Sharon Brown v. Polk County, Wisconsin

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 13, 2020
• Docket: 19-2698
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-2698 SHARON LYNN BROWN, Plaintiff-Appellant, v.

POLK COUNTY, WISCONSIN, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:18-cv-391 — William M. Conley, Judge. ____________________

ARGUED APRIL 28, 2020 — DECIDED JULY 13, 2020 ____________________

Before EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Sharon Brown was a detainee at the Polk County Jail who underwent a physical search of her body cavities. The institution had a written policy authorizing such a search to be conducted by medical personnel when there was reasonable suspicion to believe an inmate was in- ternally hiding contraband. Fellow inmates had reported that Brown was concealing methamphetamine inside her body, and that prompted jail staff to invoke the policy. Officers took 2 No. 19-2698

Brown to a hospital, where a doctor and nurse inspected both her vagina and rectum. The search revealed no drugs. Brown sued Polk County and several jail officials under 42 U.S.C. § 1983 alleging a violation of her Fourth Amendment rights. The defendants moved for summary judgment, and the district court granted the motion, concluding that the de- fendants had reasonable suspicion that Brown was concealing contraband, their suspicion justified the cavity search, and the ensuing search was reasonable. We agree and affirm. I Sharon Brown landed in the Polk County Jail in May 2017 after an arrest for shoplifting. The record does not reveal whether a judge ordered the detention or whether Brown was held while awaiting an initial presentment in court. The next day, Jacqueline Duke, an inmate who shared her housing unit, told Correctional Officer Steve Hilleshiem that Brown was hiding “a large amount” of methamphetamine in a body cavity. Officer Hilleshiem had little background infor- mation—he did not know Duke or Brown, what either inmate was in for, or whether they had any relationship—but he re- layed the allegation to Nurse Donna Johnson, who was more familiar with Duke. Nurse Johnson’s prior dealings with Duke had left her un- trusting of her word, so she decided to consult Amy Nelson, who she considered to be a more reliable inmate living in the unit. Nelson corroborated Duke’s accusation with more de- tail. She said Brown had told other inmates that she was hid- ing between a quarter gram and an “eight ball”—which amounts to about 3.5 grams—of methamphetamine inside her body. According to Nelson, the drugs were not sealed No. 19-2698 3

properly, so Brown had been looking for somewhere else to hide them. Nelson further reported that she had seen Brown use the bathroom multiple times and that other inmates were worried. Nurse Johnson discussed the situation with Officer Hil- leshiem and other staff members, and the group collectively decided to request a cavity search. Polk County has a policy that allows a detainee’s body cavities to be searched when an officer has “reasonable grounds to believe that the person is concealing weapons, contraband, or evidence in a body cav- ity, or otherwise believes that the safety and security of the jail would benefit from a body cavity search.” The policy defines “body cavity search” as “an inspection and penetration of the anal or vaginal cavity of a person that is conducted manually, by means of an instrument,” or “in any other manner.” It fur- ther provides that the search must “be performed only by medical personnel licensed in the State of Wisconsin.” Officer Hilleshiem contacted Chief Deputy Wes Revels, the jail’s ad- ministrator, for approval and expressed his view that officials had gathered enough evidence to justify a search under the policy. Based on those representations, Chief Deputy Revels authorized the search. Officers took Brown to a local hospital, where a doctor and nurse performed the search in a private room without any of- ficers present. The doctor first administered an ultrasound of Brown’s abdomen. The procedure revealed no contraband. He then conducted a vaginal exam by inserting a speculum to spread and hold open the vaginal walls to see inside. This exam was brief and similar to a routine pelvic exam or a pap smear. The rectal exam began in much the same manner—the doctor used a speculum to widen the anus and peer inside. 4 No. 19-2698

But during the procedure, the doctor’s headlamp failed. With the speculum remaining in her anus, Brown had to wait while the doctor looked for an alternate light source. In the end, the search yielded no contraband. The parties dispute how long these exams lasted. Brown testified that the ultrasound took about five minutes and the vaginal exam “didn’t take long at all.” As for the rectal exam, Brown did not say how long it lasted but explained that when the doctor’s headlamp failed, “it seemed like it took forever for them to find a light that worked.” For their part, the de- fendants point to the testimony of a police officer who trans- ported Brown from the jail to the hospital. He estimated that “under a minute” elapsed between the time the medical per- sonnel entered the room and when Brown left. Brown sued the County, Officer Hilleshiem, and Chief Deputy Revels. She contended that the Fourth Amendment requires jail officials to get a warrant based on probable cause before ordering a body cavity search and that the defendants’ failure to do so violated her constitutional rights. And because the jail’s express policy permitted that practice, she sought to hold the County liable under Monell v. Department of Social Services, 436 U.S. 658 (1978). The defendants successfully moved for summary judg- ment. The district court concluded that the Fourth Amend- ment requires reasonable suspicion to justify the kind of search Brown underwent and that the officers had just that. The court also found the search to have been conducted rea- sonably, as it was performed by medical professionals in a private, hygienic location and lasted only a short time. Find- ing no constitutional violation, the court concluded that the Monell claim failed too. No. 19-2698 5

Brown now appeals. II Incarceration curbs constitutional protections but it does not extinguish them. See Turner v. Safley, 482 U.S. 78, 84 (1987). Among a pretrial detainee’s retained but limited rights is the Fourth Amendment’s guarantee of “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” The inspection of Brown’s body cavities was a search to which the Fourth Amendment applies, and the de- fendants are wise to leave that undisputed. See Florence v. Bd. of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012) (applying the Fourth Amendment to a strip search of a pre- trial detainee). But the Fourth Amendment does not prohibit all searches, only unreasonable ones. See Maryland v. King, 569 U.S. 435, 446–47 (2013). We evaluate reasonableness by balancing “the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In doing so, we consider “the scope of the particular intrusion, the manner in which it is conducted, the justifica- tion for initiating it, and the place in which it is conducted.” Id. Summary judgment is appropriate only if the defendants have shown that no material facts are in dispute and they are entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a). We review de novo the district court’s grant of summary judgment, viewing all facts in the light most favorable to Brown and drawing all reasonable inferences in her favor. See Hackett v. City of S. Bend, 956 F.3d 504, 507 (7th Cir. 2020). 6 No. 19-2698

A Our usual starting point for the reasonableness inquiry is whether government officials had “some quantum of individ- ualized suspicion” necessary to justify the search. King, 569 U.S. at 447 (quoting United States v. Martinez–Fuerte, 428 U.S. 543, 560–61 (1976)). But individualized suspicion is not an “ir- reducible” constitutional mandate. Id. Suspicionless searches are permitted in limited circumstances, like when they serve “special needs, beyond the normal need for law enforce- ment.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Indeed, twice the Supreme Court has confronted circum- stances under which the special context of a jail—with the unique challenges it presents—allows for suspicionless searches of pretrial detainees’ body cavities. In Bell v. Wolfish, the Court upheld the constitutionality of a jail policy requiring all inmates to undergo a strip search, including a visual examination of their body cavities, every time they returned from a contact visit. 441 U.S. at 558–60. In so holding, the Court emphasized the government’s interest in performing such searches, observing that “[a] detention fa- cility is a unique place fraught with serious security dangers” and “[s]muggling of money, drugs, weapons, and other con- traband is all too common an occurrence.” Id. at 559. Even pit- ted against the significant privacy invasion that these searches posed to the inmates, the gravity of the jail’s security interests nevertheless tipped the scale away from a particularized sus- picion requirement and instead counseled in favor of a broader, categorical rule authorizing visual strip searches fol- lowing contact visits. See id. at 560. The Supreme Court reinforced this holding in Florence v. Board of Chosen Freeholders of the County of Burlington, rejecting No. 19-2698 7

a Fourth Amendment challenge to a jail policy that authorized an invasive search, which again included visual inspections of body openings, during the intake process for pretrial de- tainees. 566 U.S. at 324, 339. In Florence, too, the Court under- scored the acute threat of contraband in the jail setting. See id. at 332–34 (explaining how drugs can embolden aggression, contraband can be used as underground currency, and pro- hibited items can become weapons). It therefore concluded that the search procedure “struck a reasonable balance be- tween inmate privacy and the needs of the institutions.” Id. at 339. The search in this case does not similarly belong in the “closely guarded category of constitutionally permissible sus- picionless searches.” Chandler v. Miller, 520 U.S. 305, 309 (1997). In no way do Bell and Florence declare detainees’ bod- ies open for search at any time and under any circumstance. Nor do the defendants urge the adoption of any new broad rule authorizing searches of pretrial detainees. Put another way, the “touchstone” of the controlling Fourth Amendment inquiry remains reasonableness. King, 569 U.S. at 448. And in the circumstances before us here, reasonableness requires a finding of particularized suspicion. A core purpose of the Fourth Amendment’s reasonable- ness standard is to constrain government officials’ discretion and thus “safeguard the privacy and security of individuals against arbitrary invasions.” See Delaware v. Prouse, 440 U.S. 648, 654 (1979) (citations omitted). The searches at issue in Bell and Florence concerned policies that applied broadly to all de- tainees following contact visits and upon their entry into a fa- cility. See 441 U.S. at 558 (evaluating a policy subjecting in- mates to strip search “after every contact visit with a person 8 No. 19-2698

from outside the institution”); 566 U.S. 318 at 324 (considering a policy making “all arriving detainees” subject to search). That general applicability both advanced important institu- tional interests (of preventing contraband) and protected the inmates from being singled out for a search at the whim of a guard, even without the safeguard of an individualized sus- picion requirement. See King, 569 U.S. at 447–48 (explaining that there is no need for individualized suspicion where “all arrestees” were subject to the search). Brown was not searched as part of a practice that applied to everyone housed in the Polk County Jail. She alone was se- lected for a search, and a quite invasive one at that. In these circumstances, the search must be supported by reasonable suspicion. See New Jersey v. T.L.O., 469 U.S. 325, 342 n.8 (1985) (“Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests im- plicated by a search are minimal and where other safeguards are available to assure that the individual’s reasonable expec- tation of privacy is not subject to the discretion of the official in the field.” (internal quotation marks omitted)). That conclu- sion finds corroboration in some of our prior cases that have required reasonable suspicion for individualized visual strip searches conducted after an arrest or during the booking pro- cess. See United States v. Freeman, 691 F.3d 893, 901 (7th Cir. 2012); Kraushaar v. Flanigan, 45 F.3d 1040, 1045 (7th Cir. 1995). Brown would have us adopt a higher standard of suspi- cion and require a warrant based on probable cause. For sup- port, she points to Schmerber v. California, 384 U.S. 757 (1966) and Winston v. Lee, 470 U.S. 753 (1985), cases addressing phys- ical—as opposed to visual—searches of people’s bodies un- dertaken to obtain evidence. Schmerber involved a warrantless No. 19-2698 9

blood draw performed on a hospitalized man who had just been arrested for driving while intoxicated, see 384 U.S. at 758–59, and Winston concerned a surgery to retrieve a bullet from a detainee’s body to be used as evidence in a prosecution for robbery, see 470 U.S. at 755. Neither implicated jail secu- rity, the interest that weighs so heavily in the balance of the search here. Bell and Florence underscore the necessity of a jail’s ability to search those under its care for contraband, for the protec- tion of all within its walls. Our conclusion that the precise searches at issue in those cases differ from the one here in the scope of discretion does not in any way undermine the im- portance of these interests. They apply with equal force and distinguish Brown’s search from the ones in Schmerber and Winston. A search conducted for the safety of the jail is one that furthers special needs beyond the normal need for law enforcement, and “the public interest is such that neither a warrant nor probable cause is required.” King, 569 U.S. at 447 (quoting Maryland v. Buie, 494 U.S. 325, 331 (1990)). Brown correctly observes that the search she underwent was more invasive because it was not just visual but also in- volved a physical intrusion into the most private parts of her body. No doubt she is right on that score. But given the heft of the security interest at stake, the invasion to her privacy was not so much greater that it pushes the threshold suspicion requirement into probable cause. The Fourth Amendment re- quired Polk County jail officials to have only reasonable sus- picion that she had concealed contraband inside her body be- fore moving forward with the search. And they did. Officer Hilleshiem and Chief Deputy Revels relied on tips from both inmates Duke and Nelson, and a 10 No. 19-2698

credible tip from a reliable informant can support reasonable suspicion. See Adams v. Williams, 407 U.S. 143, 146–47 (1972). Nelson’s information in particular bore several signs of relia- bility—Nurse Johnson considered her to be credible and her account was detailed, based on firsthand observations, and re- counted recent events. See United States v. Cherry, 920 F.3d 1126, 1133–34 (7th Cir. 2019). Chief Deputy Revels authorized the search in reliance on Officer Hilleshiem’s representation that the evidence was sufficient to support a search under the County’s policy, so the collective-knowledge doctrine im- putes knowledge of the reported information to him. See United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010). This leaves no issue of fact as to the existence of reasonable suspicion. B The inquiry does not end there. That the defendants met the requisite level of individualized suspicion is just one com- ponent of the search’s reasonableness. We must go on to con- sider the scope of the search, the manner in which it was con- ducted, and the place in which it occurred. See Bell, 441 U.S. at 559. “Urgent government interests are not a license for in- discriminate police behavior.” King, 569 U.S. at 448. We strain to conceive of a search more invasive than the one performed on Brown. Even a visual scan of a bare body is an extraordinary interference with privacy. See Bell, 441 U.S. at 558–60; Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D. Wis. 1979), aff’d and adopted, 620 F.2d 160, 160–61 (7th Cir. 1980) (de- scribing “the visual inspection of the anal and genital areas” as “demeaning, dehumanizing, undignified, humiliating, ter- rifying, unpleasant, embarrassing, repulsive, signifying deg- radation and submission”). In Brown’s case, it was not only No. 19-2698 11

someone visually inspecting her naked body and closely ex- amining the most private parts but someone who did so by making physical contact, prying open her vagina and anus. A privacy invasion of that magnitude must be carried out with careful attention to limiting its scope and minimizing the intrusion. The defendants did that. The search was performed pursuant to a written policy with defined procedures that re- quired reasonable suspicion and approval from the jail’s chief deputy. So, too, was it conducted in a medical setting by li- censed medical professionals. See Sanchez v. Pereira-Castillo, 590 F.3d 31, 44 (1st Cir. 2009) (observing that doctors conduct- ing search in a hygienic setting weighed in favor of reasona- bleness). And Brown was afforded some measure of privacy, undergoing the search outside the presence of any officers. Cf. Campbell v. Miller, 499 F.3d 711, 718 (7th Cir. 2007) (finding unreasonable a strip search where “the police inexplicably did not even afford [the arrestee] the dignity of doing it in a private place”). The search was also completed within a reasonable timeframe. By Brown’s own account, the ultrasound and vag- inal exam proceeded swiftly. The untimely failure of the doc- tor’s headlamp added some length to the ordeal, minutes that surely felt like an eternity to Brown. But the accidental delay cannot be attributed to the defendants. And the only evidence we have of the total duration of the search, all exams com- bined, comes from the transporting officer, who testified that it was very brief. With these observations, we do not prescribe constitu- tional mandates or minimums. Other cases are sure to present different facts showing different levels of care—in some cases more, in others less—taken by jail officials in authorizing and 12 No. 19-2698

executing a challenged search. The reasonableness inquiry is fact intensive. For today’s case we conclude no more than that the factors present here would leave a rational jury with no option but to find the search reasonable. III Nobody disputes the invasiveness of the search that Brown underwent. Her body was laid bare not just for visual inspection but for physical prodding, an intrusion of privacy to the highest degree. Her incarcerated status did not strip her of the Fourth Amendment’s protection. Nor, however, does the Fourth Amendment ignore the realities of the jail setting and its attendant security risks. The balance of the intrusion to Brown and the weight of jail safety concerns comes out to a requirement of reasonable suspicion to justify the search. A rational jury could reach no other conclusion than that the de- fendants complied with the threshold suspicion requirement and executed the search reasonably, meaning there was no constitutional violation. That finding defeats the Monell claim too. See Hall v. City of Chi., 953 F.3d 945, 955 (7th Cir. 2020). For these reasons, we AFFIRM.