Spear v. Sowders

71 F.3d 626, 1995 WL 747102

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 19, 1995
• Docket: No. 93-5528
• Status: Published

Opinions

BOGGS, J., delivered the opinion of the court, in which MERRITT, C.J., KENNEDY, MILBURN, NELSON, RYAN, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. JONES, J. (pp. 634r-36), delivered a separate opinion concurring in part and dissenting in part, in which MARTIN, DAUGHTREY, and MOORE, JJ., joined.

BOGGS, Circuit Judge.

Tina Spear¹ wanted to visit a Kentucky prison inmate. Believing that she could be bringing drugs into the prison, the prison staff refused to allow her to visit unless she submitted to a strip and body cavity search, and refused to allow her to leave without a similar search. Spear sued the various defendants (collectively referred to as “Sow-ders”) under 42 U.S.C. § 1983 and now appeals a grant of summary judgment to the defendants on the ground of qualified immunity. A panel of this court reversed the grant of summary judgment. The court vacated that decision and placed the matter on the en bane calendar. Spear v. Sowders, 33 F.3d 576 (6th Cir.1994). For the reasons set out more fully below, the judgment of the district court is reversed.

I

On October S, 1990, Corrections Officer Brock, an employee at Northpoint Training Center, received information from a confidential prison informant that Daniel Wade, an inmate at NTC, “was receiving drugs every time a young unrelated female visitor visited.” This informant had given reliable information on at least one previous occasion, which resulted in the termination of a prison guard for engaging in a romance with an inmate.

Wade had a history, stretching over a period of years, of drug offenses. On February 24, 1987, guards had found Wade with a marijuana cigarette in his possession. Fourteen months later, on May 8, 1988, guards again found Wade with two marijuana cigarettes. The next day, guards found Wade with a dime bag of marijuana. On March 29, 1989, guards again found Wade possessing marijuana, this time two cigarettes. Finally, on April 27, 1990, guards found Wade with four Darvoeet pills. Prison medical authorities had prescribed these pills for Wade. However, when the medical staff distributed a pill to him, he would hold the pill in his mouth without swallowing it. He eventually accumulated four pills through this ruse.

Finally, a review of Wade’s visiting record revealed that Tina Spear had been his only unrelated female visitor. No records are available with respect to visitors before 1990. On October 12, 1990, Sowders authorized a strip and body cavity search of Spear during her next visit.

Two and one-half months later, on Christmas Day, 1990, Tina Spear went to NTC to visit Daniel Wade. Upon her arrival, NTC officials informed her that she would not be permitted to visit unless she submitted to a strip and body cavity search and a search of her clothing, purse, poeketbook and car. Spear alleges, and we accept as true for purposes of summary judgment, that NTC officials told her that if she did not consent to the searches, she would be detained while they obtained a warrant, and that she would thereafter be barred from NTC. Wishing to see Wade on Christmas, she consented to the search.

A female NTC nurse conducted the strip and body cavity search with another female officer present. They had her remove her clothing and then visually inspected her body, including her vagina and her anus, and they further searched both those body cavities by inserting their fingers. NTC officials also searched Spear’s clothing, purse, and poeketbook. They also searched her car, located in the NTC parking lot. Spear claims the search embarrassed, humiliated, and demeaned her. None of these searches revealed the presence of any contraband, and Spear proceeded to visit Wade.

Spear states that she has never possessed contraband at NTC, has never attempted to introduce contraband there, and has never given prison officials any cause to believe that she would attempt to introduce contraband. Also, she states that she has no criminal record of any kind.

The defendants filed a motion to dismiss, arguing that qualified immunity protected them from suit. Because the parties referred to material outside the pleadings, the judge treated the motion as one for summary judgment under Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(b). The district court acknowledged that Spear had a clearly established constitutional right not to be strip-searched unless the officials had reasonable suspicion that she was attempting to smuggle contraband into the prison. However, the court found that based on Wade’s history of prior drug activity in prison and based upon the tip from the confidential informant, the defendants did in fact have “reasonable suspicion to target the Plaintiff for a strip search and that Plaintiffs constitutional rights were not violated by this strip and body cavity search.” J.A. at 80. Consequently, the court concluded that qualified immunity protected Sowders from suit.

II

Courts have recognized a search such as the one Spear endured as “an embarrassing and humiliating experience.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). Nonetheless, the Fourth Amendment does not afford a person seeking to enter a penal institution the same rights that a person would have on public streets or in a home. It is clear that a prisoner does not have a due process right to unfettered visitation. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (It cannot “seriously be contended, in light of our previous an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause.”). See also Sandin v. Conner, - U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (limiting the ability of prison regulations to create liberty interests). A fortio-ri, a citizen simply does not have a right to unfettered visitation of a prisoner that rises to a constitutional dimension. In seeking entry to such a controlled environment, the visitor simultaneously acknowledges a lesser expectation of privacy. Blackburn v. Snow, 771 F.2d 556, 565 (1st Cir.1985). The Supreme Court itself has pointed out that the “unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country,” Block v. Rutheford, 468 U.S. 576, 588-89, 104 S.Ct. 3227, 3234, 82 L.Ed.2d 438 (1984), and that “[a] detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs weapons, and other contraband is all too common an occurrence.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

This conclusion is not the result of some great leap of logic. Prisons are dangerous and filled with law-breaking because that is where the criminals are. Even the most secure prisons are dangerous places for inmates, employees, and visitors. See United States v. Fountain, 768 F.2d 790, modified, 777 F.2d 345 (7th Cir.1985) (describing murders of inmates and guards in “the Control Unit of the federal penitentiary at Marion, Illinois-the maximum-security cell block in the nation’s maximum-security federal prison”), cert. denied, 475 U.S. 1124, 106 S.Ct. 1647, 90 L.Ed.2d 191 (1986); Gometz v. Henman, 807 F.2d 113 (7th Cir.1986) (describing the same murders as well as listing additional murders by members of the “Aryan Brotherhood” prison gang). Therefore, the Court has consistently “[struck] the balance in favor of institutional security,” Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393 (1984), and accorded great weight to the “professional expertise of corrections officials.” Bell, 441 U.S. at 548, 99 S.Ct. at 1879.

The natural extension of this principle is that prison authorities have much greater leeway in conducting searches of visitors. Visitors can be subjected to some searches, such as a pat-down or a metal detector sweep, merely as a condition of visitation, absent any suspicion. However, because a strip and body cavity search is the most intrusive search possible, courts have attempted to balance the need for institutional security against the remaining privacy interests of visitors. Those courts that have examined the issue have concluded that even for strip and body cavity searches prison authorities need not secure a warrant or have probable cause. However, the residual privacy interests of visitors in being free from such an invasive search requires that prison authorities have at least a reasonable suspicion that the visitor is bearing contraband before conducting such a search.

We agree with the district court that the law was clearly established by the time of the search in this case that the Fourth Amendment required reasonable suspicion before authorizing a body cavity search. Three circuits had reached this conclusion in the mid-1980s. See Blackburn, 771 F.2d at 564-66; Thome v. Jones, 765 F.2d 1270,1277 (5th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 1199, 89 L.Ed.2d 313 (1986); Hunter, 672 F.2d at 674. This Circuit first implied that we agreed with this view in dicta in Long v. Norris, 929 F.2d 1111, 1116 (6th Cir.) (“searches of prison visitors during 1984 and 1985 without at least a reasonable suspicion violated clearly established law”), cert. denied, 502 U.S. 863, 112 S.Ct. 187, 116 L.Ed.2d 148 (1991), and then, in Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992), we unequivocally held that by 1988 any reasonable prison official should have known that a visitor had a clearly established right not to be strip searched without reasonable suspicion. The district court applied this standard, and neither party disputes its viability. We see no reason to revisit the issue in this context.

The issue is whether Sowders had a reasonable suspicion, at the time of Spear’s visit, that she would be smuggling contraband into the prison. Reasonable suspicion does not mean evidence beyond a reasonable doubt, or by clear and convincing evidence, or even by a preponderance of the evidence. Reasonable suspicion is not even equal to a finding of probable cause. Rather, reasonable suspicion requires only specific objective facts upon which a prudent official, in light of his experience, would conclude that illicit activity might be in progress.²

It is instructive to compare the current case with this circuit’s recent opinion in Daugherty v. Campbell, 33 F.3d 554 (1994). In that ease, the total information relied upon consisted of two letters that the warden received warning that the visitor was smuggling drugs. Id. at 555. However, the warden had no knowledge of who had sent the letters. One was literally anonymous and the other was signed with a fictitious name. Ibid. In addition, a correctional officer made the eonelusory statement to the warden that the visitor was smuggling drugs, but no reasons of any sort were given for this conclusion. Id. at 556. Finally, the inmate suspected of being the recipient had no history of drug offenses. Id. at 557.

By contrast, in this case Sowders did not rely on an anonymous informant or a prison guard’s unsubstantiated hunch. Instead he relied on a confidential informant,³ who had provided accurate and important information on at least one prior occasion. The supposed recipient of the drug transfers was a man who had an extensive history of drug possession violations in prison. On at least four occasions, someone had smuggled those drugs into the prison at some point, since we assume that facilities for marijuana cultivation do not exist within the NTC. Finally, the informant said that the supplier of the drugs was a “single unrelated female.” A review of the visiting records demonstrated that this information, if accurate, could implicate only Spear.

While there was sufficient countervailing evidence that the likelihood of Spear being a drug smuggler was not proven beyond a reasonable doubt nor even to the extent of probable cause, that is not the standard here. There was considerably more evidence than in Daugherty, and it would have indeed been unreasonable for authorities not to have been suspicious in this situation. Sowders need only show that his suspicion was reasonable under the circumstances.

The Supreme Court has examined the definition of reasonable suspicion on several occasions. Each time, the Court has made it clear that “[rjeasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990) (emphasis added).

Therefore, in light of the evidence found in the record, the district court correctly concluded that there was reasonable suspicion to conduct the search.

Ill

The district court did err in its resolution of Spear’s allegation that NTC officials strip searched her without allowing her the opportunity to leave. The clearly established rights that the defendants may have violated, taking the view of the facts most favorable to the plaintiff, are the right not to be detained without probable cause, and the right not to be searched for administrative reasons without having a chance to refuse the search and depart.

Specifically, Spear claims that NTC officials told her that she could either consent to the search, or that she would be detained while they secured a warrant and then she would be forcibly searched if necessary. The prison authorities claim that they never said any such thing. As this is a motion for summary judgment, we must draw all factual inferences in favor of Spear. We assume, then, that the prison authorities told Spear she was not free to leave. Therefore, the issue is whether the detention of Spear absent probable cause violated her clearly established rights.

As we have noted, because of the need for prison security, visitors do not have the same right of unimpeded access to prisoners, without government scrutiny, that they would have to persons in society outside prison. Bell, 441 U.S. at 559, 99 S.Ct. at 1884-85; Hudson, 468 U.S. at 527, 104 S.Ct. at 3200-01. However, just as with the special circumstances that justify an electronic search by a metal detector at an airport, see, e.g., United States v. Davis, 482 F.2d 893 (9th Cir.1973), the government’s power to intrude depends on the fact that the person insists on access. There is no authority supporting the proposition that prison officials, relying on their special power to conduct administrative searches, may search a visitor who objects, without giving the visitor the chance to abort the visit and depart. Here, Spear alleges that prison officials detained her, that such detention was without probable cause, and that they told her she would not be permitted to depart without consenting to a search. These circumstances, if proven true, would vitiate her consent and would amount to a violation of her constitutional right to be free from being detained absent probable cause. While a person may consent to less invasive searches merely by entering the facility, we do not think that a person consents to a strip and body cavity search by simply appearing at a visiting center. Instead, the same logic that dictates that such a search may be conducted only when there is reasonable suspicion also demands that the person to be subjected to such an invasive search be given the opportunity to depart.

IV

Finally, Spear claims that NTC officials searched her automobile without probable cause. While she consented, she alleges she consented under the same threat that she would not be permitted to leave. Again the district court incorrectly granted summary judgment, based on qualified immunity, to the defendants. However, the search of the ear involves a closer question.

Here again, the dispute over crucial facts precludes summary judgment. Sowder claimed in the en banc petition and at oral argument that there is a sign at the entrance to the facility that makes it clear that automobiles are liable to be searched, and that prisoners have access to the visitor parking lot. The record contains copies of regulations governing the search of automobiles. The record does not reveal the exact scope of the search of the car or whether a sign was, in fact, visible. We cannot say, absent the resolution of these factual questions, whether the search was unreasonable and, if so, whether the law had been clearly established at the time of the search.

The Constitution protects an individual’s privacy interest in an automobile. California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068, 85 L.Ed.2d 406 (1985). The same Fourth Amendment standard applies whatever the area searched. See California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). Therefore, if Sowder conducted the search for traditional law enforcement purposes he would have needed probable cause. See Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1153-54, 94 L.Ed.2d 347 (1987).

However, we have made it clear that a government official does not need probable cause to conduct every search and that a prison visitor search fails into a special category. We cannot say that the Constitution requires individualized suspicion to search a car on prison grounds, particularly if the visitor has been warned that the car is subject to search. While the government has demonstrated individualized suspicion in most of the Supreme Court cases that have upheld warrantless searches, nevertheless the Supreme Court has made it clear that individualized suspicion is not a constitutional prerequisite in all cases. See United States v. Martinez-Fuerte, 428 U.S. 548, 560-61, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976) (while “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure [the] Fourth Amendment imposes no irreducible requirement of such suspicion”); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 624, 109 S.Ct. 1402, 1417, 103 L.Ed.2d 639 (1989) (“[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unconstitutional”); Vernonia School Dist. 47J v. Acton, — U.S. -, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (upholding random drug tests of student-athletes absent individualized suspicion).

In Romo v. Champion, 46 F.3d 1013 (10th Cir.1995), the court held that no individualized suspicion was necessary to search a car at a roadblock on a public road leading to a prison. While the prison officials claimed that the roadblock was on prison property, the court assumed, because of the allegations in the complaint, that the roadblock was on the road itself, at a point where the only destination would be the prison. In Romo, prison officials conducted a search that included the opening of the trunk, a sweep of the interior and a sweep with dogs. The court held that “[requiring reasonable suspicion for strip searches of prison visitors is not inconsistent with our holding that the routine preliminary search of plaintiffs and their vehicle, although executed without individualized suspicion, was reasonable.” Romo, 46 F.3d at 1019.

Obviously, while unpleasant, the nature of an automobile search is far less intrusive than a strip and body cavity search, and the interest in preventing the introduction of contraband remains as great. We cannot say that Spear had a clearly established right to enter a prison facility with a sign notifying her that her car would be searched, place her ear in an area to which prisoners have access, enter the prison facility and then turn around and seek to leave without submitting to a search. Nor can we even say that the search of her car absent any suspicion was per se unreasonable. Because the exact contours of the search are impossible to determine from the record before us, summary judgment is inappropriate.

We agree with the point made by Spear at oral argument that prevention is the goal of an administrative search, and that is why officials search people when entering a place, for example a plane, or prison, or courthouse, and not when leaving. But it does not follow that once on the plane, or in the courthouse, or as here, on the grounds of the NTC, the administrative search exception completely disappears.

The reasoning behind this is simple in the context of a prison search. Objects hidden in a body cavity must be dislodged before transfer to a prisoner, something that could not have been done absent a contact with the prisoner. Therefore, a condition of the right to search a person is the possibility of the person coming in contact with the prisoner. However, an object secreted in a car, to which prisoners may have access, is a potential threat at all times after the car enters the grounds.

Of course it may prove true that there is no sign notifying entrants that their car may be searched, or the cars may be in a secure area to which no prisoner has access, or NTC officials may have subjected the ear to such a lengthy and intrusive search that it was unreasonable. To resolve the interplay between these various factors, a determination of disputed questions of fact must be made. Therefore, the issue of the search of the car was inappropriate for resolution on summary judgment.

V

The judgment of the district court is AFFIRMED in part and REVERSED in part. The matter is REMANDED to the district court for proceedings consistent with this opinion.

1 . Tina Spear is the name used in the complaint and throughout the record in this case. Appellant’s brief to the En Banc Court states that Appellant's name is actually Tina Spears, but for the sake of consistency we use the name as given in complaint.

2 . In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court stated that the test was whether an officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” In Terry, reasonable suspicion on a public street, where a citizen has far broader Fourth Amendment interests than those present when visiting a prison, amounted to the fact that three people walked up and down a street repeatedly, looked into a store window repeatedly, and spoke amongst themselves. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3 . Spear makes much of the fact that the confidential informant was a convicted felon. However, a criminal conviction is a prerequisite for the role of prison informant.