Lovell v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TAMEIKA LOVELL,

Plaintiff,

MEMORANDUM AND ORDER

-against-

18-CV-1867 (KAM)

HELEN PARKER, ET AL.,

Defendant.

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MATSUMOTO, United States District Judge:

Plaintiff Tameika Lovell (“Ms. Lovell”) brought this

action against Defendants Stephen T. Twarowski ("Defendant

Twarowski”), Helen Quanasia Parker ("Defendant Parker”), and

Barbara Muñoz ("Defendant Muñoz”), in their personal capacities

(collectively, “Defendants”), for alleged constitutional

violations of the Fourth and Fifth Amendment pursuant to Bivens

v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971). Defendants have moved for summary judgment

on all of Ms. Lovell’s claims.1 For the reasons set forth below,

Defendants’ motion for summary judgment is granted.

1 See ECF Nos. 66-1 Def. Mem. in Supp. for Summ. J; 66-3 Pl. Opp’n. to Summ.

J.; 66-5 Def. Reply in Supp. for Summ. J.

BACKGROUND

In the instant action, Ms. Lovell alleges that she was

selected for a “pat-down, secondary, and body cavity search due

to her race and gender” and without reasonable suspicion by

Defendant Parker, as witnessed by Defendant Muñoz, and as

authorized by Defendant Twarowski. (See ECF No. 66-3, Pl.

Opp'n. to Summ. J. at 4.) The Court has taken the relevant

facts from the parties’ declarations, depositions, exhibits, and

from the parties’ respective Rule 56.1 statements of facts.2

Defendants’ counsel Shana A. Priore declares that “true and

correct copies of relevant portions of the deposition

transcripts” of Ms. Lovell and Defendants Parker, Muñoz, and

Twarowski are contained in the joint deposition transcript

2 See ECF Nos. 62, Def. 56.1 Statement; 62-1, Def. Ex. B, OIG Twarowski

Interview 12/13/16; 62-2, Def. Ex. C, OIG Parker Interview 4/12/17; 62-3,

Def. Ex. E, OIG Muñoz Interview 12/16/16; 62-4, Def. Ex. F, CBP Personal

Search Handbook; 62-5, Def. Ex. I, Decl. of Stephen Twarowski; 62-6, Def. Ex.

J, DHS Personal Statement of Barbara Muñoz 12/13/16; 62-7, Def. Ex. K, DHS

Personal Statement of Helen Parker 4/12/17; 62-8, Def. Ex. L, Security

Footage 11/17/16; 62-9, Def. Ex. M, Incident Log Report 11/28/16; 62-10, Def.

Ex. N, Lovell Passport; 62-11, Def. Ex. O, Queens County Declination of

Prosecution; 62-12, Def. Ex. P, Decl. of Helen Parker; 62-13, Def. Ex. Q,

Decl. of Barbara Muñoz; 62-14, Def. Ex. R, Plaintiff Tameika Lovell’s SF-95

Form; 62-15 Def. Ex. S, Declination of Lovell’s SF-95 Form; ECF No. 66-2

Decl. of Shana Priore; 66-4 Decl. of Eric Sanders; 66-6 Joint Deposition

Transcript Appendix. Where the parties submitted the same evidence, such as

the CBP Personal Search Handbook, interviews with the Department of Homeland

Security’s Office of Inspector General, and depositions, the Court will refer

to Defendants’ exhibits for ease of citations. Other portions of the Ms.

Lovell’s record include ECF Nos. 63, Pl. Reply to Def. 56.1 Statement &

Counter Statement (“Pl. 56.1 Reply”); 63-1, Pl. Ex. 1, GAO Report on Better

Targeting of Airline Passengers for Personal Searches Could Produce Better

Results (“GAO Report”); 63-3, Pl. Ex. 3, CBP Law Course Fifteenth Edition

2012; and 63-4, Pl. Ex. 4, National Standards on Transport, Escort,

Detention, and Search 2015.

appendix (“JDTA”).3 (See ECF No. 66-2, Priore Decl.) Based on

the parties’ 56.1 Statements, the Court recounts the undisputed

facts in the light most favorable to the nonmoving party. See

Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir.

2005). The Court also notes where facts are disputed by the

nonmoving party.

I. Factual Background

On November 27, 2016, at approximately 10:06 p.m., Ms.

Lovell arrived from a vacation in Montego Bay, Jamaica, at John

F. Kennedy International Airport in Queens, New York (“JFK”).

(ECF No. 63, Pl. 56.1 Reply, ¶ 54.) Traveling alone, Ms. Lovell

went through customs, and was selected by employees of the

Department of Homeland Security’s (“DHS”) Customs and Border

Protection (“CBP”) for a pat-down search.4 (Id., ¶ 59.) The CBP

employees were Defendants Parker, Muñoz, and Twarowski. (See

generally Def. 56.1 Statement & Exs.; see also Pl. 56.1 Reply

Exs.) Defendants Parker and Muñoz were the officers who stopped

and conducted the pat-down of Ms. Lovell. (Id.) Defendant

Twarowski was a supervisory officer on duty that day who

authorized the pat-down by Defendants Parker and Muñoz. (Id.)

3 The JDTA contains the Defendants’ Exhibits A, D, G and H and Plaintiffs’

Exhibits 8-11.)

4 Ms. Lovell admits to traveling alone but denies to being stopped by

Defendant Parker because she was traveling alone, as will be further detailed

below. (ECF No, 63, Pl. 56.1 Reply Statement, ¶ 59.) Whether the pat-down

search was “routine” is also disputed. (Id., ¶ 121.)

A. CBP’s Policies at International Airports for Authorizing and

Conducting Pat-down and Partial Body Searches

CBP officers assigned to an international airport’s

Passenger Enforcement Roving Team (“PERT”) are responsible for

surveilling and monitoring an airport’s international terminal

floor to randomly intercept and examine travelers arriving into

the United States off of specific high-risk flights and flights

from countries considered by CBP to have more illicit drug

production or narcotics-trafficking. (ECF No. 63, Pl. 56.1

Reply, ¶7.)

PERT officers consult intelligence gathered from other

law enforcement agencies or sources on smuggling trends and

countries to be on alert for incoming travelers. (ECF Nos. 63,

Pl. 56.1 Reply, ¶¶ 19-20; 66-6, JDTA at 98, 101, 124.) Jamaica

is designated as a ”drug source” country, and is considered by

CBP officers as a major drug-transit or illicit drug-producing

country. (ECF No. 63, Pl. 56.1 Reply, ¶ 19, ECF No. 66-6, JDTA

at 131-33.). On November 27, 2016, the evening of Ms. Lovell’s

incident at JFK, Defendants Parker and Muñoz were CBP officers

on PERT duty and Defendant Twarowski was a supervisory officer

of CBP and JFK's PERT. (Id., ¶¶ 5-8.) They were working at the

airport’s International Terminal floor at JFK International

Airport on November 27, 2016. (Id.)

CBP officers are trained to employ various techniques

and tools to determine whether to conduct a routine pat-down

search of an individual, including behavioral analysis,

observational techniques, inconsistencies, and intelligence.

(ECF Nos. 63, Pl. 56.1 Reply ¶¶ 12-16; 62-4, Def. Ex. F, CBP

Personal Search Handbook at 2.) According to Defendants’

testimony, on November 27, 2016, the day they intercepted Ms.

Lovell they were operating with the following intelligence that,

inter alia, provided the bases for their search of Ms. Lovell:

Mr. Lovell arrived at JFK from Jamaica, a “drug source” country;

statistical smuggling trends indicated that single travelers

were more likely than groups to transport illicit drugs into the

United States and Ms. Lovell was travelling alone; travelers

commonly concealed contraband in the breast and groin area and

Ms. Lovell had tied a garment around her waist that concealed

her groin area; and the inability of Ms. Lovell not being able

to provide the name of her hotel in Jamaica was behavior

consistent with illicit drug smuggling. (See ECF Nos. 66-6, JDTA

at 42, 45, 48, 50, 131; 62-5, Def. Ex. I, Decl. of Stephen

Twarowski at ¶¶ 7-8; 62-3 Def. Ex. E, OIG Muñoz Interview

12/16/16; 62-1 Def. Ex. B, OIG Twarowski Interview 12/13/16; 62-

2 Def. Ex. C, OIG Parker Interview 4/12/17; 62-4, Def. Ex. F,

CBP Personal Search Handbook at 2.)

Defendants also testified that passenger behaviors

they analyzed included: physiological signs of nervousness such

as shaking or trembling hands, rapid breathing for no apparent

reason, cold sweats, pulsating carotid arteries, flushed face,

and avoiding eye contact. (Id.) Lastly, Defendants were on

alert for inconsistencies in travelers’ interviews with an

officer, false statements, unreasonable explanations for travel,

and unexplained irregularities in ticketing or reservations.

(See generally id.; see also ECF No. 66-6, JDTA at 10.) At

times, this process involves engaging the traveler in

conversation while observing their behavior. (See ECF No. 62-2

Def. Ex. C, OIG Parker Interview 4/12/17.) Ms. Lovell admits

that the CBP provides certain training and intelligence to help

CBP officers determine who to intercept and pat down, but she

broadly asserts without citing to evidence that CBP’s

“objectivity [is] rooted in subjective race and stereotyping.”

(See ECF No. 63, Pl. 56.1 Reply, ¶¶ 18-23.)

The CBP Personal Search Handbook and the GAO Report on

Better Targeting of Airline Passengers for Personal Searches

Could Produce Better Results (“GAO Report”), both of which Ms.

Lovell relies on, provide, in part, that “customs policy is that

a pat-down will be conducted only if an officer has some or mere

suspicion that contraband is being concealed on the passenger.”

(See ECF Nos. 62-4 Def. Ex. F, CBP Personal Search Handbook, Ch.

1(b); see also 63-1, Pl. Ex. 1, GAO Report at 6.) According to

CBP, to satisfy the “some” or “mere suspicion” standard,

inspectors must articulate to a supervisor at least one fact

before conducting a pat-down. (ECF No. 62-4 Def. Ex. F, CBP

Personal Search Handbook, Ch. 1(b).) Pursuant to this CBP

policy, articulable facts are ones that result from the CBP

officer’s analysis of the situation, such as the traveler’s

behavior, physiological signs, physical discrepancies in

appearance, inconsistencies in the traveler’s history or

documents, and available intelligence. (Id., Ch. 1(e).) The

scope of a pat-down search, as described in the CBP Personal

Search Handbook, includes “patting the hands over the person’s

clothed body.” (Id., Ch. 3(e).)

More intrusive searches, however, require that an

inspector have “reasonable suspicion” that a passenger may be

smuggling contraband. (See ECF Nos. 62-4 Def. Ex. F, CBP

Personal Search Handbook, Ch. 3(b); see also 63-1, Pl. Ex. 1,

GAO Report at 4.) The CBP Personal Search Handbook states that,

once a pat-down search has been conducted and a CBP officer

finds reasonable suspicion that material evidence is being

concealed, the officer must request approval from a supervisor

before conducting a “partial body search.” (Id., Ch. 4(a).)

The CBP Personal Search Handbook defines a “partial body search”

as the removal of some of the clothing—and only the traveler can

remove their own clothing—to recover material evidence

reasonably suspected to be concealed on the body. (Id., Ch.

4(b).) Ms. Lovell admits that she was not asked to remove any

of her clothing and does not allege or present evidence that any

of her clothing was removed. (ECF No. 63, Pl. 56.1 Reply, ¶

107.) The CBP Personal Search Handbook states that CBP officers

cannot ask “a woman to spread...(the folds of the skin bordering

the vagina),” as such a request would constitute a full body

cavity search. (ECF Nos. 62-4 Def. Ex. F, CBP Personal Search

Handbook, Ch. 4(c)(3).) Ms. Lovell does not claim or present

evidence that she was asked to spread skin bordering her vagina.

The CBP Personal Search Handbook submitted to this Court,

however, does not address the permissible extent of a search of

the groin area when clothing is still worn.

Following a pat-down search, CBP Officers have up to

24 hours to enter an incident report. (ECF No. 63, Pl. 56.1

Reply Statement ¶ 53.)

B. CBP Selects Ms. Lovell for a Pat-down Search

When Ms. Lovell returned from vacation in Jamaica to

JFK on the evening of November 27, 2016, CBP Officer Defendant

Parker’s PERT duty involved randomly stopping travelers

reentering the country from a foreign territory within the

International Terminal area of JFK. (Id., ¶¶ 9, 54.) Ms.

Lovell was traveling alone from Jamaica and entered the customs

area around 10:06 p.m., wearing black pull-on leggings, with

underwear underneath, a brown shirt with a bra underneath, and a

sweatshirt around her waist that covered her groin area. (ECF

No. 63, Pl. 56.1 Reply Statement, ¶¶ 55-56.) Defendant Parker

stopped Ms. Lovell and asked her to identify the origin of her

trip, to which Ms. Lovell answered Jamaica. (ECF No. 63, Pl.

56.1 Reply Statement, ¶ 60.) Defendant Parker then asked Ms.

Lovell for her passport and saw that Ms. Lovell’s passport

indicated that she had taken approximately twenty-two trips to

Jamaica between July 2013 and November 2016. (ECF Nos. 63, Pl.

56.1 Reply Statement, ¶¶ 61, 67; 62-10, Def. Ex. N, Lovell

Passport.) In Ms. Lovell’s view, Defendant Parker “stopped

plaintiff because she is an African-American female,” but she

offers no evidence in support of her view. (ECF No. 63, Pl.

56.1 Reply Statement, ¶¶ 61, 67.)

At approximately 10:09 p.m., Defendant Parker asked

Ms. Lovell to proceed to the secondary baggage inspection area

where she initiated a search of Ms. Lovell’s luggage. (Id., ¶¶

61-69.) At this time, Defendant Muñoz, another CBP Officer

assigned to PERT at JFK, approached the inspection area and

observed Defendant Parker’s search of Ms. Lovell’s baggage.

(Id., ¶¶ 8, 64.) Defendant Muñoz also inquired about Ms.

Lovell’s occupation, and whether she had a boyfriend or husband

in Jamaica. (ECF Nos. 63, Pl. 56.1 Reply, ¶¶ 70-71; 66-6, JDTA

at 180.) Ms. Lovell responded that she worked as a school

counselor and traveled when she had time off work and denied

that she had a significant other in Jamaica. (ECF Nos. 63, Pl.

56.1 Reply, ¶¶ 66, 71; 66-6, JDTA at 52.)

At approximately 10:13 p.m., another CBP Officer, Rene

Roman (“Roman”), the PERT Team Leader on duty, approached the

area where Ms. Lovell’s bags were searched, inspected Ms.

Lovell’s passport and asked further questions, as Defendant

Parker continued the baggage inspection. (ECF No. 63, Pl. 56.1

Reply, ¶¶ 72-74.) Ms. Lovell said that Roman specifically asked

whether Ms. Lovell was “tenured” at her job, expressed interest

in Ms. Lovell’s ability to pay for multiple trips to Jamaica on

a school counselor’s salary, and commented that she was perhaps

“spending too much money traveling.” (ECF No. 66-6, JDTA at

180.) According to Defendants, when Defendant Parker asked Ms.

Lovell where she had stayed while in Jamaica, Ms. Lovell could

not identify the hotel in which she had stayed; but Ms. Lovell

denies this fact without further description or evidence. (Id.,

48; ECF No. 63, Pl. 56.1 Reply, ¶¶ 68, 69.) Ms. Lovell’s denial

does not create a disputed issue of material fact, given the

other undisputed evidence in the record, regarding the

Defendant’s articulated suspicions. Defendant Parker also

stated that she noticed throughout the secondary baggage

inspection, Ms. Lovell was breathing heavily and sweating. (ECF

No. 63, Pl. 56.1 Reply, ¶ 78.)

Defendant Parker testified that, upon completing Ms.

Lovell’s baggage inspection at approximately 10:16 p.m. (id., ¶

84), and based on what she had observed and heard, she believed

that Ms. Lovell may have had a weapon, contraband, or evidence

of a crime on or within her body. (ECF Nos. 66-6, JDTA at 48;

63, Pl. 56.1 Reply at ¶ 10.) Defendants testified that they

were aware that they needed articulable facts as to the basis of

their suspicion to conduct a routine pat-down of a traveler.

(See ECF No.66-6, JDTA at 48-51.)

Pursuant to CBP policy, Defendants Parker and Muñoz

obtained approval from Defendant Twarowski, the on-duty

supervisor, to perform a pat-down search by providing at least

one articulable fact supporting the need for a pat-down search

to him. (Id., ¶¶ 4-5,25-27.) Because Defendant Twarowski was

not physically present in the International Terminal where

Defendant Parker performed Ms. Lovell’s initial interview and

baggage inspection, Defendant Parker asked Roman to relay

certain facts to Defendant Twarowski over the phone. (Id. ¶¶

80-81.)5 Defendant Twarowski testified to remembering the

5 Defendant Twarowski explained that Roman was permitted to forward the

information to him because, Roman, a PERT Team Leader, was “considered an

extension of the supervisor” and was at the terminal “to oversee and view and

assess officers performing baggage searches.” (See ECF No.66-6, JDTA at

124.)

following articulable facts that Roman relayed: Ms. Lovell “was

coming from a source country for narcotics, she had multiple

short trips coming from the source country for narcotics, she

was traveling alone.” (ECF No. 66-6, JDTA at 131.)

In view of the articulable facts relayed to him,

Twarowski authorized a pat-down search of Ms. Lovell. (Id. at

131, 138; Pl. 56.1 Reply, ¶ 83.)6 Defendant Parker then escorted

Ms. Lovell to a private search room, so that she and Defendant

Muñoz could perform the search away from the public. (ECF No.

63, Pl. 56.1 Reply ¶ 86.)

C. Pat-down Search at Issue

The crux of the parties’ dispute is what happened in

the room while Defendants Parker and Muñoz were conducting their

pat-down search of Ms. Lovell. Here, the parties’ accounts

deviate, and the facts will be construed in a light favorable to

Ms. Lovell as the nonmoving party.

The pat-down search began inside the private room with

Defendant Parker asking Ms. Lovell if she was menstruating, or

6 Ms. Lovell contends that “other than [Defendant Parker’s statement], there’s

no credible evidence” to support Defendant Twarowski authorization of the

pat-down search based on the articulated facts. The Court finds that the

undisputed evidence in the record, including Defendants Twarowski’s,

Parker’s, and Munoz’s sworn statements, establish that Defendants had and

conveyed articulable facts to convey and obtain Defendant Twarowski’s

authorization for the pat-down of Ms. Lovell. (ECF Nos. 66-6, JDTA at 83;

62-1, Def. Ex. B, OIG Twarowski Interview 12/13/16; 62-2 Def. Ex. C, OIG

Parker Interview 4/12/17; 62-3 Def. Ex. E, OIG Muñoz Interview 12/16/16; 62-

5, Def. Ex. I, Decl. of Stephen Twarowski at ¶¶ 7-8; 62-9, Def. Ex. M,

Incident Log Report 11/28/16.)

using any feminine hygiene products, and Ms. Lovell responded

that she was not. (ECF No. 63, Pl. 56.1 Statement, ¶¶ 87-88.)

Defendant Parker also asked Plaintiff if she was concealing

anything in her bra and Ms. Lovell responded that she was not.

(Id., ¶ 89.) Defendants explained that the officer conducting

the search will ask female travelers whether they are

menstruating or wearing a sanitary napkin, padding, tissue or

tampon so that the officer does not become alarmed if she feels

an object in the groin area. (ECF Nos. 62-2 Def. Ex. C, OIG

Parker Interview 4/12/17, at 2; 66-6, JDTA at 225.)

Defendant Parker then asked Ms. Lovell to put her

hands flat against the wall and to bend slightly at the knee, as

required by CBP pat-down procedure. (ECF No. 63, Pl. 56.1 Reply

Statement, ¶¶ 39, 90.) Defendant Parker started the pat-down

over Ms. Lovell’s clothing, by feeling Ms. Lovell’s arms and

stomach, using her gloved palms, which Ms. Lovell does not deny.

(Id., ¶ 92.)

Next, however, Ms. Lovell testified that Defendant

Parker “squeezed [her breasts]” while “checking the padding” of

her bra. (ECF No. 66-6, JDTA at 182, 197.) Ms. Lovell

recounted that, while she was squatting down, “[Defendant

Parker] grabbed her breast so hard, she nearly fell over.” (ECF

No. 63, Pl. 56.1 Reply Statement, ¶ 90.) Meanwhile, Defendant

Muñoz stood to Ms. Lovell’s right side, with a hand over Ms.

Lovell’s hand. (Id., ¶ 91.)7

Then, according to Ms. Lovell, Defendant Parker “stuck

her fingers in [Ms. Lovell’s] vagina.” (ECF No. 66-6, JDTA at

182.) Ms. Lovell testified that Parker “put her fingers in

between my legs. I had on leggings she moved my underwear to

the side, and she stuck her fingers in my vagina. After that

she swiped her hand in between my buttocks.” (Id.) Ms. Lovell

specified Defendant Parker's hands were not underneath Ms.

Lovell’s clothes, but that the material of her leggings was

“very stretchy”, and that Defendant Parker's fingers could

“easily get to [her] private area.” (Id. at 208-209.) Ms.

Lovell also testified that when Defendant Parker was checking

Ms. Lovell’s groin area, she asked, “what is that down there?”

and Ms. Lovell answered, “it’s my underwear.” (Id. at 228.)

Ms. Lovell said that Defendant Parker then responded with “oh

ok” and moved Ms. Lovell’s underwear to the side and then used

her fingers to penetrate Ms. Lovell. (Id.) It is undisputed

that during the pat-down search of Ms. Lovell’s groin area,

either the fabric of Ms. Lovell’s underwear or leggings, or

both, was between Defendant Parker’s gloved hand and Ms.

7 Defendants explained that the purpose of asking the traveler to stand in

this position is to keep the individual at a physical disadvantage if he or

she initiates violence against the searching or witnessing officer. (ECF No.

66-6, JDTA at 173-177.)

Lovell’s skin. (Id., at 208; ECF No. 63, Pl. 56.1 Reply, ¶¶ 102-

03, 107.)

Defendant Parker testified that she did not insert her

fingers into Ms. Lovell’s vagina or squeeze Ms. Lovell’s

breasts. Defendant Parker testified that she patted down Ms.

Lovell’s chest area, over her clothing, for contraband. (ECF

Nos. 66-6, JDTA at 181, 196, 197; 62-2 Def. Ex. C, OIG Parker

Interview 4/12/17 at 3.) As a part of the chest search,

Defendant Parker testified that she slid her fingers under the

“boning” of Ms. Lovell’s bra and bra straps (above the breast)

and patted down the “section of bra between the breasts.” (ECF

Nos. 66-6, JDTA at 106, 179; 62-2 Def. Ex. C, OIG Parker

Interview 4/12/17 at 3.)

According to Defendant Parker, she then patted down

the area between Ms. Lovell’s legs and Ms. Lovell’s buttocks

using one hand. (ECF Nos. 66-6, JDTA at 181, 206, 213; 62-2 Def.

Ex. C, OIG Parker Interview 4/12/17, at 3.) Defendant Parker

said that she searched Ms. Lovell groin area by touching the

clothed outer area of Ms. Lovell’s groin, over the leggings,

with the back of her hand. (ECF No. 66-6, JDTA at 181.) She

said she took her right hand with the fingers closed together

and thumb inside her hand and slid the back of her hand under

Ms. Lovell’s groin. (Id. at 69.) Defendant Parker testified

that this was a “standard pat-down” and denied “inserting

fingers into the vagina.” (Id. at 65.) Defendant Parker then

patted down Ms. Lovell’s legs from the thigh downward. (Id. at

215.) Defendant Parker ended the pat-down by searching Ms.

Lovell’s shoes and scalp for contraband. (Id., ¶¶ 104-05.)

The parties agree that the entirety of the search-

including the moment Ms. Lovell entered the pat-down room until

Defendant Parker finished searching Ms. Lovell’s scalp and

shoes-lasted approximately two minutes. (Id., ¶ 109.) Defendant

Parker exited the room and informed Roman that she did not find

any contraband during her search. (Id., ¶ 110.) Ms. Lovell

asserts that Defendant Parker exited the room “to laugh at” Ms.

Lovell. (Id.) Roman and Defendant Twarowski then both

reentered the room to speak with Ms. Lovell and Roman told Ms.

Lovell that she was searched due to her extensive travel. (Id.,

¶ 110-116; ECF No. 66-6, JDTA at 219-220.)

At approximately 10:22 p.m., Defendant Twarowski

entered the private search room and returned Ms. Lovell’s

passport to her. (Id., ¶¶ 114, 116.) At approximately 10:23

p.m., Ms. Lovell gathered her belongings and exited the

secondary search room. (Id., ¶¶ 117-118.)

D. After Ms. Lovell's Pat-down

Ms. Lovell testified that her father picked her up

from JFK and took her to Syosset Hospital directly. (ECF Nos.

63, Pl. 56.1 Reply, ¶ 126; 66-6, JDTA at 184-85.) Ms. Lovell

had an external rape kit conducted at the hospital and requested

that the hospital call the police. (ECF Nos. 63, Pl. 56.1

Reply, ¶¶ 127-29; 66-6, JDTA at 184-85.) A Port Authority of

New York and New Jersey Police Department Detective arrived and

took Ms. Lovell’s statement. (ECF No. 63, Pl. 56.1 Reply, ¶

130.)

About a week later, Ms. Lovell met with a

representative of the Queens County District Attorney and

described the incident to the attorneys there, alleging that

Defendant Parker “sexually assaulted” her. (Id., ¶ 133; ECF No.

66-6, JDTA at 185.) The District Attorney’s Office declined to

prosecute Parker based on insufficient evidence of a violation

of New York State Penal Law 130.52, Forcible Touching. (ECF

Nos. 63, Pl. 56.1 Reply, ¶ 134; 62-11 Def. Ex. O, Queens County

Declination of Prosecution at 2.)

In December 2016, the Department of Homeland Security

Office of Inspector General (“OIG”) also opened an investigation

into Ms. Lovell’s allegations. (ECF No. 63, Pl. 56.1 Reply, ¶

136.) The OIG interviewed each Defendant and Roman, but Ms.

Lovell challenges the veracity of the interviews. (Id., ¶ 138;

see also ECF Nos. 62-1 Def. Ex. B, OIG Twarowski Interview

12/13/16; 62-2 Def. Ex. C, OIG Parker Interview 4/12/17; 62-3

Def. Ex. E, OIG Muñoz Interview 12/16/16.) Neither Parker nor

Muñoz have been disciplined by CBP for their actions on November

27, 2016, with regards to the pat-down search of Ms. Lovell.

(Id., ¶ 139; see also ECF Nos. 62-12 Def. Ex. P, Parker Decl.,

¶¶ 5-6; 62-13, Def. Ex. Q, Muñoz Decl., ¶¶ 6-7.) To Parker and

Muñoz’s knowledge, OIG has not proceeded with a complaint

against them for their conduct with regards to Ms. Lovell.

(Id.)

On October 5, 2017, Ms. Lovell filed an administrative

claim with CBP pursuant to the Federal Tort Claims Act for

$35,000,000 in “emotional distress, pain, and suffering

damages.” (ECF No. 62-14, Def. Ex. R, Tameika Lovell's SF-95

Form.) Ms. Lovell’s claim is based on allegedly being subject

to an “unsupervised unlawful ‘body cavity search’” in which she

was “‘forced to squat’” and the officers “squeezed her breasts”

and an officer ‘forcibly’ inserted four (4) fingers into her

vagina.” On March 6, 2018, CBP denied Ms. Lovell’s claim,

finding that the “issues fall within the discretionary function

exception to the government’s waiver of sovereign immunity under

the Federal Tort Claims Act.” (ECF No. 62-15, Def. Ex. S,

Declination of Lovell’s SF-95 Form.)

II. Procedural History

Ms. Lovell commenced this action on March 28, 2018.

(See ECF No. 1, Compl.) On September 21, 2018, the parties

participated in a pre-motion conference for the government’s

anticipated motion to dismiss and to discuss issues related to

service and Ms. Lovell’s claims against the United States and

the CBP. (See Minute Entry Sept. 21, 2018.) Thereafter, Ms.

Lovell filed a first amended complaint on September 28, 2018,

and Defendants answered on December 7, 2018. (See ECF Nos. 20,

First Am. Compl. at 2; 27, Reply to Compl. at 2.) Ms. Lovell

filed a second amended complaint on March 29, 2020, and

Defendants answered the second amended complaint on May 15,

2020. (See ECF Nos. 38, Compl. at 3; 39, Reply to Compl. at 2.)

On January 12, 2021, Defendants filed a letter advising that

they intended to proceed by filing a dispositive summary

judgment motion. (See ECF. No. 45, Def. Letter.)

On November 5, 2021, the parties filed their summary

judgment briefing, their Local Rule 56.1 Statements regarding

summary judgment and supporting submissions. (See ECF No. 66.)

On February 17, 2022, Defendants filed a letter advising the

Court of recent supplemental authority relevant to Defendants’

motion for summary judgment. (ECF No. 67, Def. Supp. Auth.

Letter.) On July 1 and 2, 2022, following this Court’s order

directing further briefing, the parties each filed a memorandum

regarding the applicability of the recent Supreme Court opinion,

Egbert v. Boule, 142 S. Ct. 1763, 1797 (2022), to the instant

action. (ECF Nos. 69, Def. Supp. Briefing; 70, Pl. Supp.

Briefing.)

LEGAL STANDARD

Summary judgment may be granted to a movant who

demonstrates “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for

these purposes when it ‘might affect the outcome of the suit

under the governing law.’” Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). No “genuine”

dispute exists “unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.”

Liberty Lobby, 477 U.S. at 249.

When bringing a motion for summary judgment, the

movant carries the burden of demonstrating the absence of any

disputed issues of material fact and an entitlement to judgment

as a matter of law. Rojas, 660 F.3d at 104. In deciding a

summary judgment motion, the Court must resolve all ambiguities

and draw all reasonable inferences against the moving party.

Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001)

(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)). A moving party may indicate the

absence of a factual dispute by “showing . . . that an adverse

party cannot produce admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(B).

Once the moving party has met its burden, the

nonmoving party “must come forward with admissible evidence

sufficient to raise a genuine issue of fact for trial in order

to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536

F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986)). If a nonmoving party submits

evidence that “is merely colorable, or is not significantly

probative, summary judgment may be granted” against the party.

Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted).

DISCUSSION

Plaintiff brought this action against the individual

Defendants pursuant to Bivens, claiming violations of her Fourth

and Fifth Amendment rights, and Defendants have moved for

summary judgment on those claims. Defendants argue that Bivens

does not provide an implied constitutional cause of action for

damages against a CBP officer for intercepting a traveler and

conducting a routine pat-down search on her, and that the Court

should not recognize one. This Court agrees that a Bivens

action is unavailable for Ms. Lovell’s asserted violations of

the Fourth and Fifth Amendment under the Supreme Court’s Bivens

decision and its progeny. Even if a Bivens action were

available, moreover, this Court would find that Defendants are

entitled qualified immunity.

I. Bivens Cause of Action

In Bivens, the Supreme Court held that “a person

claiming to be the victim of an unlawful arrest and search could

bring a Fourth Amendment claim for damages ... even though no

federal statute authorized such a claim.” Hernández v. Mesa,

140 S. Ct. 735, 741 (2020). The Court subsequently extended

Bivens to “cover two additional constitutional claims: in Davis

v. Passman, 442 U.S. 228 (1979), the Court recognized a former

congressional staffer’s Fifth Amendment claim for unlawful

dismissal based on sex; and in Carlson v. Green, 446 U.S. 14

(1980), the Court recognized a federal prisoner’s Eighth

Amendment claim for failure to provide adequate medical

treatment. Id.

After recognizing these three implied constitutional

causes of action in which individual federal officers could be

sued for damages, “the Court changed course.” Id. The Court’s

most recent decisions preclude the type of claims that Plaintiff

advances here.

First, in Ziglar v. Abbasi, the Supreme Court “made

clear that expanding the Bivens remedy is now a ‘disfavored’

judicial activity.” 137 S. Ct. 1843, 1857 (2017). The Court

noted that extending an implied constitutional cause of action

“is a significant step under separation-of-powers principles,”

and the Court held that Congress is the branch of government

with the “substantial responsibility to determine whether, and

the extent to which, monetary and other liabilities should be

imposed upon individual officers and employees of the Federal

Government.” Id. at 1856. The Abbasi Court confirmed, that for

decades since Bivens, the Supreme Court has, “consistently

refused to extend Bivens to any new context or new category of

defendants.” Id. at 1856-57 (cautioning against creating

additional implied remedies “no matter how desirable that might

be as a policy matter”).

The Abbasi Court considered two inquiries in

determining whether to extend Bivens. First, the Court inquired

whether the claim arose in a “new context” or involved a “new

category of defendants." Id. at 1849. Second, the Court asked

whether there were “special factors counselling hesitation in

the absence of affirmative action by Congress" to grant the

extension. Id. In Abassi, the Court considered whether to

extend a Bivens action to persons detained as suspected

terrorists after the September 11 attacks such that they could

bring claims against federal officials responsible for their

allegedly unconstitutional detention. Id. at 1852-53. In

refusing to extend Bivens, the Court explained that courts have

shown deference to what the Executive Branch “has determined is

essential to national security.” Id. at 1861 (internal

quotations omitted). For matters concerning national security,

the Abassi Court held that the “balance to be struck” “between

deterring constitutional violations and freeing high officials

to make the lawful decisions necessary to protect the Nation is

one for Congress, not the Judiciary.” Id. at 1865.

Second, in Hernández v. Mesa, the Supreme Court

applied Abbasi to reject a Bivens cause of action, in

circumstances involving actions of federal officers at the

nation’s border. In Hernández, the Supreme Court denied

a Bivens claim to the parents of a Mexican teenager who was shot

and killed by a Border Patrol agent. Id. at 740-41. The

Supreme Court denied Bivens relief because the claims implicated

national security issues, given that Border Patrol agents are

“responsible for preventing the illegal entry of people and

goods into the United States.” Id. at 746. The Hernández Court

reiterated that courts are not well equipped to make decisions

that implicate foreign policy and national security, and these

institutional-capacity concerns are “heightened” when it comes

to judicially created constitutional remedies. Id. at 749.

If Hernández left any doubt as to the availability of

a Bivens claim for damages against government officials for

conduct that implicates border security or national security,

the Supreme Court has removed that doubt. This past term, the

Supreme Court in Egbert v. Boule considered a Fourth Amendment

excessive force and First Amendment retaliation claim against a

CBP agent. 142 S. Ct. 1763, 1797 (2022). The Court reiterated

that “a cause of action under Bivens is ‘a disfavored judicial

activity.” Id. The Court synthesized its past precedents,

further limiting any potential expansion of Bivens. As the

Court explained, “‘[e]ven a single sound reason to defer to

Congress’ is enough to require a court to refrain from creating

such a remedy.” Id. at 1803. The Court accordingly condensed

the two-part test in Abbasi into a “single question: whether

there is any reason to think that Congress might be better

equipped to create a damages remedy.” Id. In Boule, the

Supreme Court also posed the question “whether a court is

competent to authorize a damages action…against Border Patrol

agents generally” and concluded with a resounding “no.” Id. at

1806.

The Boule Court thus echoed its previous holding in

Hernández of declining to create a damages remedy for an

excessive-force claim against Border Patrol agents—except in

Boule, an agent entered Plaintiff’s business without a warrant

and threw Plaintiff to the ground, injuring him. The Court

explained that the agent was carrying out CBP's mandate to

“interdic[t] persons attempting to illegally enter or exit the

United States or goods being illegally imported into or exported

from the United States” pursuant to 6 U.S.C. § 211(e)(3)(A) and

that a Bivens cause of action "may not lie where, as here,

national security is at issue." Id. at 1805. The Court noted

that if Congress has provided alternative remedies for aggrieved

parties, as it did with CBP, by enacting a grievance procedure

that allowed for investigations into an agent's conduct, then

that legislative choice independently forecloses a Bivens

action. Id. at 1806. The Court found that the Border Patrol's

grievance process afforded “adequate deterrence” for officer

misconduct and afforded the plaintiff an alternative remedy.

Id.

Under binding Supreme Court precedent, then, Ms.

Lovell may not maintain a cause of action against the individual

Defendants pursuant to Bivens. Ms. Lovell brings suit against

individual CBP officers on duty at a border checkpoint within an

international airport. There is no question that the Defendant

officers performed functions instrumental to border security.

Defendant officers were charged with identifying and

intercepting individuals who may attempt to bring contraband or

illicit substances into the country and were authorized to

perform routine pat-downs in the interest of maintaining the

national security, by searching for contraband or other

dangerous items. (See ECF No. 63, Pl. 56.1 Reply Statement, ¶7;

see also ECF No. 62-4, Def. Ex. F, CBP Personal Search

Handbook.)

The defendants Ms. Lovell names in her Bivens suit are

thus substantially in the same position as the officers for whom

the Supreme Court in Boule rejected a Bivens action. If

anything, this case is more straight-forward than Boule; whereas

Boule involved the actions of CBP officers in the domestic

territory of the United States, this action involves conduct by

CBP officials at an international border, where considerations

of border security are even more pronounced. See Almeida-

Sanchez v. United States, 413 U.S. 266, 273 (1973) (finding that

airports where international flights arrive are the “functional

equivalent” of a border for purposes of routine border

searches.)

Furthermore, Ms. Lovell accessed alternative remedies,

with the Port Authority of New York and New Jersey Police

Department, the Queens County District Attorney’s office, and

the DHS OIG, which investigated her allegations against

Defendants, including conducting interviews with the three

Defendants. And though the existence of the Federal Tort Claims

Act has never precluded Bivens remedies, it is notable that Ms.

Lovell also filed an administrative tort claim with the

Department of Homeland Security, the agency overseeing CBP. "So

long as Congress or the Executive has created a remedial process

that it finds sufficient to secure an adequate level of

deterrence, the courts cannot second-guess that calibration by

superimposing a Bivens remedy.” Boule, 1763 S. Ct. at 1807.

Even if Boule were not controlling outright, the two

former inquiries-now considerations-expressed in the Supreme

Court’s Bivens precedents would preclude Ms. Lovell’s claim.

First, the instant case arises in a new context, because a

Bivens action targeting the conduct of CBP officers at a border

entry point has never been recognized by the Supreme Court. Ms.

Lovell argues that her case “is precisely the kind of search-

and-seizure case where application of Bivens has been affirmed

by the Supreme Court as ‘a fixed principle in the law.’" (ECF

No. 66-3, Pl. Opp’n to Summ. J. at 7) (quoting Abassi, 137 S.

Ct. at 1856-57.) But the Supreme Court in Abassi did not

hesitate in declaring a new non-actionable context, despite the

Fourth and Fifth Amendment search-and-seizure claims involving

allegedly unconstitutional strip searches. Instead, what

constitutes a new context for purposes of Bivens is a “broad”

inquiry, and a claim may arise in a new context even if it is

based on the same constitutional provision as a claim in a case

in which a damages remedy was previously recognized. Hernández,

140 S. Ct. at 743. “Examples of differences that ‘are

meaningful enough to make a given context a new one’ include:

the rank of officers involved; the constitutional right; the

specificity of the action; the extent of judicial guidance on

how an officer should respond; the risk of intrusion by the

judiciary into the function of other branches; or other special

factors.” Abassi, 137 S. Ct. at 1849. Ms. Lovell’s Fourth and

Fifth Amendment constitutional claims are rooted in an “unlawful

pat-down, secondary, and body cavity search due to her race and

gender.” (ECF No. 66-3, Pl. Opp’n to Summ. J. at 1.) But the

context of a border search here is a far cry from the events in

Bivens, where federal agents entered a plaintiff’s home without

a warrant and subjected him to a visual strip search. Nor is it

akin to the Fifth Amendment context alleged in Davis, the

dismissal of a congressional employee on the basis of sex

discrimination.

Even if the context is familiar, as Ms. Lovell’s

counsel argues, there are "special factors counseling

hesitation" to providing a Bivens remedy in this case.

Abassi 137 S. Ct. at 1857. Similar to the question highlighted

in Boule, the “special factors" question requires the Court to

decide whether the courts are well suited, in place of Congress,

to decide that an action should lie. The Abassi Court, in

considering special factors for a claim similar to the one here,

expressly stated that “[n]ational-security policy is the

prerogative of the Congress and President” and that “the risk of

disruptive intrusion by the Judiciary into the functioning of

other branches” was far too great. Id. at 1861. The Supreme

Court reasoned that "the risk of personal damages liability is

more likely to cause an official to second-guess difficult but

necessary decisions concerning national-security policy.” Id.

The need for CBP officers to monitor the security of

international terminals is a component of the nation’s security,

and counsels significantly against fashioning a new implied

constitutional claim. Moreover, the presence of an alternative

remedy “alone may limit the power of the Judiciary to infer a

new Bivens cause of action.” Id. at 1858.

At least since Abassi, the Supreme Court has made it

clear that courts should be particularly cautious about

extending Bivens beyond the three cases in which the Supreme

Court has “approved of an implied damages remedy under the

Constitution itself.” Abbasi, 137 S. Ct. at 1855. Boule further

clarified that Fourth or Fifth Amendment cases against CBP

officers are distinct from the original Bivens case against

Federal Bureau of Narcotics agents. Ms. Lovell’s circumstances

are “different in a meaningful way from previous Bivens cases

decided by the Supreme Court,” and the Supreme Court disfavors

judicial inquiry into matters of national security. See Abassi,

137 S. Ct. at 1859. Moreover, Ms. Lovell has access to

alternative remedies. Consequently, this Court must and does

conclude that Plaintiff does not have an available Bivens cause

of action.

II. Merits of Constitutional Claims

A. Fourth Amendment Claim - Qualified Immunity

Finally, even if Ms. Lovell had a cause of action

under Bivens, her constitutional claims would not survive

summary judgment on the merits. The doctrine of qualified

immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Thus, under a qualified immunity

analysis, courts assess constitutional claims following a two-

part framework: first, by inquiring whether there is a

constitutional violation and second, by asking whether the

defendants are nonetheless protected under the doctrine of

qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 232

(2009). As the Supreme Court has instructed, however, courts

may “exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Id. at 236. Even assuming that disputed facts

exist as to whether Ms. Lovell’s constitutional rights were

violated, this Court addresses only whether Defendants are

entitled qualified immunity and determines that they are.

“Qualified immunity protects public officials from

liability for civil damages when one of two conditions is

satisfied: (a) the defendant's action did not violate clearly

established law, or (b) it was objectively reasonable for the

defendant to believe that his action did not violate such law.”

Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v.

City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)).

Regarding whether the legal rules were "clearly established” at

the time the action was taken, “[o]nly Supreme Court and Second

Circuit precedent existing at the time of the alleged violation

is relevant in deciding whether a right is clearly established.”

Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) (citing Townes

v. City of New York, 176 F.3d 138, 144 (2d Cir. 1999)).

In other words, “the relevant question is whether a

reasonable officer could have believed the [challenged conduct]

to be lawful, in light of clearly established law and the

information the ... officers possessed.” Anderson v. Creighton,

483 U.S. 635, 641 (1987). Importantly, a federal officer is

entitled to qualified immunity even if his decision was

mistaken, so long as the decision was reasonable. Castro v.

United States, 34 F.3d 106, 112 (2d Cir. 1994) (citing Hunter v.

Bryant, 502 U.S. 224, 229 (1991)). Further, “[t]he protection

of qualified immunity applies regardless of whether the

government official's error is a mistake of law, a mistake of

fact, or a mistake based on mixed questions of law and fact.”

Pearson, 555 U.S. 223, 231 (2009) (quotation marks and citation

omitted). In sum, “[t]he qualified immunity standard ‘gives

ample room for mistaken judgments’ by protecting ‘all but the

plainly incompetent or those who knowingly violate the law.’”

Hunter, 502 U.S. at 229 (quoting Malley v. Briggs, 475 U.S. 335,

343, 341 (1986)).

This Court finds that Defendants could have reasonably

“believed the [challenged conduct] to be lawful, in light of

clearly established law and the information the ... officer[ ]

possessed.” Creighton, 483 U.S. 641 (1987). The Fourth

Amendment of the Constitution prohibits all unreasonable

searches of a person or their effects. An illegal search occurs

when the government violates a reasonable “expectation of

privacy” or “obtains information by physically intruding on a

constitutionally protected area.” Carpenter v. United States,

138 S. Ct. 2206 (2018). Typically, a warrant is required to

override this right, but, "[i]n the absence of a warrant, a

search is reasonable only if it falls within a specific

exception to the warrant requirement.” Riley v. California, 573

U.S. 373 (2014).

The Supreme Court has long accepted that

constitutional protections are more limited at the border than

within the domestic United States. Fourth Amendment

jurisprudence recognizes searches and seizures at international

borders as exceptions to the usual strictures of the Fourth

Amendment. See United States v. Ramsey, 431 U.S. 606, 617–19

(1977) (“Border searches…from before the adoption of the Fourth

Amendment, have been considered to be reasonable by the single

fact that the person or item in question had entered into our

country from outside.”); see also United States v. Montoya de

Hernández, 473 U.S. 531, 537 (1985)( “Since the founding of our

Republic, Congress has granted the Executive plenary authority

to conduct routine searches and seizures at the border, without

probable cause or a warrant, in order to regulate the collection

of duties and to prevent the introduction of contraband into

this country.”) Because people can enter the country at points

other than along the border, courts have concluded that stops

and searches conducted at the first point at which an entrant

may practically be detained to be the “functional equivalent” of

the border. See Almeida-Sanchez, 413 U.S. 273 (1973); see also

United States v. Bareno–Burgos, 739 F. Supp. 772, 778 (E.D.N.Y.

1990) (“Case law reflects that the functional equivalent of the

border need bear no particular time or space relationship to the

actual border.”)

Under what is known as the border-search exception,

searches performed at international terminals do not generally

require a warrant, probable cause, or reasonable suspicion. Id.

Border searches are widely held to be within the government’s

most expansive authority because of the government’s "inherent

authority to protect, and a paramount interest in protecting,

its territorial integrity.” United States v. Flores-Montano,

541 U.S. 149 (2004). The Supreme Court has recognized that

searches at the border are “qualitatively different” from those

occurring in the interior of the United States, because persons

entering the country have less robust expectations of privacy,

given the federal government’s broad power to safeguard the

nation by examining persons seeking to enter its territory. See

Montoya de Hernández, 473 U.S. 531, 538-39 (1985).

Consequently, courts allow border patrol agencies such as CBP

broad latitude to conduct routine inspections and searches of

travelers without a warrant or any particularized suspicion of

unlawful activity.

Typically, the standard applied to border searches

depends on whether the search is deemed to be routine or not.

Courts consider all common and routine searches of a traveler to

be de facto reasonable, while searches that are non-routine

require a “reasonable suspicion.” See, e.g., Ramsey, 431 U.S.

at 616 (“That searches made at the border, pursuant to the long-

standing right of the sovereign to protect itself by stopping

and examining persons and property crossing into this country,

are reasonable simply by virtue of the fact that they occur at

the border, should, by now, require no extended

demonstration.”); see also Tabbaa v. Chertoff, 509 F.3d 89 (2d

Cir. 2007) ("It is well established that the government has

broad powers to conduct searches at the border even where . . .

there is no reasonable suspicion that the prospective entrant

has committed a crime.”). Routine searches include searches of

outer clothing, luggage, a purse, wallet, pockets, or shoes

which all “do not substantially infringe on a traveler's privacy

rights.” See United States v. Irving, 452 F.3d 110, 123 (2d

Cir. 2006). But a border search that extends beyond a routine

search and inspection may require at least reasonable suspicion.

The Supreme Court has not precisely defined the scope of a

routine border search but has suggested that highly intrusive

searches may fall outside that category and thus require

heightened suspicion to withstand Fourth Amendment scrutiny. See

Flores-Montano, 541 U.S. at 152–54, 156.

Here, Ms. Lovell does not appear to challenge the

agents’ authority to conduct searches at an international

border. Instead, Ms. Lovell contends that the nature of the

search violated her constitutional rights. The Supreme Court

has required agents to meet a “reasonable suspicion” standard

whenever a search is deemed nonroutine. Examples of nonroutine

searches typically include physical searches of the body and the

removal of clothing. In United States v. Montoya de Hernández,

the Court held that a strip search revealing nearly 100 balloons

of cocaine in the searched individual's gastrointestinal system

went beyond a “routine” search and thus required “reasonable

suspicion.” 473 U.S. 531 (1985); see also Irving, 452 F.3d 110,

123 (2d Cir. 2006) (explaining that reasonable suspicion would

be required for a more invasive search and the inquiry “simply

considers, after taking into account all the facts of a

particular case, ‘whether the border official ha[d] a reasonable

basis on which to conduct the search.’”). The Montoya de

Hernández Court specified that the “reasonable suspicion”

standard “fits well into situations involving alimentary canal

smuggling at the border” because the “governmental interests in

stopping smuggling at the border are high” and that

“[a]uthorities must be allowed ‘to graduate their response to

the demands of any particular situation.’” See Montoya de

Hernández, 473 U.S. 531, 542 (1985) (quoting United States v.

Place, 462 U.S. 696, 709, n. 10, 103 S.Ct. 2637, 2646, n. 10, 77

L.Ed.2d 110 (1983)). The Second Circuit has pointed to several

factors courts may consider in making the reasonable suspicion

determination, including: unusual conduct of the defendant,

loose-fitting or bulky clothing, evasive or contradictory

answers, excessive nervousness, a suspicious itinerary, or

discovery of incriminating matter during routine searches.

United States v. Asbury, 586 F.2d 973, 976 (2d Cir. 1978).

Outside of the border context, the Second Circuit has

found that body cavity searches with physical contact (i.e.,

manual body cavity searches) necessitate an even stronger

justification. Sloley v. VanBramer, 945 F.3d 30 (2d Cir. 2019);

see Wilson v. Aquino, 233 F. App'x 73, 75–76 (2d Cir. 2007)

(finding a strip search that turned into a manual examination of

body cavities was illegal as a matter of law); Sec. & L. Enf't

Emps., Dist. Council 82, Am. Fed'n of State, Cnty. & Mun. Emps.,

AFL-CIO by Clay v. Carey, 737 F.2d 187, 208 (2d Cir.

1984)(holding that a visual body-cavity search had to have been

related to some indication that contraband was carried into a

facility in the searched individual's body cavities); see also

Monroe v. Gould, 372 F. Supp. 3d 197 (S.D.N.Y. 2019)(finding

physical cavity searches to be “the most invasive type of

search” and receive the most scrutiny when determining

“reasonableness”). As the Supreme Court has recognized, “[t]he

interests in human dignity and privacy which the Fourth

Amendment protects forbid any such intrusions on the mere chance

that desired evidence might be obtained.” Schmerber v.

California, 384 U.S. 757, 769–70 (1966).

The Second Circuit, however, has not addressed manual

body cavity searches in the context of international borders,

where the Fourth Amendment’s protections are necessarily

diminished. The Second Circuit has only generally held that “an

intrusive body search is justified only if the border official

can articulate facts based upon something more than the border

crossing that raise the suspicion of illegal concealment...the

reasonableness of such a search is determined by balancing the

legitimate governmental interests against the offensiveness of

the intrusion.” United States v. Ogberaha, 771 F.2d 655, 658

(2d Cir. 1985). The Supreme Court, however, has specified that

the heightened standard of reasonable suspicion requires only "a

particularized and objective basis for suspecting the particular

person stopped of criminal activity.” Navarette v. California,

572 U.S. 393, 396; Irving, 452 F.3d 110, 123 (2d Cir. 2006). In

Ogberaha, the Second Circuit found sufficient "reasonable

suspicion" to justify a strip search to locate contraband in a

traveler’s vagina due to the fact that the traveler had traveled

from a “source” country, for a short period of time, with little

luggage, and behaved nervously. Id. at 658. There, a traveler

flying into JFK was asked to remove a condom filled with cocaine

from her vagina, though the government officers did not engage

in “any physical contact.” Id.

The Second Circuit’s precedents concerning intrusive

searches of the body underscore the uncertainty in this area of

Fourth Amendment jurisprudence and disprove the notion that a

reasonable officer knew or should have known that the alleged

conduct under the circumstances in this case was

unconstitutional. Though courts have subjected manual body

cavity searches to the most exacting scrutiny, the Second

Circuit has never imported that framework to the context of

border searches. On the contrary, the Second Circuit has

suggested that, regardless of the nature of the strip search, a

“reasonable suspicion” standard applies at an international

border. Ogberaha, 771 F.2d at 658 (finding the standard

"flexible enough to afford the full measure of protection which

the fourth amendment commands”). And the Second Circuit has not

addressed whether the security interests that accompany the

management of international airports—where travelers are known

to secrete contraband in or near body cavities—may support a

greater degree of latitude under the Fourth Amendment in

conducting cavity searches than in the everyday, civil context.

The most analogous case on point countenances a level

of reasonable suspicion that may well be met here. Like the

traveler in Ogberaha who presented a few indicators of

suspicious activity, Ms. Lovell had unusual travel patterns,

potential gaps in her narrative of being a school counselor and

where she stayed in Jamaica (despite purportedly visiting

regularly). Even assuming that the manner of the search of Ms.

Lovell’s breast and groin area was unconstitutional under the

circumstance, in light of Second Circuit precedent, the Court

cannot find that the officers knew or should have known that

touching those areas over Ms. Lovell’s clothing during a pat-

down search was clearly unconstitutional. The Second Circuit

has found a search of a traveler’s vagina based on substantially

the same degree of suspicion as was present here to be within

constitutional bounds. Ogberaha, 771 F.2d at 659-60.

In deciding Defendants’ summary judgment motion, the

Court accepts as true Ms. Lovell’s testimony that Defendant

Parker “inserted her fingers into [Ms. Lovell’s] vagina” over

Ms. Lovell's clothing. Neither the Supreme Court nor the Second

Circuit, however, has addressed the circumstances in which an

officer may conduct manual body cavity searches over the surface

of an individual’s clothing-—whether in the border search

context or not. Here, construing the facts in a manner

favorable to Ms. Lovell, where Ms. Lovell indisputably was not

asked to remove her clothing and Defendant Parker’s gloved hand

did not make contact with Ms. Lovell’s skin, it is not clearly

established that the manner of search conducted by Defendant

Parker, required anything more than the articulated factors of

reasonable suspicion that the Second Circuit accepted as

sufficient in Ogberaha. And Ms. Lovell's own testimony

demonstrates that Defendant Parker indeed had some suspicion

that there was contraband in her groin area: Ms. Lovell

testified that while conducting the pat-down of Ms. Lovell’s

groin area, Defendant Parker inquired, “what is down there?”

Considering that Defendants had a sufficient basis to search for

hidden contraband, and the undisputed facts indicate that they

suspected contraband could be hidden in Ms. Lovell’s groin area

that was initially obscured by her sweatshirt, the Court finds

that the law was not and still is not sufficiently established

for Defendant Parker to have known that the manner of her pat-

down of Ms. Lovell was unconstitutional.

In the instant case, based on the totality of

circumstances, the manner of Ms. Lovell's pat-down was not

unconstitutional under any existing case law. Therefore, this

Court finds that the right to be protected from a cavity search

over clothing, when officers have reasonable suspicion that an

individual may be smuggling contraband at a border entry point,

was not clearly established at the time Defendants conducted the

search of Ms. Lovell. Accordingly, the Defendants are entitled

to qualified immunity.

B. Fifth Amendment Claim

The Court also finds that Ms. Lovell’s Fifth Amendment

claim was unsupported by evidence or statutory authority to

warrant its survival on summary judgment. See Transflo Terminal

Servs., Inc. v. Brooklyn Res. Recovery, Inc., 248 F. Supp. 3d

397, 399 (E.D.N.Y. 2017) (“Conclusory statements, devoid of

specifics, are insufficient to defeat a properly supported

motion for summary judgment.”); see also Johnson v. Harron, No.

91-CV-1460, 1995 WL 319943, at *34 (N.D.N.Y. May 23, 1995), on

reconsideration in part, No. 91-CV-1460, 1995 WL 411175

(N.D.N.Y. July 6, 1995)(“The cursory treatment given this claim

leaves the court to wonder how seriously the parties consider it

to be.”). There is no evidence in the record from which a jury

could find that Defendants specifically targeted Ms. Lovell for

a search due to her race and gender, other than the conclusory

statement that Defendants were motivated by animus. In fact,

aside from asserting the claim itself, Ms. Lovell's counsel’s

briefing does not provide any evidence, arguments, or details in

support of her claim. (See ECF Nos. 66-3 Pl. Opp’n. to Summ.

J.; 70, Pl. Supp. Briefing.) Ms. Lovell cannot defeat summary

judgment by “offering purely conclusory allegations of

discrimination,” Meiri v. Dacon, 759 F.2d 989, 998 (2d

Cir.1985), or by offering evidence in opposition that is merely

speculative. Dister v. Continental Group, Inc., 859 F.2d 1108,

1116-1117 (2d Cir.1988). Instead, to defeat summary judgment,

the nonmoving party must set forth “concrete particulars”

showing that a trial is needed to resolve disputed issues of

material fact, which Ms. Lovell has failed to do. R.G. Group,

Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984).

CONCLUSION

For the foregoing reasons, Defendants’ motion for

summary judgment is granted in its entirety. The Clerk of Court

is respectfully requested to enter judgment for Defendants and

close this case.

SO ORDERED.

/s/ __

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

August 3, 2022