officer Elam at 136-37. At that point, each girl was taken into her Lewis’s testimony that at a prior talk he had given to the own room by Watson and strip-searched with Adamchik residents of Haney Cottage, Reynolds had stated “that she has present. Although Watson testified that each girl was first used drugs in the past and she will continue to use drugs.” instructed to remove her shirt and bra, and then put them back Dep. of Toby Lewis at 93-94. Whatever the reliability of this on, and then remove her pants and underwear and bend over, hearsay, such adolescent bravado has limited value in and then put her clothing back on, at least one of the girls determining whether Reynolds had contraband on her person testified that to the contrary, she was entirely naked during the at some future time. search. J.A. at 283-84 (Dep. of Leslie Watson); Dep. of Sarah Lynette Holman, R. 101, at 45. Each girl was also made to At this point, the majority repeats the district court’s bend over and spread her buttocks. No drugs were description of a statement by Reynolds to the supposed effect discovered. “that she might have drugs hidden in her undergarments.” In fact, frustrated by what she no doubt saw as an intrusive and “Warrantless searches are per se unreasonable under the ultimately fruitless search of her residence, Reynolds pointed fourth amendment, except in a few carefully delineated out to Jacob that room searches were useless, because the instances.” United States v. Radka, 904 F.2d 357, 360 (6th No. 02-6443 Reynolds v. City of Anchorage, et al. 21 22 Reynolds v. City of Anchorage, et al. No. 02-6443
Cir. 1990); see also Groh v. Ramirez, 124 S. Ct. 1284, 1290- Court as part of the “special needs” doctrine. See Skinner, 91 (2004) (reaffirming presumption that warrantless searches 489 U.S. at 619-20. Each case cited by the majority in the are unreasonable in context of search of home). Those first part of its analysis is thus part of the “special needs” exceptions include automobile searches, consented-to exception to the warrantless search per se rule. searches, searches incident to arrest, seizures of items in plain view, Terry stops, the hot-pursuit rule, and searches in order Under the “special needs” doctrine, a search of a particular to prevent the loss or destruction of evidence. The district student, with the exception of drug testing, must be supported court relied upon the “special needs” doctrine in granting by reasonable suspicion, which Reynolds concedes exists in qualified immunity to Watson. J.A. at 29, 34-35. The this case. Reynolds’s Reply Brief at 1; T.L.O., 469 U.S. at “special needs” doctrine, first articulated by Justice Blackmun 341-42. We have relied upon this holding to extend qualified in his concurring opinion in New Jersey v. T.L.O., 469 U.S. immunity to officials performing strip-searches of public- 325, 351 (1985), constitutes an exception to the rule that all school students for drugs. See Williams v. Ellington, 936 searches must be pursuant to a search warrant obtained by the F.2d 881, 887-89 (6th Cir. 1991). The majority therefore is demonstration of probable cause in those cases where “special likely correct to conclude that Bellewood Home “had a strong needs, beyond the normal need for law enforcement, make the interest in eliminating and preventing drug use on the warrant and probable-cause requirement impracticable.” Id. premises by its residents” that could support a warrantless T.L.O. involved a search of a public-school student by school strip-search of Reynolds by Bellewood’s staff upon officials on the basis of particularized suspicion, but the reasonable suspicion that she was concealing contraband on “special needs” doctrine has since been extended by the her person. The majority in the next paragraph then reveals Supreme Court to allow suspicionless drug testing of public- its logical misstep in stating, “The police officers justifiably school students involved in after-school activities, see Bd. of concluded that the only way to assuage these concerns . . . Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822 was to strip-search the girls.” This marriage between the (1990), and workers in sensitive industries, see Skinner v. Ry. needs of the Bellewood Home and the conclusions and Labor Executives’ Ass’n, 489 U.S. 602 (1989) (railway actions of the police officers is not merely a question of the employees who violate safety rules or who are involved in identity of the searcher, but of the object of the search. accidents); Nat’l Treasury Employees Union v. Von Raab, Whether a warrantless strip-search initiated and authorized by 489 U.S. 656 (1989) (customs officials who carry a firearm or Bellewood staff, but conducted by police, would have been a work in drug interdiction), sobriety checkpoints, see Mich. valid “special needs” search was a question expressly left Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and open by T.L.O., 469 U.S. at 342 n.7 (reserving question of warrantless searches of probationers’ private residences, see “searches conducted by school officials in conjunction with Griffin v. Wisconsin, 483 U.S. 868 (1987). The Court has or at the behest of law enforcement agencies”). This question made clear, however, that searches whose primary purpose is is thus perhaps deserving of more than a page of analysis in law enforcement are not “special needs” searches. See its answer, but that answer is entirely academic in this case: Ferguson v. City of Charleston, 532 U.S. 67 (2001); City of taking Reynolds’s version of facts as correct, we must assume Indianapolis v. Edmond, 531 U.S. 32 (2000). Although Bell that police initiated and performed the strip-searches on their v. Wolfish, 441 U.S. 520 (1979), predates T.L.O., its holding own. Under those facts, it becomes clear that a constitutional that pretrial detainees can be subject to body-cavity searches violation did, in fact, occur. Police officers, invited onto after every contact visit consonant with the Fourth private property, cannot initiate a warrantless strip-search of Amendment has been later contextualized by the Supreme citizens merely because some other authority has the right to No. 02-6443 Reynolds v. City of Anchorage, et al. 23 24 Reynolds v. City of Anchorage, et al. No. 02-6443
search those citizens to maintain order in its facility. That such searches. If Reynolds had been home on a weekend result is clearly contrary to the sharp line drawn by the visit, as was regular, and her parents had invited Watson into Supreme Court between valid “special needs” searches and the home to speak to Reynolds about the dangers of drug use, those that are unlawful because they serve ordinary law would the majority hold that Watson could then proceed to enforcement goals as well as special needs. See Ferguson, strip-search Reynolds without her parents’ permission 532 U.S. at 79-80. because their interests in keeping their daughter away from drugs justified the intrusion on Reynolds’s right to be free The majority in its ultimate conclusion that no from unreasonable searches? I see little logical distinction constitutional violation occurred relies on United States v. between such obviously excessive police behavior and the Knights, 534 U.S. 112 (2001). To the extent that Knights actions of police we must assume took place here. eschewed reliance on the “special needs” exception to the general rule that a warrantless search is unconstitutional in Finally, I disagree that Watson is entitled to qualified favor of a more general balancing approach, that case is immunity. Because the general rule that a warrantless search necessarily limited to its facts by subsequent cases which is unreasonable was clearly established in 1997, I believe that have reaffirmed the per se rule/carefully delineated exceptions the majority inverts the proper inquiry when it notes that no approach to warrantless searches of the home. See Groh, 124 court has addressed the application of the Fourth Amendment S. Ct. at 1290-91. In fact, Knights has not been cited again to the situation before us today in support of qualified by the Supreme Court in deciding nearly a dozen cases immunity; instead, if no case suggests that a police officer is involving Fourth Amendment reasonableness. Nonetheless, entitled to rely on similar administrative “special needs” in even assessing the search under Knights’s general initiating a strip-search herself, Watson is not immune from reasonableness equation, I believe this search was still suit. No cases in our circuit, nor indeed any court addressing unreasonable, because the key problem with this search is that the related issue of when searches on school grounds are the government had no interest in it beyond a generalized appropriate, suggest that Watson’s actions were justified.2 interest in law enforcement, and that interest cannot justify the strip-search, particularly of a minor, based merely on Since T.L.O., courts have generally held that T.L.O.’s reasonable suspicion. See Knights, 534 U.S. at 118-19 reasonable-suspicion standard applies to searches conducted (“reasonableness of a search is determined ‘by assessing, on by law enforcement officials at the behest of school officials. the one hand, the degree to which it intrudes upon an See Shade v. City of Farmington, 309 F.3d 1054, 1060 (8th individual’s privacy and, on the other, the degree to which it Cir. 2002) (search constitutional where “school officials, not is needed for the promotion of legitimate governmental law enforcement officers, initiated the investigation and the interests.’” (quoting Wyoming v. Houghton, 526 U.S. 295, search”); Cason v. Cook, 810 F.2d 188, 192 (8th Cir. 1987) 300 (1999)). While Bellewood had an interest in maintaining (no violation where “no indication that but for the deputy’s order in its facility, one that may have been served by the involvement, the plaintiff would not have been searched”); search of Reynolds, Bellewood was not the entity searching Reynolds, nor is it necessarily a governmental entity at all; it 2 is a private religious home for children. Whether or not that United States v. Knights, 534 U.S. 112, 121 (2001), can of course private institution can “deputize” police officers to search its offer Watson no help at this stage of the inquiry, as it was decided after residents, surely police officers cannot of their own initiative the events in question too k place; add itionally, there is no indication anywhere in the record that W atson knew that R eynolds was herself a do so without being subject to the normal rules governing delinquent or that Haney Cottage was home o nly to delinquents. No. 02-6443 Reynolds v. City of Anchorage, et al. 25 26 Reynolds v. City of Anchorage, et al. No. 02-6443
State v. N.G.B., 806 So. 2d 567, 568-69 (Fl. Dist. Ct. App. conducted searches on their own initiative. See also Tarter v. 2002) (“reasonable suspicion was the appropriate standard” Raybuck, 742 F.2d 977, 983 (6th Cir. 1984) (pre-T.L.O. case where search of student by police officer was initiated and noting that “[t]he presence of the police officers does take this directed by school official); In re Josue T., 989 P.2d 431, 437 case purely out of the context of school officials seeking to (N.M. Ct. App. 1999) (reasonable suspicion applies where maintain an environment conducive to the educational police officer “merely assisted the school official, during the process” but concluding that “involvement of the police with school day, at the school official’s request, to protect student respect to the plaintiff is marginal” in case where plaintiff was welfare and the educational milieu”); In re Angelia D.B., 564 searched only by school officials acting on their own). The N.W. 2d 682, 688, 690 (Wisc. 1997) (reasonable suspicion consensus of all prior courts is that when police act on their standard applies where school liasion officer “became own initiative, they cannot rely on the “special needs” of involved in th[e] investigation only after school officials school officials. See F.P., 528 So. 2d at 1254; Tywayne H., requested his assistance” and worked in conjunction with 933 P.2d at 254; Thomas B.D., 486 S.E.2d at 500, 504-506. school officials). But see In re A.J.M., 617 So. 2d 1137, 1138 (Fl. Dist. Ct. App. 1993) (where police officer “directed, I would therefore reverse the district court’s decision and participated in or acquiesced in the search,” probable cause is remand the case for trial. required). Other courts have also held that where a police officer is employed by the school or school district and the search is consonant with the “special needs” of school discipline, the T.L.O. standard also applies. See People v. Dilworth, 661 N.E.2d 310, 317 (Ill. 1996). But when confronted with a search like that at issue here, initiated by law enforcement officers not under the supervisory control of school authorities, courts have uniformly held that probable cause is required. See In re F.P., 528 So. 2d 1253, 1254 (Fl. Dist. Ct. App. 1988) (exception to probable cause requirement “does not apply when the search is carried out at the behest of the police”); State v. Tywayne H., 933 P.2d 251, 254 (N.M. Ct. App. 1997) (T.L.O. standard inapplicable where search “conducted completely at the discretion of the police officers”); In re Thomas B.D., 486 S.E.2d 498, 500, 504-506 (S.C. Ct. App. 1997) (while search was of student and took place on school property, T.L.O. standard inapplicable because police were acting on their own authority and not as agents of the school). See generally Wayne R. LaFave, Search and Seizure § 10.11 (discussing three categories of cases). These cases demonstrate once again that the “special needs” doctrine is wholly inapplicable on Reynolds’s version of the facts, where police, unconnected to the institution whose “special needs” are said to justify the search,