Braun v. Maynard

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HEATHER BRAUN; JOSEPH L. 

GOODRICH; GEORGE KEEFER; KRISTI

MORROW; ROBERT MUMMA; JOSEPH

L. RODRIGUEZ; JEREMY SOWERS;

AMBER WARD,

Plaintiffs-Appellants,

v.

GARY D. MAYNARD; MICHAEL J.

STOUFFER; D. KENNETH HORNING;  No. 10-1401

JAMES V. PEGUESE; FREDERICK

WALLS; KENNETH FRICK; TONYA

LEONARD; RHONDA RALSTON; JOHN

DOE, in their individual capacities

as employees of the Maryland

Department of Public Safety and

Correctional Services,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(1:09-cv-01897-JFM)

Argued: May 10, 2011

Decided: July 21, 2011

Before WILKINSON and SHEDD, Circuit Judges, and

David C. NORTON, Chief United States District Judge for

the District of South Carolina, sitting by designation.

2 BRAUN v. MAYNARD

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Shedd and Judge Norton joined.

COUNSEL

ARGUED: Robert David Schulte, SCHULTE BOOTH, PC,

Baltimore, Maryland, for Appellants. Michael O’Connor

Doyle, OFFICE OF THE ATTORNEY GENERAL OF

MARYLAND, Baltimore, Maryland, for Appellees. ON

BRIEF: Neil Hyman, LAW OFFICE OF NEIL S. HYMAN,

LLC, Bethesda, Maryland, for Appellants. Douglas F. Gans-

ler, Attorney General of Maryland, Lisa O. Arnquist, Assis-

tant Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF MARYLAND, Baltimore, Maryland, for

Appellees.

OPINION

WILKINSON, Circuit Judge:

On August 12, 2008, officials at the Maryland Correctional

Training Center conducted a drug interdiction operation using

a portable ion scanning machine capable of detecting minute

amounts of controlled substances. Upon entering the building,

several employees and independent contractors of the Mary-

land Department of Public Safety and Correctional Services

alerted for the presence of drugs and were then searched.

Nothing turned up. The aggrieved employees filed suit, alleg-

ing principally that the searches violated their Fourth Amend-

ment rights. The district court held that the defendants were

entitled to qualified immunity and dismissed the suit.

We affirm. The prison officials in this case faced difficult

questions lying at the intersection of the Fourth Amendment’s

broad commands, the prison’s compelling needs, and technol-

BRAUN v. MAYNARD 3

ogy’s innovations. Although it was clearly established that

intrusive prison employee searches require reasonable suspi-

cion, it was far from clear that the devices at issue here could

not meet that standard. Because no clearly established federal

law placed the officers on notice that fighting contraband in

the prison environment in this manner was unlawful, we agree

with the district court that the immunity attached.

I.

According to the complaint, in the summer of 2008 defen-

dant Frederick Walls, a captain at the Maryland Correctional

Training Center ("MCTC") in Hagerstown, Maryland, and

defendant James Peguese, the Assistant Commissioner of

Security Operations, requested that the state Department of

Public Safety and Correctional Services’s ("DPSCS") Ionscan

team perform a drug interdiction operation at MCTC. Captain

Walls made this request at the direction of his supervisors,

including defendant Kenneth Horning, MCTC’s warden. The

interdiction team, employed by DPSCS, uses a scanning

device called an Ionscan to detect the presence of illicit sub-

stances on a person’s body, clothing, and belongings. After a

sample is collected, the device uses ionization to determine

the sample’s chemical identity. Through this method, the Ion-

scan can detect microscopic amounts of controlled substances.

The request was approved by MCTC and DPSCS supervi-

sory personnel. On August 12, 2008, the Ionscan team, led by

defendant Lieutenant Tonya Leonard, set up an Ionscan sta-

tion in MCTC’s visitor registration area. The complaint

alleges that before any scanning took place, all of the defen-

dants agreed that a positive result from the Ionscan machine

would be followed by a vehicle search by a K-9 or correc-

tional officer, which would itself be followed by a "strip and

visual body cavity search" regardless of whether the vehicle

search turned up any drugs. At the time, however, there was

no official policy governing strip and cavity searches of

prison employees.

4 BRAUN v. MAYNARD

The plaintiffs, employees and independent contractors of

the DPSCS, were scanned on their way into MCTC that

morning. While the great majority of persons tested negative,

plaintiffs each tested positive in varying degrees for the pres-

ence of drugs. The plaintiffs allege that Lieutenant Leonard

made a "judgment call" that anyone who set off an alarm

would be subject to the searches, regardless of the Ionscan’s

reading on the amount of the substance detected.

According to the complaint, the searches that took place

after the positive alert followed a roughly similar pattern. For

instance, after one plaintiff’s positive Ionscan alarm and fruit-

less vehicle search she was asked to remove her clothing

piece by piece, squat, and cough. She, like the other plaintiffs,

does not allege that she was subjected to a manual body cav-

ity search or otherwise physically touched during the visual

inspection. Her search, like those of the other plaintiffs, was

conducted by same-sex officers in a public restroom. None of

the plaintiffs allege, however, that anyone other than the

searching officers was present. After the search all plaintiffs

passed a urinalysis test.

There were a few differences in the search allegations. One

of the plaintiffs, Sergeant Robert Mumma, did not claim that

he was required to fully undress, and several of them —

George Keefer, Officer Jose Rodriguez, and Officer Jeremy

Sowers — did not indicate that they were forced to squat and

cough, though Sowers did state that he was subjected to a "vi-

sual body cavity search." Those searched claim they were not

given a sufficient chance to explain how they could have

innocently come into contact with illicit substances. Although

there appear to be no allegations that the searching officers

committed misconduct during the actual searches themselves

or that the searches themselves took more than a brief amount

of time, the plaintiffs do allege that on the day in question, the

Ionscan machine was neither operated nor operating correctly.

The plaintiffs filed suit against the previously mentioned

defendants, as well as against Secretary Gary Maynard of the

BRAUN v. MAYNARD 5

DPSCS, Commissioner Michael Stouffer of the DPSCS’s

Division of Corrections, Lieutenant Rhonda Ralston (one of

the officers who conducted the searches of the female plain-

tiffs), and Lieutenants Kenneth Frick and John Doe (who

along with Captain Walls conducted the searches of the male

plaintiffs). The district court granted the defendants’ motion

to dismiss, rejecting the plaintiffs’ Fourth Amendment claim

on grounds of qualified immunity and their other causes of

action for failing to state a claim. It reasoned that although

there were difficult questions regarding the usefulness of the

Ionscan machine and about the adequacy of Maryland’s

search protocols, "[u]ltimately, because the law regarding the

use of Ionscan machines was not clear at the time of the

search, the Defendants are entitled to qualified immunity."

II.

We review the district court’s decision to grant a motion to

dismiss de novo. See E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). During that

review, we accept the complaint’s factual contentions as true,

see id., though we need not accept the plaintiffs’ legal conclu-

sions, see Simmons v. United Mortg. & Loan Inv., LLC, 634

F.3d 754, 768 (4th Cir. 2011). Here, we limit our review to

the complaint itself.1

1

The plaintiffs attached a copy of an internal DPSCS report regarding

the incident to their response to the defendants’ motion to dismiss. We

generally do not consider materials other than the complaint and docu-

ments incorporated into it when evaluating that complaint under Rule

12(b)(6), though courts may consider a document attached by the defen-

dant to its motion to dismiss where the document "was integral to and

explicitly relied on in the complaint" and where "the plaintiffs do not chal-

lenge its authenticity." Am. Chiropractic Ass’n, Inc. v. Trigon Healthcare,

Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quotation omitted). We do not

consider the report here because it was not explicitly relied upon in the

complaint and because the plaintiffs argued that the district court should

not consider evidence outside of the pleadings, attaching the report for

consideration only if the district court disagreed with them on this point.

6 BRAUN v. MAYNARD

To state a claim under 42 U.S.C. § 1983, plaintiffs must

allege facts suggesting that their federal rights have been vio-

lated by state officials. However, even where an officer vio-

lated the plaintiff’s rights, he may claim immunity if the law

in question was not clearly established. See Harlow v. Fitz-

gerald, 457 U.S. 800, 818 (1982).

In keeping with courts’ reluctance to answer constitutional

questions unnecessarily, we may determine whether the con-

stitutional rights allegedly violated here were clearly estab-

lished without first determining whether those rights exist at

all. See Pearson v. Callahan, 129 S. Ct. 808 (2009). In this

case, we need not address whether the searches violated the

Constitution. Inasmuch as the law regarding Ionscans and

searches in the prison employee context was not clearly estab-

lished, the defendants are entitled to qualified immunity. We

begin by laying out that immunity’s basic principles and then

address the lack of clearly established law regarding these

searches.

A.

The basic principles surrounding qualified immunity are

well settled. Qualified immunity "strikes a balance between

compensating those who have been injured by official con-

duct and protecting government’s ability to perform its tradi-

tional functions." Wyatt v. Cole, 504 U.S. 158, 167 (1992). It

ensures that officials are not unfairly strung up for money

damages as a result of "bad guesses in gray areas." Maciar-

iello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). It encour-

ages capable citizens to join the ranks of public servants by

removing the threat of constant litigation. See, e.g., Mitchell

v. Forsyth, 472 U.S. 511, 525-26 (1985). And it safeguards

officers’ discretion and expertise against judicial overreach-

ing. "[P]olice officers [and] prison wardens . . . routinely

make close decisions in the exercise of the broad authority

that necessarily is delegated to them." Davis v. Scherer, 468

U.S. 183, 196 (1984). Second-guessing such judgment calls

BRAUN v. MAYNARD 7

would inhibit "principled and fearless decision-making,"

Richardson v. McKnight, 521 U.S. 399, 408 (1997) (quotation

omitted), and displace experienced local administration with

more removed judicial policymaking. The real-world results

of such forays would not be salutary.

B.

The officers here are alleged to have violated the Fourth

Amendment’s proscription "against unreasonable searches

and seizures . . . ." U.S. Const. amend. IV. Applying the

Fourth Amendment has always required consideration of a

search’s context and characteristics rather than a mechanical

application of hard-and-fast rules. See, e.g., Bell v. Wolfish,

441 U.S. 520, 559 (1979) (examining the location and scope

of the search, the justification for it, and the manner in which

it was executed). Plaintiffs’ expectations of privacy are neces-

sarily conditioned by the fact of their employment in a correc-

tional institution. In recognition of these lowered

expectations, we have previously concluded that where prison

authorities "possess a reasonable and individualized suspicion

that an employee is hiding contraband on his or her person,"

they may conduct a visual body cavity search of that

employee. Leverette v. Bell, 247 F.3d 160, 168 (4th Cir.

2001).

III.

Proper notice to public officials lies at the heart of qualified

immunity. After all, it would be neither fair to individual pub-

lic servants nor conducive to effective governance to ambush

and blindside officials with sizeable damage awards. One may

legitimately agree or disagree with the use of Ionscans in

penal facilities, but that is not the question. For purposes of

this case, it has never been clearly established that a strip or

visual body cavity search after an Ionscan alarm cannot sat-

isfy Fourth Amendment standards.

8 BRAUN v. MAYNARD

A.

For several reasons, nothing in the Supreme Court’s deci-

sions or in our own indicates that a positive Ionscan result

cannot generate reasonable suspicion. First, the reasonable

suspicion standard is not an exacting one. It requires only "a

moderate chance of finding evidence of wrongdoing," Safford

Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639

(2009), an amount "considerably less than proof of wrongdo-

ing by a preponderance of the evidence," United States v.

Sokolow, 490 U.S. 1, 7 (1989). And reasonable suspicion can

come from sources categorically less reliable than those that

may be relied upon to meet the higher probable cause stan-

dard. See Alabama v. White, 496 U.S. 325, 330 (1990).

Second, there was no reason for the searching officers to

believe that the Ionscan could not reach this threshold. Both

sides accept the fact that a properly deployed, properly func-

tioning Ionscan device can detect drugs and other chemicals.

In keeping with this recognized capability, ion scanning

machines have been widely used, see United States v.

Hernández-De La Rosa, 606 F. Supp. 2d 175, 179 (D.P.R.

2009) (noting expert testimony that "fifty thousand ion scan

devices [are] in use throughout the world"), and in a variety

of law enforcement settings, see, e.g., United States v.

Alvarez-Manzo, 570 F.3d 1070, 1073 (8th Cir. 2009) (noting

the use of ion scanning to confirm the presence of drugs in a

suspicious bag); United States v. Rodriguez-Durán, 507 F.3d

749, 755-56 & n.5 (1st Cir. 2007) (noting the use of ion scan

evidence at trial to prove that a vessel contained cocaine).

Finally, though the case law on point is particularly sparse,

several courts have found Ionscan evidence reliable enough.

See, e.g., Hernández-De La Rosa, 606 F. Supp. 2d at 187-88

(upholding the introduction of expert evidence based on

mobile ion scanning in a criminal prosecution); Mitchell v.

Dep’t of Corr., 675 So.2d 162, 165 (Fla. Dist. Ct. App. 1996)

("Because it cannot be said that the Ionscan test is unreason-

BRAUN v. MAYNARD 9

able, we conclude that a positive test result is ‘good reason’

to conduct further reasonable search procedures of the kind

employed here and therefore may constitute a reasonable sus-

picion.").

While some courts have expressed concerns about the tech-

nology, see, e.g., United States v. Romero, 32 F.3d 641, 647

(1st Cir. 1994), none has come close to barring its use or

declaring its inability to create reasonable suspicion. In such

circumstances, it was not clearly established that the Ionscan

could not create reasonable suspicion. See Ashcroft v. al-Kidd,

No. 10-98, slip op. at 9 (U.S. May 31, 2011) ("At the time of

al-Kidd’s arrest, not a single judicial opinion had held that

pretext could render an objectively reasonable arrest pursuant

to a material-witness warrant unconstitutional.").

B.

In response to this line of reasoning, plaintiffs contend that

Leverette provided all the clearly established law needed to

put the defendants on notice: Leverette suggested that search-

ing officers must have "reasonable cause to believe that drugs

. . . are concealed in the particular place" to be searched, Lev-

erette, 247 F.3d at 168 (quoting Hunter v. Auger, 672 F.2d

668, 675 (8th Cir. 1982)), and the allegedly malfunctioning

and misused Ionscan machine could not have provided that

reasonable cause here.

This argument misfires in a number of ways. In qualified

immunity analysis, the right allegedly violated must be

defined "at a high level of particularity." Campbell v. Gallo-

way, 483 F.3d 258, 271 (4th Cir. 2007) (quotation omitted).

Otherwise, plaintiffs would be able to "transform[ ] . . . a

guarantee of immunity into a rule of pleading" by alleging

violations of well-established but highly abstract rights.

Anderson v. Creighton, 483 U.S. 635, 639 (1987). We cannot

just ask whether reasonable suspicion was clearly needed, but

rather whether a device like the Ionscan clearly could not pro-

10 BRAUN v. MAYNARD

vide that suspicion. As discussed above, this latter proposition

has not been embraced by the courts, much less in clearly

established terms.

The plaintiffs’ argument also ignores the differences

between Leverette and this case. Previous cases need not be

on all fours with the current one to clearly establish the law

for qualified immunity purposes. See Amaechi v. West, 237

F.3d 356, 362-63 (4th Cir. 2001). But they must be close

enough that "existing precedent . . . placed the statutory or

constitutional question beyond debate." al-Kidd, No. 10-98,

slip op. at 9 (U.S. May 31, 2011) (emphasis added); see also

Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991) (noting

that the case law must "leave no doubt that the challenged

action was unconstitutional.").

Leverette does not satisfy this condition. It discussed prison

searches based on tips by informants, perhaps the Fourth

Amendment’s most recurring characters. See Leverette, 247

F.3d at 163; see also Florida v. J.L., 529 U.S. 266 (2000);

Alabama v. White, 496 U.S. 325 (1990); Illinois v. Gates, 462

U.S. 213 (1983). Leverette focused on the factors important

to the informant context: the specificity of the tip, the likely

accuracy of the informant, and the decisionmaking process

used in choosing whether or not to search. See Leverette, 247

F.3d at 168.

Leverette had nothing to say about Ionscans, or even about

new technologies generally. It is often difficult for judges, let

alone prison officials, to apply traditional Fourth Amendment

concepts to cases involving novel technology. See, e.g., City

of Ontario v. Quon, 130 S. Ct. 2619, 2629-30 (2010) (noting

the hazard of laying out broad rules regarding expectations of

privacy in employer-provided electronic communication

devices); Mitchell, 472 U.S. at 531-32 (tracing the Court’s

struggles in evaluating warrantless wiretapping). This case is

no exception. For example, a prison official can readily apply

common sense and personal experience when assessing an

BRAUN v. MAYNARD 11

informant’s reliability. But questions regarding the Ionscan’s

reliability, as well as regarding the threshold reading required

to justify a search, present not only less ploughed legal

ground but more difficult technical considerations. In other

words, Leverette cannot be easily transposed from the infor-

mant context into the Ionscan context and therefore could not

have provided clearly established law barring the searches.

C.

Allegations that the Ionscan machine was not operating

correctly and not deployed pursuant to official policy do not

alter the outcome. In conducting qualified immunity analysis,

we look to "the information possessed by the searching offi-

cials" and to what a reasonable officer would have concluded

from that information. Anderson, 483 U.S. at 641. The plain-

tiffs, however, do not allege facts indicating that those who

planned or participated in the searches had reason to know

about any machine malfunctioning. They do not allege facts

indicating that any defendant knew or had reason to know that

the Ionscan team misused the device. They do not allege facts

suggesting that the searching officers or those who planned

the interdiction operation had reason to know that the Ionscan

team’s training was so poor that its results could not be

trusted. In short, they do not allege the kind of misuse of

authority and disregard of law that should lead to monetary

damages.

IV.

Similarly, it was not clearly established that searches of the

kind alleged here would violate the Constitution if based upon

a positive Ionscan. In Leverette, the court noted that as a

search’s intrusiveness increases, the amount of particularized

information supporting it must also increase. Leverette, 247

F.3d at 168. We held, though, that "prison authorities gener-

ally may conduct a visual body cavity search when they pos-

12 BRAUN v. MAYNARD

sess a reasonable and individualized suspicion that an

employee is hiding contraband on his or her person." Id.

The defendants could not reasonably have known that the

information here would not meet these standards. It is crucial

to remember the context in which these searches took place.

As the Supreme Court has emphasized, operating a modern

prison is an "inordinately difficult undertaking." Turner v.

Safley, 482 U.S. 78, 85 (1987). The "intractable problems" of

drug smuggling and drug use within prisons, Overton v. Baz-

zetta, 539 U.S. 126, 134 (2003), only exacerbate those diffi-

culties, recreating inside prison walls the same plagues of

substance abuse and gang violence that landed many prisoners

there in the first place. Federal judicial micromanagement of

state prison administration risks unforeseen and counterpro-

ductive consequences, see Turner, 482 U.S. at 84-85, and

courts therefore afford prison administrators latitude in deal-

ing with this volatile environment and the risks it poses to the

health and safety both of prison staff and of the inmates them-

selves, see Overton, 539 U.S. at 132.

In the qualified immunity context, these factors counsel

against hastily concluding that the law clearly forbade the

officers’ conduct. Requiring prison administrators, on pain of

individual damages, to refrain from embracing technological

advances in prison administration would substitute judicial

guesswork for expert administration and hamstring innovative

efforts to resolve complex problems and to address changing

conditions within our correctional system.

With this context in mind, it was not clearly established

that the searches here could not meet Leverette’s standard. As

the complaint asserts, an Ionscan can detect the presence of

drugs on a person’s clothing or possessions. It defies belief,

then, to think that a positive Ionscan test gives no indication

that someone is "hiding contraband on his or her person," as

prison employees are unlikely to waltz into prison with con-

traband "hidden" only on their shirts. Indeed, given the nature

BRAUN v. MAYNARD 13

of prison security, it is likely that an employee smuggler

would place the contraband in a fairly concealed location on

his person. We need not and do not hold that positive Ionscan

results will always justify a strip search; nonetheless, it was

not clearly established that the Ionscan results obtained here

could not.

We note finally that the alleged searches were conducted in

a largely professional manner. Although any search like these

will of necessity be intrusive, the officers took steps to limit

that intrusion. There are no allegations that the plaintiffs were

subjected to manual body cavity searches or physically

touched during the searches. According to the complaint,

same-sex officers conducted the searches, and though they

conducted them in a public restroom, the plaintiffs do not

allege that anyone else was present. Moreover, the plaintiffs

do not claim that the searches themselves took an excessive

amount of time or that they were harassed or demeaned dur-

ing them. If, as some of the plaintiffs contend, they were later

subjected to demeaning commentary because of the searches,

that does not serve to render the searches themselves uncon-

stitutional. We do not for a moment minimize the sensitivity

of searches such as these, but that does not lead to the conclu-

sion that the officers were carrying out indisputably important

correctional functions in violation of clearly established fed-

eral law.2

V.

Given the constitutional values at stake in this case, prison

authorities would do well to construct regimes that balance

solicitude for the human dignities protected by the Fourth

Amendment with what are undeniably pressing institutional

2

The district court’s dismissal of plaintiffs’ state law claims was not

appealed. We have also reviewed the district court’s rejection of the plain-

tiffs’ supervisory liability claims and have found no reason to disagree

with its decision to dismiss them.

14 BRAUN v. MAYNARD

needs. See Leverette, 247 F.3d at 166 ("[W]e must balance the

government’s need for the particular search against the inva-

sion of personal rights entailed by the search.").

Intermediate steps such as interviews, consultation of

employment histories and job duties, pat-downs, and other

less invasive measures may render more problematic intru-

sions unnecessary after every Ionscan alert. We of course do

not suggest that strip searches are invariably out of bounds,

but such searches plainly are a demeaning form of treatment,

see Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996), and

one that should not be visited casually by an institution upon

its own employees. Clearer policies addressing the reliability

of different Ionscan readings and training guidelines for Ion-

scan operators may spare institutions later headaches in court.

Such policies are for prison experts to develop, not the

courts. Running a prison is challenging even in the best of cir-

cumstances, see Thornburg v. Abbott, 490 U.S. 401, 407

(1989), and the presence of contraband in prisons threatens to

make a tense environment more combustible still. The offi-

cials here sought to thwart this threat by using advanced tech-

nology and employee searches, an area in which law was

sparse and lines were anything but clearly set.

To impose monetary liability on these defendants in this

uncertain landscape would essentially make them scapegoats

for society’s underlying ambivalence about the costs and ben-

efits of new devices and instruments. The Fourth Amend-

ment’s broad standards are often difficult to apply in the

prison and technology contexts, let alone both, and nothing

from the Supreme Court or this court clearly prohibited the

officials from addressing their pressing needs in this way.

Whatever exception might be taken to their actions, there

should be no exception to the proposition that officials placed

in tough spots are entitled to fair notice that what they did vio-

lated federal law. See, e.g., Crawford-El v. Britton, 523 U.S.

574, 591 (1998) (noting the "obvious unfairness" of imposing

BRAUN v. MAYNARD 15

liability on officials whose conduct did not violate clearly

established federal law). The defendants here did not receive

that notice, and the judgment of the district court is accord-

ingly affirmed.

AFFIRMED