Noelle Way v. County of Ventura Robert Brooks Karen Hanson, and Robert Ortiez, Ventura Police Officer

We must decide whether Ventura County Sheriff Bob Brooks and Deputy Karen Hanson are entitled to qualified immunity for conducting a strip search with a visual cavity inspection of Noelle Way during the booking process at a pre-trial detention facility on a misdemeanor charge of being under the influence of cocaine or methamphetamine in violation of California Health & Safety Code § 11550(a). This requires us first to decide whether a strip search with a visual cavity inspection can be justified based on Ventura County’s blanket strip-search policy allowing such a search for arrestees charged with any controlled substance offense before placement in the general jail population. The district court held that the search was unconstitutional, and we agree. However, it was not clearly established at the time of Way’s booking that strip searching persons arrested on drug charges is unreasonable. As the district court thought otherwise on this issue, we reverse.

I

On September 6, 2000, Ventura Police Officer Ortiz encountered Way at her work place, the Red Cove Bar, where she was a bartender. He observed that she had dilated pupils, a rapid pulse rate, a nervous attitude and rapid speech. Based on these observations, he suspected that she was under the influence of cocaine or methamphetamine, a misdemeanor violation of California Health & Safety Code § 11550(a), and arrested her at 2:10 A.M. A blood sample taken from Way at a hospital the night of the arrest revealed that the officer’s suspicion was incorrect.

Meanwhile, Ortiz took Way to Ventura County’s pretrial detention facility for booking. The booking policy of the Ventura County Sheriffs Department provided for a visual body cavity search of all persons arrested on fresh misdemeanor drug charges. The search must be performed by a deputy of the same sex as the detainee, and it involves no touching. The person arrested was to be searched immediately upon booking, without a waiting period for posting bail.

Pursuant to the policy, Hanson sought and obtained her supervisor’s approval to perform a body cavity search upon Way. The sole justification was that Way had been arrested for violating California Health & Safety Code § 11550(a). According to Hanson, “the nature of the charges is viewed as providing the reasonable suspicion required under the law to perform a visual strip search.”

The search involved a visual inspection of Way’s unclothed body cavities, and it took place in a private room with only Hanson present. Hanson directed Way to remove all her clothing. She then directed Way to remove her tampon and to tear it and discard it in a wastebasket. Pursuant to the search policy, Way was required to “bend forward, spread the buttocks, and cough to allow for a visual inspection of the anal area” as well as to “spread her labia at the same time to allow a check of the vaginal area.” The search yielded no contraband, weapons or drugs.

The booking process lasted 26 minutes, from 3:10 A.M. to 3:36 A.M. Within 20 minutes after the completion of the body cavity search, Way learned the amount of her bail. She was placed in a holding cell with five or six other women, where she was allowed to make phone calls. She remained there for several hours. She then posted bail, and was released without entering the jail’s general population.

Way brought this civil rights action under 42 U.S.C. § 1983 against Brooks and Hanson, as well as the County of Ventura, alleging that they violated her civil rights under the Fourth and Fourteenth Amendments by subjecting her to a body cavity search following her arrest. The parties both filed motions for summary judgment. The district court held that the search violated Way’s constitutional rights because individualized suspicion is required for arrestees who are not admitted to the general jail population. It denied qualified immunity to Brooks and Hanson on the basis of Giles v. Ackerman, 746 F.2d 614, 616-17 (9th Cir.1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n. 1 (9th Cir.1999) (en banc); Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir.1990) (as amended), implied overruling on other grounds recognized by Act Up!/Portland v. Bagley, 971 F.2d 298, 301 (9th Cir.1992); and Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir.1991), holding that a reasonable officer reviewing Ventura’s policy and the established law would have recognized that the Sheriff Department’s policy was unconstitutional because it did not further any legitimate penological interests.1 That ruling is the subject of this appeal.

II

We analyze qualified immunity using the two-step inquiry set forth in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The first step of the Saucier analysis requires us to decide whether this body cavity search violated Way’s constitutional rights. Id. at 201, 121 S.Ct. 2151. If so, “the next, sequential step is to ask whether the right was clearly established.” Id. For a right to be clearly established, its contours “ ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates the right.’ ” Id. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The protection afforded by qualified immunity “safeguards ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., ’ ” Brewster v. Bd. of Educ. of the Lynwood Unified Sch.149 F.3d 971, 977 (9th Cir.1998) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

A

Brooks and Hanson argue that the visual body cavity search violated no constitutional rights because Sheriffs Department officials are entitled to deference on jail security matters, and their interest in securing this jail during the booking process outweighs Way’s right to be free from a compulsory visual inspection of her genitalia and anus. They also contend that the Sheriff Department’s strip search policy complies with state law as set out in California Penal Code § 4030.2 Way responds that drug charges alone are insufficient to justify such an extreme intrusion, where she was merely a misdemeanor arrestee charged with being under the influence of a controlled substance, who was detained for only a few hours and was never housed with the jail’s general population.

We assess the constitutionality of a search 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, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). This requires us to weigh “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id.

The scope of the intrusion here is indisputably a “frightening and humiliating” invasion, even when conducted “with all due courtesy.” Giles, 746 F.2d at 617. Its intrusiveness “cannot be overstated.” Kennedy, 901 F.2d at 711; see also Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489-90 (9th Cir.1986) (“[T]he fact that a strip search is conducted reasonably, without touching and outside the view of all persons other than the party performing the search, does not negate the fact that a strip search is a significant intrusion on the person searched .... .” (citation omitted)); Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir.1989) (“The feelings of humiliation and degradation associated with forcibly exposing one’s nude body to strangers for visual inspection is beyond dispute.”)..

The parties agree that the search took place in a private room, behind closed doors, with no one present but Way and Hanson, and there is no issue about how it was conducted.

This leaves the question whether the intrusion was justified. We recognize the difficulty of operating a detention facility safely, the seriousness of the risk of smuggled weapons and contraband, and the deference we owe jail officials’ exercise of judgment in adopting and executing policies necessary to maintain institutional security. Wolfish, 441 U.S. at 546-47, 559, 99 S.Ct. 1861. However, this does not mean that a blanket policy is constitutionally acceptable simply by virtue of jail officials’ invocation of security concerns. Giles, 746 F.2d at 616. Rather, the policy must be “ ‘reasonably related’ to the [detention facility’s] interest in maintaining security.” Kennedy, 901 F.2d at 713 (citing Wolfish, 441 U.S. at 540, 99 S.Ct. 1861).

Brooks and Hanson failed to show any link between their blanket strip search policy and legitimate security concerns for detainees such as Way. See Giles, 746 F.2d at 617 (imposing burden on officials to demonstrate that security interests warrant the serious invasion of privacy inflicted by a strip search policy). They made only a eonclusory submission that the purpose of the search protocol is “to provide facility security and to ensure the inmate’s health and safety,” and that inmates have “sometimes” ingested drugs to evade detection. Nor did they adduce evidence of any deterrent effect on persons such as Way who are spontaneously arrested and detained temporarily at the facility for being under the influence.3 Cf. Wolfish, 441 U.S. at 559, 99 S.Ct. 1861 (noting evidence in the record documenting detainees’ attempts to secrete money, drugs, weapons and other contraband in body cavities). In effect, they ask us to take security implications on faith. This we cannot do. See Kennedy, 901 F.2d at 713 (declining to accept the Los Angeles Police Department’s justification for a blanket strip search policy as it rested only on assumptions and societal judgments without documentation of risk).

Brooks and Hanson maintain that all drug offenses inherently heighten security concerns because of the risk that persons arrested on drug charges will bring drugs with them. Perhaps with respect to other types of drug offenses — about which we express no opinion — but the record shows us nothing about this jail (or any other jail’s) experience with those arrested on § 11550(a) charges. We do not disagree that in some cases, the charge itself may give rise to reasonable suspicion; indeed, we so held in Thompson, where the felony charged was grand theft auto and the offense was “sufficiently associated with violence to justify a visual strip search.” 885 F.2d at 1447. We have also been careful to distinguish charges that involve drugs and contraband as well as violence when invalidating blanket strip search policies applied in other contexts. See Kennedy, 901 F.2d at 716 (holding unconstitutional a strip search policy applied to person arrested for stealing a roommate’s belongings, observing that “[n]o weapons, no drugs, no contraband, no violent acts of any kind were involved”); Giles, 746 F.2d at 618 (declaring unconstitutional a policy requiring that all persons booked on minor traffic offenses be strip searched, while noting that the “offense was minor and was related neither to drugs nor to weapons”). However, we have never said that all offenses of any particular nature support reasonable suspicion. To the contrary, the charge in Kennedy was for grand theft as it was in Thompson, but we held that a strip search policy was unconstitutional as applied to Kennedy because the grand theft charge there arose out of an ordinary disagreement that did not in itself pose a threat of violence in jail.

We cannot see how the charge of being under the influence of a drug necessarily poses a threat of concealing (and thereby using or trafficking) additional drugs in jail during the limited time between booking and bail, or booking and placement in the general population. If not, it was unreasonable to assume that Way harbored drugs in some cavity or other.4 “Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.” Giles, 746 F.2d at 617. Way was under the control of the arresting officer from the time she was taken into custody at work until booking. The officer perceived no indication that she was carrying drugs or contraband. Compare, e.g., People v. Wade, 208 Cal.App.3d 304, 306-07, 256 Cal.Rptr. 189, 190-91 (Cal.Ct.App.1989) (holding that a body cavity search was justified by the arresting officers’ observation of the suspect apparently trying to put something beneath his waistband). Hanson conducted a pat down search before obtaining permission for the visual cavity search, and it turned up nothing.5 Way was held with several other detainees, but was not in the facility for long and was never put into the general jail population. See Fuller, 950 F.2d at 1448 (“In determining the constitutionality of strip searches of arrestees, courts have distinguished between searches of detainees who were simply awaiting bail, and searches conducted on inmates admitted or about to be admitted to the general jail population.”); Ward v. County of San Diego, 791 F.2d 1329, 1333 (9th Cir.1986) (“In most instances the unreasonableness of a strip search conducted prior to an [own recognizance] release determination is plain.”). In these circumstances, we conclude that an arrest for being under the influence of a drug does not supply reasonable suspicion that drugs are concealed in a bodily cavity.

As there is no evidence that security concerns require strip searching all arrestees on all drug offenses before placement in the general jail population, and none that all persons arrested for being under the influence of a drug are likely to have concealed more drugs in a bodily cavity, the Sheriff Department’s blanket policy cannot be a proxy for reasonable suspicion. There was no individualized suspicion that Way concealed drugs in a bodily cavity. Therefore, subjecting her to a strip search with visual cavity inspection offended her constitutional right to be free of an unreasonable search.

B

Having determined that Way’s constitutional rights were violated, the remaining question is whether it was clearly established at the time of the search that the search was unconstitutional. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. “If the law did not put [Brooks and Hanson] on notice that[their] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Id. at 202, 121 S.Ct. 2151.

We had held prior to Way’s search that performing a strip search with visual cavity inspection before determining whether the person was eligible for release on his own recognizance could not be justified based on a blanket policy of subjecting all minor offense arrestees to a strip search, Ward, 791 F.2d 1329; that a visual body cavity search of a person arrested on an offense that did not involve violence could not be justified by a blanket policy of subjecting all those arrested for felonies to such a search, Kennedy, 901 F.2d 702; and that a strip and body cavity search of all felony arrestees could not be justified based on the jail’s blanket search policy regardless of the crime with which they were charged, Fuller, 950 F.2d 1437. However, we had never previously addressed the constitutionality of a body cavity search policy premised on the nature of this or any other drug offense. More importantly, we had held that the nature of the offense alone may provide reasonable suspicion, Thompson, 885 F.2d at 1447, and twice pointed to charges involving drugs, contraband and violence as the kind of offense that might give rise to reasonable suspicion. Kennedy, 901 F.2d at 716; Giles, 746 F.2d at 618. In these circumstances, we cannot conclude that a reasonable officer would necessarily have realized that relying on a Department policy that excepted arrestees being held on controlled substance offenses from the general prohibition on strip searches, and subjecting Way to a strip search with visual cavity inspection pursuant to it, was unconstitutional.

The district court came to a different conclusion by analogy to the Tenth Circuit’s decision in Foote v. Spiegel, 118 F.3d 1416 (10th Cir.1997). There, a highway patrol officer arrested Foote for being under the influence of marijuana. Id. at 1420. She was strip searched when booked at the county jail and was released without being placed in the general jail population. Id. at 1421. The court held that the search was unconstitutional, and that the officers were not entitled to qualified immunity. However, Foote’s qualified immunity analysis turned on the fact that before the Foote search was conducted, Cottrell v. Kaysville City, 994 F.2d 730, 734-35 (10th Cir.1993), clearly established that merely being arrested for driving under the influence of drugs does not justify a strip search. Foote, 118 F.3d at 1421. Our law was not so clear (until now), hence our reluctance to hold Brooks and Hanson personally liable for damages.

We therefore conclude that subjecting Way to a strip search with visual cavity inspection during the booking process on a misdemeanor charge of being under the influence of a drug was not justified by the jail’s blanket policy of strip searching all those arrested on charges involving a controlled substance. Undocumented security needs of the jail facility do not outweigh the invasion of Way’s personal rights. Nor is such an intrusive search warranted solely on account of the nature of the charge in this case, as being under the influence of a drug does not necessarily indicate that the person has concealed more drugs in a body cavity. This said, a reasonable official in the position of Brooks and Hanson would not have understood that following the jail’s policy violated Way’s rights because the unconstitutionality of the search they conducted was not clearly established at the time.

AFFIRMED IN PART; REVERSED IN PART.