Doe v. Broderick

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN DOE,

Plaintiff-Appellee,

v.

GARRETT G. BRODERICK,

Defendant-Appellant,

and

No. 99-1893

UNKNOWN POLICE OFFICERS, JOHN

DOE 1 THROUGH 20, Fairfax County

Police Officers, Fairfax County

Police Department, Individually and

in their Official Capacities; COUNTY

OF FAIRFAX, VIRGINIA,

Defendants.

JOHN DOE,

Plaintiff-Appellant,

v.

COUNTY OF FAIRFAX, VIRGINIA,

Defendant-Appellee,

and

No. 99-1894

GARRETT G. BRODERICK; UNKNOWN

POLICE OFFICERS, JOHN DOE 1

THROUGH 20, Fairfax County Police

Officers, Fairfax County Police

Department, Individually and in

their Official Capacities,

Defendants.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan Jr., Senior District Judge.

(CA-98-1722-A)

Argued: January 25, 2000

Decided: August 29, 2000

Before WILKINSON, Chief Judge, and WILLIAMS and

TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Traxler wrote the opinion, in which Chief Judge Wilkinson

joined. Judge Williams wrote an opinion concurring in part and dis-

senting in part.

_________________________________________________________________

COUNSEL

ARGUED: David John Fudala, Fairfax, Virginia, for Appellant. Rob-

ert Marvel Ross, Assistant County Attorney, Fairfax, Virginia, for

Appellee County; Joseph John McCarthy, DELANEY, MCCARTHY,

COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellee Doe.

ON BRIEF: David P. Bobzien, County Attorney, Robert Lyndon

Howell, Deputy County Attorney, Fairfax, Virginia, for Appellee

County.

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

John Doe brought an action against Detective Garrett G. Broderick,

see 42 U.S.C.A. § 1983 (West Supp 1998), alleging that Detective

Broderick violated Doe's rights under the Fourth Amendment and

under federal statutory law when Detective Broderick, without proba-

2

ble cause, entered the file room of a substance abuse treatment clinic

and searched Doe's confidential treatment records along with numer-

ous other patients' records. Doe also sought to impose municipal lia-

bility upon Fairfax County, Detective Broderick's employer. The

district court denied Detective Broderick qualified immunity at the

summary judgment stage, but dismissed Doe's claim against Fairfax

County. We affirm in part, reverse in part, and remand the matter for

trial.

I.

In August 1998, a jewelry store reported a grand larceny to the

Fairfax County Police Department. Detective Broderick was among

those assigned to investigate the matter. The report submitted by the

jewelry store indicated that the suspect, a white male, asked a sales

clerk to show him a diamond engagement ring. When she handed the

ring over for inspection, the suspect ran from the store and then fled

the scene in a vehicle parked nearby and driven by an accomplice.

The sales clerk, however, was able to obtain the tag number for the

vehicle. Broderick determined that the suspect had escaped in a car

stolen from a parking garage located in the same vicinity as the jew-

elry store. The parking garage was also situated near the Fairfax

Methadone Treatment Center ("the methadone clinic" or "clinic"), a

facility that provided treatment for a wide variety of substance abuse

problems.

Based on these facts, and his belief that drug addicts often engage

in criminal activity to support their habits, Detective Broderick

hypothesized that the suspect may have been a patient at the nearby

methadone clinic. He concluded that it would aid his investigation if

he could establish the identities of the patients who had been receiv-

ing treatment at the methadone clinic during or near the time that the

grand larceny occurred. Accordingly, Detective Broderick telephoned

the clinic and indicated that he wanted to examine records that would

reveal who was at the clinic at the time of the grand larceny. The

clinic refused, however, to disclose any information in the absence of

a court order.

As a result, Detective Broderick consulted Assistant Common-

wealth Attorney Ian Rodway for advice on how to proceed. Accord-

3

ing to Detective Broderick, he explained to Rodway why he believed

that the suspect could have come from the methadone clinic and

asked Rodway how he could obtain access to the clinic's records.

Rodway, however, remembers that Detective Broderick indicated that

he wanted only to examine the entries in the clinic's log book. In any

event, Rodway told him that it would be necessary for him to get a

search warrant. They did not discuss whether Detective Broderick's

theory established probable cause.

Detective Broderick then prepared a proposed search warrant that

directed that the clinic be searched for "records, documents and pho-

tographs." J.A. 227. He also drafted a supporting affidavit in which

he requested that the search include the following:

the full names of all patients, dates of birth, social security

numbers, photographs, home addresses and work locations

if available[,] the opening of any file cabinets, desks, clos-

ets, locked safes, boxes, bags, compartments or things in the

nature ther[e]of, found in or upon said premises to include

any and all electronically stored computer data.

J.A. 232. The affidavit explained that, based on his training and expe-

rience, Detective Broderick believed that the grand larceny suspect

was potentially someone who was receiving treatment at the metha-

done clinic:

Based upon your Affiant's training, experience and partici-

pation in other criminal investigations [of] offenses concern-

ing Grand Larcen[ies] your Affiant knows:

That it is common for people who have addictions[to] vari-

ous narcotics to include but not limited to heroin, cocaine,

methadone, and other schedule one and schedule two nar-

cotics to engage in these kinds of criminal activities to sup-

port [their] daily drug addictions. It is your Affiant's

experience that heroin and cocaine addicts will obtain stolen

vehicles and go on crime spree[s] stealing various merchan-

dise which is easily sold on the streets for [ ] quick cash to

support [their] drug addictions.

4

Based on [these] facts, it is your Affiant's belief that . . . (the

methadone treatment) clinic holds information on possible

suspects.

J.A. 232. After circulating the affidavit and proposed warrant to other

officers for feedback, Detective Broderick submitted the materials to

a magistrate judge, who issued a search warrant.

Armed with the warrant, Detective Broderick and five other Fairfax

County officers entered the methadone clinic to execute the search

warrant. Even though the police officers had a search warrant, an

employee of the clinic initially refused to open the door to the room

where the files were kept. She eventually relented, however, when the

officers threatened to charge her with obstruction of justice. A num-

ber of items were then seized from the clinic, including the clinic's

log book, files containing biographical information for seventy-nine

male patients being treated at the clinic, photographs of these patients,

and a large number of dosage sheets that detailed how much metha-

done was being administered to a given patient. The file of appellee

John Doe ("Doe") was among the records seized, and it included his

name, photograph, address, methadone dosage information, urine

screen history, and confidences Doe shared with his counselors at the

clinic. Doe's file contained only information that had been compiled

by the clinic staff during Doe's treatment at the clinic. Although Doe

was receiving treatment from the clinic during this general time

frame, he was not present at the clinic at the time of the search.

The patients' files were taken to the Fairfax County Police Depart-

ment and stored in Detective Broderick's office. Detective Broderick

went through the files in order to match the photographs of the

patients with the background information contained in the clinic

records. Photocopies were made of the patient photographs. Other-

wise, the material seized from the clinic was undisturbed. About two

weeks following the execution of the search warrant, Fairfax County

police returned the seized material and the photocopies to the clinic.

Doe brought this civil rights action against Detective Broderick and

Fairfax County, alleging that Broderick lacked probable cause to seize

his patient files maintained at the clinic and, therefore, violated his

right to be free from unreasonable searches and seizures under the

5

Fourth Amendment. See 42 U.S.C.A. § 1983 (West Supp. 1998). Doe

also alleged a section 1983 claim against the defendants on the alter-

nate basis that Detective Broderick failed to comply with the require-

ments of a federal statute that regulates the disclosure of drug

treatment records. See 42 U.S.C.A. § 290dd-2 (West Supp. 1998).1

Asserting that he was entitled to qualified immunity, Detective

Broderick moved for summary judgment on Doe's section 1983

claims against him in his individual capacity. The district court denied

Broderick's motion. The court concluded that Doe had a reasonable

expectation of privacy in his records at the methadone clinic, and that

Broderick lacked probable cause to conduct the search, thus violating

the Fourth Amendment and 42 U.S.C.A. § 290dd-2.2 The court then

determined that the law was clearly established at the time that

Broderick's search of Doe's files stored at the clinic violated his

rights under section 290dd-2. The district court also apparently con-

cluded, but did not expressly state, that Detective Broderick's conduct

violated clearly established Fourth Amendment law because the court

ultimately denied Detective Broderick's motion for summary judg-

ment based on qualified immunity. Detective Broderick immediately

appealed the denial of qualified immunity.

Fairfax County also moved for summary judgment. The district

court granted the motion, concluding that the record contained no evi-

_________________________________________________________________

1 The district court dismissed Doe's claims against Broderick in his

official capacity, a ruling that Doe does not challenge on appeal. Like-

wise, Doe does not challenge the district court's dismissal of his claim

under Virginia law against both defendants for intentional infliction of

emotional distress.

2 This statute provides that "[r]ecords of the identity, diagnosis, progno-

sis, or treatment of any patient which are maintained in connection with

the performance of any program or activity relating to substance abuse

education, prevention, training, treatment, rehabilitation, or research,

which is conducted, regulated, or directly or indirectly assisted by any

department or agency of the United States shall, except as provided . . .

2se be confidential and be disclosed only for the purposes and under the

circumstances expressly authorized under . . . this section." The law per-

mits disclosure upon consent of the patient, for a medical emergency,

pursuant to a court order upon a showing of good cause, and in other

very limited circumstances. See 42 U.S.C.A.§ 290dd-2(b).

6

dence that the alleged deprivation occurred because of a custom or

practice. Doe appeals from the district court's grant of summary judg-

ment to Fairfax County.

II.

We turn first to Detective Broderick's invocation of qualified

immunity, which protects government officials performing discretion-

ary functions "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. Fitzger-

ald, 457 U.S. 800, 818 (1982). Qualified immunity exists fundamen-

tally to protect officers in the performance of their duties unless they

are "plainly incompetent" or they "knowingly violate the law." Malley

v. Briggs, 475 U.S. 335, 341 (1986).

To determine whether Detective Broderick is entitled to qualified

immunity, we follow a two-step analytical process. First, we must

determine whether Doe has alleged the deprivation of a constitutional

or statutory right in the first place. See Wilson v. Layne, 526 U.S. 603,

609 (1999). If so, we may proceed to determine whether Detective

Broderick is entitled to qualified immunity or whether, because he ran

afoul of clearly established constitutional rights, he is to be held per-

sonally accountable for his unlawful conduct. See id.; Harlow, 457

U.S. at 818.

Accordingly, we begin with the first inquiry and address Doe's

argument that Detective Broderick abridged his rights under both 42

U.S.C.A. § 290dd-2 and the Fourth Amendment to the United States

Constitution. We consider these rights in turn.

A.

Doe first contends that Congress has afforded him an individual

statutory right under 42 U.S.C.A. § 290dd-2, which prohibits, except

in limited circumstances, the disclosure of "[r]ecords of the identity,

diagnosis, prognosis, or treatment of any patient which are maintained

in connection with the performance of any program or activity relat-

ing to substance abuse education, prevention, training, treatment,

7

rehabilitation, or research." 42 U.S.C.A.§ 290dd-2(a). The statute

sharply limits the availability of such records for use in criminal pro-

ceedings: "Except as authorized by a court order granted under sub-

section (b)(2)(C) of this section, no record referred to in subsection

(a) of this section may be used to initiate or substantiate any criminal

charges against a patient or to conduct any investigation of a patient."

42 U.S.C.A. § 290dd-2(c). In turn, subsection (b)(2)(C) permits dis-

closure only upon an "application showing good cause therefor,

including the need to avert a substantial risk of death or serious bodily

harm."3 Significantly, the statute imposes criminal sanctions on those

who transgress it, providing that "[a]ny person who violates any pro-

vision of this section or any regulation issued pursuant to this section

shall be fined in accordance with Title 18." 42 U.S.C.A. § 290dd-2(f).

There is no question that the confidentiality and disclosure provi-

sions contained in section 290dd-2 were not satisfied. But, Detective

Broderick's failure to observe the requirements of section 290dd-2, or

any other federal statute, does not automatically give rise to a civil

rights claim pursuant to section 1983. This is because "[s]ection 1983

itself creates no rights; rather it provides `a method for vindicating

federal rights elsewhere conferred.'" Kendall v. City of Chesapeake,

174 F.3d 437, 440 (4th Cir. 1999) (quoting Albright v. Oliver, 510

U.S. 266, 271 (1994)). "In order to seek redress through § 1983 . . .

a plaintiff must assert the violation of a federal right, not merely a

violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340

(1997) (emphasis in original). Even if a civil rights plaintiff has

shown that a federally-created right has been abridged, section 1983

is still unavailable as a remedy if "Congress has foreclosed such

enforcement of the statute in the enactment itself." Wright v. City of

_________________________________________________________________

3 The statutory text further instructs that

In assessing good cause the court shall weigh the public interest

and the need for disclosure against the injury to the patient, to

the physician-patient relationship, and to the treatment services.

Upon the granting of such order, the court, in determining the

extent to which any disclosure of all or any part of any record

is necessary, shall impose appropriate safeguards against unau-

thorized disclosure.

42 U.S.C.A. § 290dd-2(b)(2)(C). Naturally, disclosure is also permitted

if the patient consents. See 42 U.S.C.A.§ 290dd-2(b)(1).

8

Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423 (1987).

Congress can foreclose recourse to section 1983 by expressly forbid-

ding it in the statute or by impliedly doing so through the creation of

a comprehensive scheme to enforce the statute. See Blessing, 520 U.S.

at 341.

Thus, the violation of a federal statute is not actionable under sec-

tion 1983 if one of the following is true: (1) "the statute d[oes] not

create enforceable rights, privileges, or immunities within the mean-

ing of § 1983," or (2) "Congress has foreclosed such enforcement of

the statute in the enactment itself." Wright , 479 U.S. at 423. Detective

Broderick argues that both are true in this case. We agree that section

290dd-2 does not create individual entitlements that can be enforced

via section 1983.

The district court considered three factors, identified by the

Supreme Court in Blessing, in assessing whether a statute creates an

actionable federal right. Blessing tells us that the following questions

are relevant to the determination of whether a statute creates an indi-

vidual, enforceable right: Did Congress intend the statutory provision

to benefit plaintiff? Is the ostensible right so"vague and amorphous"

that its enforcement would prove difficult? And, is the statutory pro-

vision at issue phrased in mandatory rather than discretionary terms?

See Blessing, 520 U.S. at 340-41. The district court's application of

Blessing led it to conclude that Congress intended to provide Doe a

right against disclosure of his drug treatment records, except as spe-

cifically delineated in § 290dd-2, that is enforceable through civil liti-

gation.

In our view, Congress did not enact section 290dd-2 for the princi-

pal benefit of Doe and others who receive treatment at drug rehabili-

tation facilities. To begin with, we note that this statute is an unlikely

spot for Congress to establish an actionable right, and we say this pri-

marily because section 290dd-2 imposes criminal sanctions on would-

be violators. See 42 U.S.C.A. § 290dd-2(f). The Supreme Court his-

torically has been loath to infer a private right of action from "a bare

criminal statute," Cort v. Ash, 422 U.S. 66, 80 (1975), because crimi-

nal statutes are usually couched in terms that afford protection to the

general public instead of a discrete, well-defined group. See Califor-

nia v. Sierra Club, 451 U.S. 287, 294 (1981) (rejecting the view that

9

"a victim of any crime would be deemed an especial beneficiary of

the criminal statute's proscription"); Cannon v. University of Chi-

cago, 441 U.S. 677, 690 (1979).

Significantly, the fact that criminal statutes do not ordinarily create

individual rights led the Seventh Circuit Court of Appeals to conclude

that section 290dd-2 does not confer rights on any specific group of

beneficiaries because it is a criminal provision that was enacted for

the good of the public at large. See Chapa v. Adams, 168 F.3d 1036,

1038 (7th Cir.), cert. denied, 120 S. Ct. 104 (1999). We find Chapa's

reasoning persuasive:

Section 290dd-2 is a criminal prohibition, and it has been

a long time since the Supreme Court used a criminal law as

the basis of a private civil action. Some statutes defining

crimes also authorize agencies to file civil suits, and the

Court has occasionally held that these may be supplemented

by private enforcement--though [such] decisions . . . have

been in bad odor since the late 1970s. Today the principal

question is whether the statute creates rights in favor of

identified persons. If yes, a private action to enforce these

rights is apt to be inferred; otherwise not. Criminal statutes,

which express prohibitions rather than personal entitlements

and specify a particular remedy other than civil litigation,

are accordingly poor candidates for the imputation of private

rights of action.

Personal rights could in principle be derived from crimi-

nal statutes. The rule "do not rob a bank" implies that a bank

has a right not to be robbed. But the Supreme Court has

been unwilling to treat criminal laws as implying private

entitlements in this fashion and has held that the victims of

crime therefore lack any legal right to compel a criminal

prosecution. That reluctance to form private entitlements

from criminal prohibitions blocks the judicial creation of

private rights of action as well.

Chapa, 168 F.3d at 1037-38 (citations omitted).

We recognize, of course, that determining whether a statutory vio-

lation may be enforced through section 1983 "is a different inquiry

10

than that involved in determining whether a private right of action can

be implied from a particular statute." Wilder v. Virginia Hosp. Ass'n,

496 U.S. 498, 508 n.9 (1990); see Former Spec. Project Emp. Ass'n

v. City of Norfolk, 909 F.2d 89, 91-94 (4th Cir. 1990). These inquiries

overlap, however. In either case, we are required to determine

whether Congress has created a right that can be enforced. Compare

Blessing, 520 U.S. at 341 (a section 1983 plaintiff must "demon-

strate[ ] that a federal statute creates an individual right"), with Cort,

422 U.S. at 78 (a private right of action exists for the violation of a

federal statute only if "the statute create[s] a federal right in favor of

the plaintiff"). Cf. Suter v. Artist M., 503 U.S. 347, 363 (1992)

("Having concluded that § 671(a)(15) does not create a federally

enforceable right . . . under § 1983, the conclusion of the Court of

Appeals that the Adoption Act contains an implied right of action for

private enforcement . . . may be disposed of quickly.").

There is nothing in the text of section 290dd-2 to indicate that Con-

gress had in mind the creation of individual rights. For example,

instead of providing patients with the right to maintain the privacy of

their records, subsection (a) establishes a broad proscription against

the disclosure of substance abuse treatment records maintained not

only for rehabilitation but for education, training, and research. See

42 U.S.C.A. § 290dd-2(a). Subsection (b) permits disclosure pursuant

to a court order that balances "the public interest and the need for dis-

closure against the injury to the patient, to the physician-patient rela-

tionship, and to the treatment services." See 42 U.S.C.A. § 290dd-

2(b)(2)(C) (emphasis added). The language used in section 290dd-2

suggests that Congress was concerned primarily with fostering pro-

grams aimed at curtailing our nation's staggering substance abuse

problems. The primary beneficiary is the public. Ensuring the confi-

dentiality of patient records encourages voluntary participation in

such programs which, in turn, improves public health. See Chapa, 168

F.3d at 1038 ("Like other criminal statutes,§ 290dd-2 creates rights

in favor of society, not just particular members of society . . . .

Addicts will be more likely to accept treatment-- and the rest of

society therefore will be better off -- if treatment is confidential.").

Legislative history, moreover, confirms that Congress enacted the

section as part of an effort to combat the American public's drug

abuse problem and that Congress intended to encourage individuals

to seek treatment. See H.R. Conf. Rep. No. 92-775, at 28 (1972),

11

reprinted in 1972 U.S.C.C.A.N. 2045, 2072 (explaining the confiden-

tiality provisions in the predecessor to section 290dd-2 were neces-

sary because "[w]ithout that assurance, fear of public disclosure of

drug abuse or of records that will attach for life will discourage thou-

sands from seeking the treatment they must have if this tragic national

problem is to be overcome."); S. Rep. No. 102-131, at 2 (1992),

reprinted in 1992 U.S.C.C.A.N. 277, 278 (The Alcohol, Drug Abuse

and Mental Health Administration Reorganization Act, of which sec-

tion 290dd-2 was a part, was aimed at fighting "drug abuse, alcohol

abuse, and mental illness."); see generally Ellison v. Cocke County,

Tenn., 63 F.3d 467, 470-71 (6th Cir. 1995).

Only the Sixth Circuit Court of Appeals has considered the precise

issue before us -- whether 42 U.S.C.A. § 290dd-2 establishes rights

that are enforceable through section 1983. See Ellison, 63 F.3d at 471-

72. Ellison concluded that "Congress did not `unambiguously confer'

upon the patient-beneficiaries the right to enforce the statute's confi-

dentiality provision through a Section 1983 claim." Id. at 472 (quot-

ing Suter, 503 U.S. at 363). We agree. We hold that section 290dd-2

does not create "enforceable rights, privileges, or immunities within

the meaning of § 1983." Wright, 479 U.S. at 423.

Accordingly, we reverse the judgment of the district court to the

extent it permits Doe to pursue a section 1983 claim based on Detec-

tive Broderick's failure to comply with section 290dd-2.

B.

Doe next alleges that Detective Broderick trenched upon his Fourth

Amendment rights when Broderick seized his records from the meth-

adone clinic without probable cause. The district court concluded that

Doe had a legitimate expectation of privacy in his files that were held

by the methadone clinic, giving rise to the Fourth Amendment's pro-

tection against unreasonable searches and seizures. See United States

v. Miller, 425 U.S. 435, 440 (1976) ("[N]o interest legitimately pro-

tected by the Fourth Amendment is implicated by governmental

investigative activities unless there is an intrusion into a zone of pri-

vacy." (internal quotation marks omitted)). The district court found

that Detective Broderick's search of Doe's clinic records lacked prob-

able cause and therefore violated Doe's Fourth Amendment rights.

12

Turning to the question of qualified immunity, the district court

observed -- without elaborating further -- that Doe's Fourth Amend-

ment right against the search of his clinic files in the absence of prob-

able cause "was arguably not clearly established under existing law

at the time of [Detective] Broderick's search." J.A. 539. Nevertheless,

the district court apparently concluded that this right was clearly

established because the court ultimately denied Detective Broderick's

motion for summary judgment.

1.

We first consider Doe's claim that Detective Broderick violated his

Fourth Amendment rights by obtaining and examining his patient file

during the search of the methadone clinic without probable cause. We

conclude that Doe has stated a claim under the Fourth Amendment.

Indeed, at oral argument Detective Broderick conceded this point.

However, we are obliged to address this point to"promote[ ] clarity

in the legal standards for official conduct, to the benefit of both the

officers and the general public." Wilson, 526 U.S. at 609.

The protections of the Fourth Amendment are triggered when an

individual seeking refuge under the Fourth Amendment"has a legiti-

mate expectation of privacy in the invaded place" or the item seized.

Rakas v. Illinois, 439 U.S. 128, 143 (1978); see United States v.

Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992). Thus, searches and sei-

zures conducted in the absence of probable cause and a warrant are

impermissible only if the officer encroaches upon a legitimate expec-

tation of privacy. See California v. Greenwood , 486 U.S. 35, 39

(1988). A legitimate expectation of privacy exists when the individual

seeking Fourth Amendment protection maintains a"subjective expec-

tation of privacy" in the area searched that"society [is] willing to rec-

ognize . . . as reasonable." California v. Ciraolo, 476 U.S. 207, 211

(1986); see Oliver v. United States, 466 U.S. 170, 177-78 (1984)

(explaining that the legitimacy of a reasonable expectation of privacy

under the Fourth Amendment is determined by "our societal under-

standing").

There is no question that Doe maintained a genuine subjective

expectation of privacy in his records and files kept at the methadone

13

clinic.4 The more interesting issue is whether a patient's expectation

of privacy -- Doe's expectation of privacy -- in his treatment records

and files maintained by a substance abuse treatment center is one that

society is willing to recognize as objectively reasonable and thus

comes within ambit of the Fourth Amendment's protections. See

Greenwood, 486 U.S. at 39. We think it is.

Section 290dd-2 is relevant to the determination of whether there

is a "societal understanding" that Doe has a legitimate expectation of

privacy in his treatment records. In United States v. Miller, 425 U.S.

435, 442-43 (1976), the Supreme Court observed that"[t]he lack of

any legitimate expectation of privacy concerning the information kept

in bank records was assumed by Congress in enacting the Bank

Secrecy Act, the express purpose of which is to require records to be

maintained because they `have a high degree of usefulness in crimi-

nal, tax, and regulatory investigations and proceedings.'" The relevant

statute here, 42 U.S.C.A. § 290dd-2, does quite the opposite, making

access to the records more difficult for criminal investigation pur-

poses. Under these circumstances, we think that the statute is a fitting

indication that society is willing to recognize Doe's expectation of

privacy as objectively reasonable. See Florida v. Riley, 488 U.S. 445,

451 (1989) (plurality opinion) (analyzing defendant's expectation of

privacy by reference to FAA regulations); cf. Greenwood, 486 U.S.

at 43-44 (rejecting the argument that a reasonable expectation of pri-

vacy can be determined solely by state law because the analysis turns

on "our societal understanding" of what deserves Fourth Amendment

protection) (internal quotation marks omitted). The reason for this is

_________________________________________________________________

4 Doe gave unrefuted deposition testimony that his treatment at the

methadone clinic (which has always been voluntary) is "closely held"

information that he has revealed to no one outside of his immediate fam-

ily, the medical personnel administering treatment, and other individuals

participating in his therapy. J.A. 359. And, because payment for treat-

ment at the facility was provided through Medicare, some information

was necessarily released to those individuals who administer Medicare

funds. Doe testified, however, that his records were held by the clinic

"under lock and key" in a place "where[he] had reason to believe that

they would be safe" and remain private. J.A. 394. We have not been

directed to anything in the record that would seriously undermine what

Doe maintains was an actual expectation of privacy.

14

apparent: medical treatment records contain intimate and private

details that people do not wish to have disclosed, expect will remain

private, and, as a result, believe are entitled to some measure of pro-

tection from unfettered access by government officials. We are satis-

fied that Doe maintained a legitimate expectation of privacy in his

substance abuse treatment records for Fourth Amendment purposes.

2.

Having concluded that the Fourth Amendment protects Doe's legit-

imate privacy interest in his substance abuse treatment records, we

turn briefly to consider whether Detective Broderick's admitted con-

duct amounted to a violation of the Fourth Amendment. To be consti-

tutional, a search must be "reasonable." See Vernonia School Dist. v.

Acton, 515 U.S. 646, 653 (1995). When law enforcement officials are

searching for evidence of a crime, reasonableness requires probable

cause and a warrant unless one of the exceptions to the warrant

requirement applies. See Katz v. United States , 389 U.S. 347, 357

(1967) (calling "per se unreasonable" any search conducted without

a warrant issued by a judge or magistrate pursuant to a showing of

probable cause and in the absence of an exception).

The fundamental constitutional principle that search warrants must

be founded upon probable cause derives from the language of the

Fourth Amendment itself, which provides that "no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized." U.S. Const. amend. IV; see United States v. Har-

ris, 403 U.S. 573, 577 (1971). A police officer seeking the issuance

of a search warrant must present an affidavit containing facts suffi-

cient to "provide the magistrate with a substantial basis for determin-

ing the existence of probable cause." Illinois v. Gates, 462 U.S. 213,

239 (1983). Probable cause exists when "there are reasonably trust-

worthy facts which, given the totality of the circumstances, are suffi-

cient to lead a prudent person to believe that the items sought

constitute fruits, instrumentalities, or evidence of crime and will be

present at the time and place of the search." United States v. Suarez,

906 F.2d 977, 984 (4th Cir. 1990). The officer's supporting affidavit

must make it apparent, therefore, that there is some nexus between the

15

items to be seized and the criminal activity being investigated. See

Warden v. Hayden, 387 U.S. 294, 307 (1967).

By contrast, Detective Broderick's affidavit does not identify a sin-

gle fact that would suggest to a reasonable person that there was any

link whatsoever between the methadone clinic and the jewelry theft.

We agree with the district court that "if Broderick's premise -- that

drug addicts steal to finance their addictions -- were enough for prob-

able cause, it would allow him to search any location where drug

addicts might congregate during his investigation of any local theft.

. . . [H]e ostensibly could conduct routine, general searches of Fairfax

County." J.A. 535. The effect of issuing a warrant based on Detective

Broderick's hypothesis was to sanction an exploratory search through

clinic records based on a hunch, which is impermissible. See

Andresen v. Maryland, 427 U.S. 463, 480 (1976) (explaining the

Fourth Amendment is designed specifically to prohibit the use of gen-

eral warrants whereby the authorities engage in"a general, explor-

atory rummaging in a person's belongings.").

In sum, Detective Broderick's affidavit offered nothing more than

a guess, based not on specific and reliable facts but on a broad gener-

alization, that drug addicts are prone to steal things to support their

drug habits. Because a mere hunch that illegal activity is afoot will

not provide a valid foundation for the issuance of a search warrant,

see United States v. Sokolow, 490 U.S. 1, 7 (1989), we conclude --

and Detective Broderick does not dispute -- that there was no proba-

ble cause justifying the search and seizure of patient records from the

methadone clinic, and that no reasonable officer in his shoes could

have believed otherwise.5

_________________________________________________________________

5 Detective Broderick did not pursue the argument, either in his brief

or at oral argument, that he is shielded from liability because he sought

the warrant in good faith. The Supreme Court has instructed that the

appropriate question is whether any "officer of reasonable competence

would have requested the warrant" in the first place; if not, the magis-

trate's issuance of the warrant "is not just a reasonable mistake, but an

unacceptable error indicating gross incompetence or neglect of duty" and

"[t]he officer . . . cannot excuse his own default by pointing to the greater

incompetence of the magistrate." Malley v. Briggs, 475 U.S. 335, 346 n.9

(1986). Detective Broderick makes no assertion that the magistrate's

16

Thus, we find that Detective Broderick's search of the clinic's

records and files without probable cause violated Doe's rights under

the Fourth Amendment, as Detective Broderick candidly admits.

III.

We turn now to the question of qualified immunity. Detective

Broderick argues that he is protected by qualified immunity because

it was not clearly established in August 1998 that patients in drug

treatment facilities had a legitimate expectation of privacy in their

files stored at those facilities and, therefore, that it was not clearly

established that an officer would violate their Fourth Amendment

rights by entering a clinic and conducting a search of confidential

patient files and records without a warrant or the slightest hint of

probable cause. In view of the admitted lack of probable cause in his

warrant to search a private area within the clinic for closely held treat-

ment information, we think Detective Broderick misses the mark

when he argues that his immunity from suit hinges on Doe's expecta-

tion of privacy in his treatment records.

Qualified immunity exists to balance two significant, but incompat-

ible, policy considerations. See Anderson v. Creighton, 483 U.S. 635,

638 (1987). Section 1983 allows an aggrieved citizen to hold state and

local law enforcement officers liable for violating his federally pro-

tected rights; monetary liability "`may offer the only realistic avenue

for vindication of constitutional guarantees.'" Id. (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 814 (1982)). Subjecting officers to civil lia-

bility, however, creates the undesirable possibility that they would be

"unduly inhibit[ed] . . . in the discharge of their duties," id., and that

government would be "excessive[ly] disrupt[ed]," Harlow, 457 U.S.

at 818, by officers who are concerned primarily with avoiding per-

sonal liability. As this court has previously observed, "[t]he police

_________________________________________________________________

issuance of the warrant was "within the range of professional compe-

tence of a magistrate," i.e., that the magistrate made a reasonable mis-

take, which would relieve him of liability, see id., nor does he contend

that his consultation with an assistant Commonwealth Attorney prior to

applying for the warrant made his application any more reasonable, see

Swanson v. Powers, 937 F.2d 965, 972 (4th Cir. 1991).

17

must have the ability to move swiftly to solve crimes or to apprehend

dangerous criminals before evidence is destroyed or becomes stale,

witnesses die or vanish, or a suspect has a chance to escape or to

repeat the crime." Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir.

1998).

Therefore, police officers who are investigating criminal wrongdo-

ing are accorded qualified immunity to "shield[ ] [them] 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, 457 U.S. at 818. "Qualified

immunity thus provides a `safe-harbor' from tort damages for police

officers performing objectively reasonable actions in furtherance of

their duties." Porterfield, 156 F.3d at 568 (emphasis added). This

"safe-harbor" ensures that officers will not be liable for "bad guesses

in gray areas" but only for "transgressing bright lines." Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Of course, officers are not

afforded protection when they are "plainly incompetent or . . . know-

ingly violate the law." Malley, 475 U.S. at 341. But, in gray areas,

where the law is unsettled or murky, qualified immunity affords pro-

tection to an officer who takes an action that is not clearly forbidden

-- even if the action is later deemed wrongful. Simply put, qualified

immunity exists to protect those officers who reasonably believe that

their actions do not violate federal law.

Officer Broderick was not operating in a murky area of the law.

Firmly-rooted precedent would have made it apparent to a reasonable

officer that Detective Broderick's conduct was unlawful under the

Fourth Amendment. It is safe to say that in August 1998, it was clear

that law enforcement officials were not free to barge into an area

within a place of business where the public was not invited and over

the objection of the proprietors conduct a general search for evidence

of a crime without the slightest hint of probable cause. The expecta-

tion that one generally remains free from warrantless searches in the

privacy of the home is at the heart of the Fourth Amendment, see

Silverman v. United States, 365 U.S. 505, 511-12 (1961), but the

Supreme Court has long recognized that searches of office buildings

and commercial premises in the absence of a search warrant grounded

upon probable cause are unreasonable as well, see Marshall v. Bar-

low's, Inc., 436 U.S. 307, 311 (1978); G.M. Leasing Corp. v. United

18

States, 429 U.S. 338, 353 (1977); See v. City of Seattle, 387 U.S. 541,

543 (1967). And, it is not a new concept that even in a public facility,

government officials cannot search for evidence of a crime, absent

probable cause, in areas that are closely guarded and private. See

Katz, 389 U.S. at 351 ("What a person knowingly exposes to the pub-

lic, even in his own home or office, is not a subject of Fourth Amend-

ment protection. But what he seeks to preserve as private, even in an

area accessible to the public, may be constitutionally protected." (cita-

tions omitted)). Thus, not surprisingly, the Supreme Court has deter-

mined that a search of desk drawers and locked file cabinets located

in a workplace is almost always unreasonable if it fails to conform to

the warrant requirement. See Mancusi v. DeForte , 392 U.S. 364

(1968); Go-Bart Importing Co. v. United States , 282 U.S. 344 (1931);

cf. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ("[T]here is no

basis for the notion that because a retail store invites the public to

enter, it consents to wholesale searches and seizures that do not con-

form to Fourth Amendment guarantees.").

The proposition that police officers should obey the Fourth

Amendment before searching private areas concealed by locked cabi-

nets and doors remains valid when the doors and cabinets are found

in a medical facility, and the Supreme Court has acknowledged as

much. In O'Connor v. Ortega, 480 U.S. 709 (1987) (plurality opin-

ion), the Court examined the appropriate limits of an administrative

search conducted by a public hospital during a fraud investigation of

one of its physician-employees. The search encompassed the physi-

cian's desk and file cabinets, which he did not share with anyone, and

yielded documents relating to the doctor's private affairs. A majority

of the Court reached the conclusion that, at the very least, the doctor

had a reasonable expectation of privacy in his desk and file cabinets

against invasion by his employer, see id. at 714-19; id. at 730 (Scalia,

J., concurring), and the plurality noted that the expectation of privacy

is even greater where the search is conducted by the police, see id. at

717 ("The operational realities of the workplace . . . may make some

employees' expectations of privacy unreasonable when an intrusion

is by a supervisor rather than a law enforcement official."). Although

the plurality determined that the probable cause standard was inappro-

priate for such intrusions by public employers who are investigating

work-related misconduct, see id. at 725-26, it drew a distinction

between searches conducted by public employers on work-related

19

matters and searches conducted by law enforcement officials for evi-

dence of a crime. It is clear that probable cause is required for inva-

sions of the latter variety -- a principle that a majority of the Court

accepted. See id. at 719-22; id. at 730 (Scalia, J., concurring)

("[O]ne's personal office is constitutionally protected against warrant-

less intrusions by the police, even though employer and co-workers

are not excluded."). Prior to O'Connor, in Pembaur v. City of Cincin-

nati, 475 U.S. 469 (1986), the Court observed that a state prosecutor

"directly caused the violation of petitioner's Fourth Amendment

rights," id. at 484, when he instructed officers who were standing in

the public reception area of a medical clinic to forcibly enter, without

a search warrant, the private portion of the clinic which was closed

off by a door. The officers did so even though clinic employees

locked the door when the officers entered the reception area and

asked the officers to leave. See id. at 472-73.

There is no dispute in the case before us that the room in the meth-

adone treatment center containing the patients' records was a private

room and not a place where the general public was welcome. Before

he even attempted to obtain the search warrant, Detective Broderick

was aware of an incident in which a clinic supervisor told police offi-

cers, who were called to the clinic to investigate a possible overdose,

that the clinic had not called them, that the police were not welcome,

and that the clinic would not provide any information. Accordingly,

Detective Broderick was well aware that the clinic considered the

type of information he sought to be confidential. Detective Broderick

confirmed this during his investigation of the larceny when he tele-

phoned the clinic about the possibility of acquiring patient informa-

tion. The clinic informed him that it would not relinquish any

information to the police without a court order. As a result, Detective

Broderick applied for and obtained the search warrant, suggesting to

us that he knew, as any reasonable officer in his shoes would have

known, that the clinic's record room and the records contained therein

were sufficiently private to necessitate probable cause to search.

Finally, when Detective Broderick executed the search warrant, one

of the clinic's employees initially locked herself inside the record

room to protect the confidentiality of the files and relented only after

she was threatened with arrest for obstruction of justice.

A search warrant based upon probable cause was clearly necessary

for law enforcement officers to enter the clinic's file room and to

20

examine the information contained in the clinic's patient records, ren-

dering Detective Broderick's search in the absence of probable cause

a violation of clearly established Fourth Amendment principles. To be

clearly established, the law must be "sufficiently clear that a reason-

able official would understand that what he is doing violates that

right." Anderson, 483 U.S. at 640. "This is not to say that an official

action is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say that in the

light of pre-existing law the unlawfulness must be apparent." Id. (cita-

tion omitted); see Buonocore v. Harris, 65 F.3d 347, 357 (4th Cir.

1995) (explaining that the requirement that the law prohibiting an

officer's conduct be clearly established "includes not only specifically

adjudicated rights but those manifestly included within more general

applications of the core constitutional principle invoked." (internal

quotation marks omitted)).

In August 1998, clearly established Fourth Amendment principles

prohibited officers from searching private areas within commercial or

business premises, or even private areas within public places, without

probable cause. We believe it would have been apparent to a reason-

able officer that these limitations encompassed a locked, patient-

records room within a methadone clinic that contained confidential

patient files, and that, if nothing else, Detective Broderick knew (or

should have known) that his actions violated the Fourth Amendment

rights of every person who had an expectation of privacy in the

records room or the records contained there. The fact that he may not

have known the identities of the persons wronged, or their precise

numbers, is not determinative, for it was obvious that the files were

not public, but were private, and that what he was doing violated the

rights of all persons having a privacy interest in them. See Anderson,

483 U.S. at 640. Thus, by searching without probable cause, Detec-

tive Broderick clearly violated the Fourth Amendment, subjecting

himself to suit by all persons vested with a legitimate expectation of

privacy under the Fourth Amendment.

Although "the very action in question . . . [may not have] previ-

ously been held unlawful," we are satisfied that"in light of pre-

existing law the unlawfulness . . . [was] apparent." Id. Consequently,

Detective Broderick cannot cloak his clearly unconstitutional conduct

with qualified immunity simply because a question may have existed

21

as to whether Doe, in particular, had a legitimate expectation of pri-

vacy in his methadone treatment records. Detective Broderick

engaged in actions which he knew or should have known were unac-

ceptable and violative of the Fourth Amendment, leaving no princi-

pled reason why he should be immune from suit. By conducting his

search without probable cause, Detective Broderick had already

"transgress[ed] bright lines," Maciariello, 973 F.2d at 298, marking

the limits of his qualified immunity protection. 6 We therefore affirm

the district court in its rejection of this defense.

IV.

Doe cross appeals the district court's dismissal of Fairfax County

from his action. The district court found no evidence that Detective

Broderick conducted his search pursuant to an official policy or a cus-

tom maintained by Fairfax County. See Monell v. Department of Soc.

Servs., 436 U.S. 658, 690-91 (1978). The district court likewise

rejected Doe's claim that Fairfax County failed to train Broderick

properly to adhere to the requirements of section 290dd-2 because,

even assuming Fairfax County had not properly trained Detective

Broderick, it found no evidence that the failure to do so was a result

_________________________________________________________________

6 We also do not read our decision in Tarantino v. Baker, 825 F.2d 772

(4th Cir. 1987), cited by the dissent, as requiring a contrary result. In

Tarantino, the detective, who had received an anonymous tip that mari-

juana plants were being grown inside a former general store, looked

through a crack in the wall and saw marijuana plants. Armed with this

information, the detective secured a valid search warrant and seized the

plants. During the criminal trial of the building's occupant, Tarantino,

the district court suppressed the evidence seized because the detective

"invaded Tarantino's `zone of expected privacy' when he looked through

the crack hoping to confirm the informant's tip." Id. at 773. The govern-

ment did not appeal. In the ensuing section 1983 action against the detec-

tive, we held that because the law regarding the expectation of privacy

by a commercial building's occupant was unsettled and unevenly applied

at the time of the search, the detective was entitled to qualified immunity

because his actions did not "contravene[ ] any clearly settled fourth

amendment principles." Id. at 776 (internal quotation marks omitted).

Unlike the situation in Tarantino, there is no question in this case that

Detective Broderick's actions did contravene clearly settled Fourth

Amendment principles.

22

of Fairfax County's deliberate indifference to Doe's rights. See City

of Canton v. Harris, 489 U.S. 378, 388-89 (1989).

Doe points to no written or formal policy that would have caused

his deprivation, see Monell, 436 U.S. at 690, nor does Doe argue that

the search was the result of "affirmative decisions of individual poli-

cymaking officials," Carter v. Morris, 164 F.3d 215, 218 (4th Cir.

1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84

(1986)). Moreover, we see nothing in the record that suggests Detec-

tive Broderick's search was the result of a "persistent and wide-

spread" practice such that Fairfax County could be held liable.

Monell, 436 U.S. at 691. The search of the methadone clinic was an

odd, isolated incident that was the first of its kind at the Fairfax

County Police Department. Isolated, unprecedented incidents such as

this one are insufficient to create municipal liability. See Carter, 164

F.3d at 220 (A "meager history of isolated incidents" does not estab-

lish a municipal custom).

Doe also contends that Fairfax County is liable because it failed to

adequately train Detective Broderick and other Fairfax County law

enforcement officers. In making this argument, Doe highlights the

fact that Fairfax County concedes it did not make its law enforcement

officers aware of 42 U.S.C.A. § 290dd-2 prior to August 1999. Doe

points to nothing else that would undermine the adequacy of Fairfax

County's training of law enforcement officers. A municipality's fail-

ure to train its officers can result in liability under section 1983 only

when such failure reflects "deliberate indifference" to the rights of its

citizens. See Harris, 489 U.S. at 388. That is, "[o]nly where a failure

to train reflects a `deliberate' or `conscious' choice by a municipality

-- a `policy' as defined by our prior cases-- can a city be liable for

such failure under § 1983." Id. at 389. There is simply nothing in the

record to suggest that Fairfax County's lack of instruction of its offi-

cers on this federal statute was the result of an affirmative, conscious

decision. Moreover, because this was a single incident, the need for

training with regard to the confidentiality of drug treatment records

was not so "plainly obvious" to the policymakers that the failure to

instruct on section 290dd-2 can be said to be deliberately indifferent.

See id. at 390 n.10. In sum, Doe advances his failure-to-train theory

of municipal liability merely by reference to this single incident

involving Detective Broderick; however, the Supreme Court has

23

rejected the notion that "a § 1983 plaintiff [can] . . . establish munici-

pal liability without submitting proof of a single action taken by a

municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S.

808, 821 (1985). Accordingly, we affirm the judgment of the district

court dismissing Fairfax County from the action.

V.

For the foregoing reasons, we affirm the district court's denial of

qualified immunity to Detective Broderick on Doe's Fourth Amend-

ment claim, and we remand for further proceedings on that issue. We

affirm the dismissal of Fairfax County from the action. We reverse

the district court's denial of qualified immunity to Detective Broder-

ick on Doe's claim that Detective Broderick violated 42 U.S.C.A.

§ 290dd-2.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

Although I agree with much of the majority opinion, I have a fun-

damental disagreement with the analysis employed in Part III.

Because I am convinced that Doe's legitimate expectation of privacy

in his drug treatment center records needed to be clearly established

at the time of Broderick's search in order for the defense of qualified

immunity to be unavailable, and because I am further convinced that

such an expectation was not clearly established, I respectfully dissent

from the majority's conclusion that Broderick is not entitled to quali-

fied immunity.

I.

As the majority recognizes in Part II.B of its opinion, a determina-

tion that police conduct violates one's Fourth Amendment right to be

free from unreasonable searches requires an affirmative answer to two

subordinate questions. First, did the individual"seeking refuge under

the Fourth Amendment `ha[ve] a legitimate expectation of privacy in

the invaded place'"? Ante at 13 (quoting Rakas v. Illinois, 439 U.S.

128, 143 (1978)). Second, did the search fail to comply with the war-

24

rant requirement or an exception thereto? See ante at 15. Although the

first question was once considered a question only of "standing," the

Supreme Court has long held that whether one has a legitimate expec-

tation of privacy in the invaded area is a question"more properly sub-

sumed under substantive Fourth Amendment doctrine." Rakas, 439

U.S. at 139; see also Rawlings v. Kentucky, 448 U.S. 98, 104-06

(1980) (confirming that after Rakas there is no longer any separate

standing inquiry). In Illinois v. Andreas, 463 U.S. 765 (1983), the

Supreme Court clearly articulated the concept:

The Fourth Amendment protects legitimate expectations of

privacy rather than simply places. If the inspection by police

does not intrude upon a legitimate expectation of privacy,

there is no "search" subject to the Warrant clause. The

threshold question, then, is whether an individual has a

legitimate expectation of privacy in the [invaded place].

Id. at 771 (internal citations omitted).

In addition, as alluded to in this quoted passage from Andreas, the

Fourth Amendment serves to protect individual rights, and, therefore,

a Fourth Amendment violation is inextricably tied to the specific indi-

vidual who is alleging the violation. See Minnesota v. Carter, 525

U.S. 83, 88 (1998) (noting that the Fourth Amendment's language

"indicates that [it] is a personal right that must be invoked by an indi-

vidual"). In other words, there is no such thing as a Fourth Amend-

ment violation "in the air"; only when the individual "seeking refuge

under the Fourth Amendment `has a legitimate expectation of privacy

in the invaded place' or the item seized," ante at 13 (quoting Rakas,

439 U.S. at 143), can a colorable Fourth Amendment claim, or, as

here, a § 1983 claim premised upon a Fourth Amendment violation,

exist. Without such an individual interest, no protectible Fourth

Amendment interest is implicated.

These principles illuminating the contours of the Fourth Amend-

ment are well settled, and, as I have noted, the majority correctly

adheres to them in considering whether Doe has alleged a violation

of his Fourth Amendment rights. See ante Part II.B.1. As the Supreme

Court has instructed, courts must first determine whether a § 1983

plaintiff has alleged a violation of his constitutional or statutory rights

25

at all, before considering whether those rights were clearly established

so as to deprive an offending officer of a qualified immunity defense.

See Wilson v. Layne, 526 U.S. 603, 609 (1999). Like the majority, I

agree that, as a matter of first impression, Doe has properly asserted

a violation of his Fourth Amendment rights.1 As I discuss below,

however, I do not believe that Doe's Fourth Amendment right to be

free from an unreasonable search of his drug treatment center records

was clearly established at the time of Detective Broderick's search.

II.

After relying upon the well-settled principle that a search violates

the Fourth Amendment only when (1) the individual asserting the

claim has a legitimate expectation of privacy in the invaded area and

(2) the search runs afoul of the requirements of the Warrant Clause,

the majority proceeds to abandon this two-part inquiry in analyzing

whether Doe's rights were clearly established in Part III of its opin-

ion. Instead of applying this same framework, the majority works

under the premise that whether Doe's legitimate expectation of pri-

vacy in his records was clearly established is inconsequential.

Because it was clear in August 1998 that police officers could not

_________________________________________________________________

1 Before today, no court has ever held that a drug treatment center

patient has a legitimate expectation of privacy in his records sufficient

to garner Fourth Amendment protection in the records. In fact, I believe

it is a relatively close question as to whether society would consider

Doe's expectation of privacy to be objectively reasonable. Cf. ante at 14

("The more interesting issue is whether a patient's expectation of privacy

-- Doe's expectation of privacy -- in his treatment records and files

maintained by a substance abuse treatment center is one that society is

willing to recognize as objectively reasonable and thus comes within

ambit of the Fourth Amendment's protections."). In the end, I agree with

the majority's conclusion that 42 U.S.C.A. § 290dd-2 (West Supp. 2000)

itself demonstrates society's willingness to recognize as reasonable

Doe's expectation of privacy in his records kept at the methadone clinic.

See ante at 14-15. I express no opinion on whether other patients -- i.e.,

patients outside of the precise context involving drug treatment centers

covered by § 290dd-2 that we are faced with today -- have similarly

legitimate expectations of privacy in their medical records. Nor do I

understand the majority opinion as suggesting any intent on its part to

weigh in on such issues not directly controlled by this case.

26

search "private areas" without a warrant supported by probable cause,

the majority concludes that Detective Broderick cannot be afforded

qualified immunity. See ante at 21-22. The majority's approach thus

frames the issue in such a way that it completely ignores whether the

answer to "the threshold question" was clear. See Illinois v. Andreas,

463 U.S. 765, 771 (1983). After skipping past this essential step in

Fourth Amendment analysis, the majority goes on to assume that the

area was private and then addresses the very general question of

whether Broderick needed probable cause to search an area in which

someone might have a legitimate expectation of privacy. The majori-

ty's error in declining to consider whether Doe's legitimate expecta-

tion of privacy was clearly established is underscored by this level of

extreme generality at which the majority is forced to couch its

inquiry.

As the Supreme Court's and this Circuit's precedents make clear,

"[i]n analyzing the applicability of a qualified immunity defense, we

must first identify the specific right that the plaintiff asserts was

infringed by the challenged conduct at a high level of particularity."

Edwards v. City of Goldsboro, 178 F.3d 231, 250-51 (4th Cir. 1999)

(citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)). The Elev-

enth Circuit has further explained this particularity principle in a man-

ner that is especially prescient in light of the majority's approach in

this case:

[C]ourts must not permit plaintiffs to discharge their burden

by referring to general rules and to the violation of abstract

"rights". . . . The line is not to be found in abstractions --

to act reasonably, to act with probable cause , and so forth

-- but in studying how these abstractions have been applied

in concrete circumstances.

Lassiter v. Alabama A&M Univ., Bd. of Trustees , 28 F.3d 1146, 1150

(11th Cir. 1994) (en banc) (internal quotation marks omitted) (empha-

sis added). In this case, however, the majority does nothing more in

Part III of its opinion than state the unremarkable proposition that it

was clearly established that police officers must act with probable

cause in searching private areas.2

_________________________________________________________________

2 For Fourth Amendment purposes, a"private area" means an area in

which a particular person has a legitimate expectation of privacy. The

27

In contrast to the majority's approach, I maintain that the particular

right that must be clearly established to defeat Broderick's qualified

immunity defense is the same as the particular right at issue in consid-

ering whether Doe has alleged a Fourth Amendment violation at all.

That is, in answering the two distinct questions that Wilson v. Layne,

526 U.S. 603, 609 (1999), instructs us to determine, the actual right

at issue remains the same and the majority's characterization of the

right in Part III should have traced the explanation of the right it pro-

vided in Part II.B.3 The question in Part III of the majority opinion

should have been whether it was clearly established that a patient has

the right to be free from a search of his records kept at a drug treat-

ment center covered by § 290dd-2, in the absence of probable cause.

Nevertheless, the majority insists that "Detective Broderick cannot

_________________________________________________________________

majority discusses a number of cases demonstrating that police searches

of office spaces, commercial premises, and even medical clinics have

been held to violate the Fourth Amendment. See ante at 18-19. These

cases are inapposite to the issue here. "[T]he Fourth Amendment protects

people, not places." Katz v. United States , 389 U.S. 347, 351 (1967).

While slightly interesting, the fact that the search at issue here occurred

in the same kind of place as other unconstitutional searches lacks any

legal significance. In O'Connor v. Ortega, 480 U.S. 709 (1987), for

example, the Supreme Court noted that employees"may" have a legiti-

mate expectation of privacy in their workplace sufficient to trigger

Fourth Amendment protections, but cautioned that whether an employee

has such a protectible interest is not a foregone conclusion in light of

varying workplace environments. See id. at 716-18. Unless someone in

particular has a legitimate expectation of privacy in the invaded area, that

area is not a "private area" and no Fourth Amendment violation can

occur. Therefore, as I discuss below, because Doe's legitimate expecta-

tion of privacy in his drug treatment center records was not clearly estab-

lished at the time of Detective Broderick's conduct, it was not clear that

Detective Broderick was intruding upon a "private area" for Fourth

Amendment purposes.

3 Indeed, the Supreme Court stated the proper analysis quite plainly in

Wilson v. Layne, 526 U.S. 603 (1999): "A court evaluating a claim of

qualified immunity `must first determine whether the plaintiff has

alleged the deprivation of an actual constitutional right at all, and if so,

proceed to determine whether that right was clearly established at the

time of the alleged violation.'" Id. at 609 (quoting Conn v. Gabbert, 526

U.S. 286, 290 (1999) (emphasis added).

28

cloak his clearly unconstitutional conduct with qualified immunity

simply because a question may have existed as to whether Doe, in

particular, had a legitimate expectation of privacy in his methadone

treatment records."4 Ante at 21-22. Because Broderick's conduct

would not have been unconstitutional had Doe failed to show that he

had a legitimate expectation of privacy in his records, I simply cannot

understand how Broderick's conduct could have been"clearly uncon-

stitutional" without the supporting conclusion that Doe's legitimate

expectation of privacy was itself "clear."

Notably, the majority cites no case in support of its novel approach,

in which it disregards a crucial substantive aspect of Doe's Fourth

Amendment rights5 while determining that those rights were clearly

established. In contrast, at least one prior case from this Court directly

supports (if not mandates) application of the fairly modest precept

that if an individual's expectation of privacy in an area searched is not

clearly established, then an officer is entitled to qualified immunity

for his conduct. In Tarantino v. Baker, 825 F.2d 772 (4th Cir. 1987),

we considered the question of whether a police officer was entitled to

qualified immunity in a case in which the officer, without a search

warrant, peered through cracks in the wall of a building to confirm an

anonymous tip that the building's occupant, Tarantino, was growing

marijuana plants. See id. at 773. In that case, a district court originally

suppressed evidence stemming from this "search" and the Govern-

ment did not challenge the suppression on appeal, opting instead to

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4 It is worth noting that there is no evidence in the record that anyone

other than Doe had a legitimate expectation of privacy in the invaded

area. The majority implies that it is clear that someone besides Doe, per-

haps a clinic employee, had a legitimate expectation of privacy in the

records, but there is simply no way for us to determine that based upon

the record. Again, the Supreme Court's opinion in O'Connor makes

plain that one's status as an employee does not automatically provide

him with a Fourth Amendment interest in all areas of the workplace. See

O'Connor, 480 at 716-718.

5 Again, as the Supreme Court made clear in Rakas v. Illinois, 439 U.S.

128 (1978), the question of whether the individual seeking protection

under the FourthAmendment had a legitimate expectation of privacy in

the area searched is one of "substantive Fourth Amendment doctrine." Id.

at 139.

29

drop its case. See id. After the charges were dropped against Taran-

tino, however, he brought a § 1983 claim against the police officer,

alleging that the officer had violated his Fourth Amendment rights.

See id. at 773-74. We recognized that "[u]nless Tarantino had a `rea-

sonable expectation of privacy' in the interior of his marijuana storage

facility which was clear as a matter of law, [the searching officer]

cannot be liable for damages for looking inside without a warrant."

Id. at 775. We concluded that because Tarantino failed to demonstrate

that he had a clearly established legitimate expectation of privacy in

the invaded area, the officer did not "violate[ ] a `clearly established'

constitutional standard" and was thus entitled to qualified immunity.

See id. at 779. I see no principled manner in which to distinguish

Tarantino from this case.6 In Tarantino, despite the officer's failure

to obtain a warrant before looking inside the building, we rested our

analysis on the fact that Tarantino's legitimate expectation of privacy

in the area was not clearly established. Similarly, although Detective

Broderick failed to obtain a warrant supported by probable cause in

this case, I believe that we must consider whether Doe's legitimate

expectation of privacy in the area searched was clearly established

before we can determine that Broderick violated a clearly established

constitutional standard.7

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6 I do not find the majority's attempt to distinguish Tarantino v. Baker,

825 F.2d 772 (4th Cir. 1987), particularly persuasive. See ante at 22 n.6.

Just as the law was unsettled concerning the expectation of privacy of a

commercial building's occupant at the time of the police officer's con-

duct at issue in Tarantino, so, too, was the law unsettled concerning the

expectation of privacy that a drug treatment center patient possesses in

his records at the time of Broderick's conduct. See infra Part III.

7 Other courts have applied similar frameworks in analyzing qualified

immunity defenses and have concluded that the defense is available if it

was not clear that the conduct constituted a "search" within the meaning

of the Fourth Amendment in that the individual's legitimate expectation

of privacy in the area searched was not clear. See B.C. v. Plumas Unified

Sch. Dist., 192 F.3d 1260, 1266, 1268 (9th Cir. 1999) (holding that

although the Government conduct constituted a search because it "in-

fringed [the plaintiff's] reasonable expectation of privacy," the defen-

dants were entitled to qualified immunity because at the time of the

conduct "it was not clearly established that the[conduct] constituted a

search"); D'Aguanno v. Gallagher, 50 F.3d 877, 880 (11th Cir. 1995)

30

III.

In my view, Doe did not have a clearly established legitimate

expectation of privacy in his drug treatment center records. As the

district court acknowledged, it was at the very least "arguably not

clearly established under existing law at the time of Broderick's

search" that his conduct violated Doe's Fourth Amendment rights.8

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(holding that defendants were entitled to qualified immunity for alleg-

edly violating plaintiffs' Fourth Amendment rights when it was not clear

that plaintiffs had an expectation of privacy that society was prepared to

recognize as reasonable); Shields v. Burge, 874 F.2d 1201, 1205 (7th Cir.

1989) (granting qualified immunity in part because at the time of the

conduct "it was not clear whether [an employee's reasonable expectation

of privacy against police intrusions in the workplace] carried over to

work-related intrusions by superiors"); see also Ortega v. O'Connor,

146F.3d 1149, 1157-58 (9th Cir. 1998) (considering"[f]irst" whether the

§ 1983 plaintiffs' "reasonable expectation of privacy in their private

offices, desks, and file cabinets" was clearly established before proceed-

ing to the second question of whether it was clearly established that the

search was unreasonable).

8 The majority notes this aspect of the district court's opinion in which

the district court expressly doubts that Broderick's conduct violated any

clearly established Fourth Amendment right possessed by Doe, but

quickly dismisses any significance in this language on the basis that the

district court ultimately concluded that qualified immunity was not avail-

able to Broderick, and, therefore, the district court must have actually

deemed Doe's Fourth Amendment rights clearly established. See ante at

13 (noting that despite the district court's indication that the right was

"arguably" not clearly established, "[n]evertheless, the district court

apparently concluded that this right was clearly established because the

court ultimately denied Detective Broderick's motion for summary judg-

ment"); ante at 6 ("The district court also apparently concluded, but did

not expressly state, that Detective Broderick's conduct violated clearly

established Fourth Amendment law because the court ultimately denied

Detective Broderick's motion for summary judgment based on qualified

immunity."). Contrary to the majority, my reading of the district court's

opinion denying Broderick's motion for summary judgment indicates

that the district court based its denial upon its belief that Broderick had

violated Doe's clearly established statutory rights, not that Broderick had

violated Doe's clearly established Fourth Amendment rights. The district

31

(J.A. at 539.) No court has ever held that a patient in Doe's position

has a legitimate expectation of privacy in his drug treatment center

records based upon § 290dd-2. Nor am I aware of any decision from

the United States Supreme Court, this Court, a federal district court

in Virginia, or the Supreme Court of Virginia that has held that

patients in a more general sense have a legitimate expectation of pri-

vacy in their medical records. Cf. Edwards v. City of Goldsboro, 178

F.3d 231, 251 (4th Cir. 1999) ("In determining whether a right was

clearly established at the time of the claimed violation, courts in this

circuit [ordinarily] need not look beyond the decisions of the Supreme

Court, this court of appeals, and the highest court of the state in which

the case arose." (alteration in original) (internal quotation marks omit-

ted)). Moreover, had Detective Broderick perused the case law from

other states and federal courts of appeals he would have found some

decisions strongly suggesting that patients in Doe's position would

not have a protectible Fourth Amendment interest in their medical

files. See, e.g., Young v. Murphy, 90 F.3d 1225, 1236 (7th Cir. 1996)

(concluding that a nursing home patient failed to assert a violation of

his clearly established Fourth Amendment rights based upon state

examination of his records); United States v. Burzynski Cancer

Research Inst., 819 F.2d 1301, 1311 (5th Cir. 1987) (determining that

Texas's physician-patient privilege failed to provide patients with a

legitimate expectation of privacy in the medical records maintained

by their doctor sufficient to challenge the search and seizure of the

records); State v. Guido, 698 A.2d 729, 733-34 (R.I. 1997) (holding

that a patient had no legitimate expectation of privacy in his medical

records kept at hospital). In light of the utter absence of case law sug-

gesting that a patient at a drug treatment center covered by § 290dd-

_________________________________________________________________

court held that Broderick violated Doe's statutory rights under § 290dd-

2 and that because this law was "on the books," it was clearly estab-

lished, thereby depriving Broderick of a qualified immunity defense.

(J.A. at 539-40.) As the majority holds in Part II.A of its opinion, how-

ever, the district court erred in its conclusion that § 290dd-2 creates a

statutory right cognizable under § 1983. My point is simply that, contrary

to the majority's suggestion, the district court actually appears to have

agreed that Broderick did not violate Doe's clearly established Fourth

Amendment rights and that this agreement can most easily be reconciled

with its ultimate holding by noting the statutory-right basis for its deci-

sion.

32

2 has a legitimate expectation of privacy in his records, Doe's expec-

tation was in no way clearly established.

IV.

When we review claims of qualified immunity, the Supreme Court

has instructed us to first determine whether the plaintiff has alleged

a deprivation of a constitutional right at all and then to determine

whether that right was clearly established at the time of the conduct

in question. See Wilson v. Layne, 526 U.S. 603, 609 (1999). There-

fore, just as it is essential for Doe to demonstrate that he had a legiti-

mate expectation of privacy in his drug treatment center records

before we can conclude that he alleged a violation of his Fourth

Amendment rights at all, so, too, is it necessary to show that such an

expectation was clearly established at the time of Broderick's conduct

before we can conclude that Broderick is not entitled to the defense

of qualified immunity. Because Doe did not have a clearly established

legitimate expectation of privacy in his drug treatment center records,

I would hold that Detective Broderick is entitled to a defense of quali-

fied immunity in this case. Accordingly, I respectfully dissent from

Part III of the majority opinion denying Detective Broderick's quali-

fied immunity defense.

33