Amaechi v. West

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA AMAECHI, 

Plaintiff-Appellee,

v.

MATTHEW WEST,

Defendant-Appellant,  No. 00-1129

and

BERNARD R. PFLUGER; TOWN OF

DUMFRIES,

Defendants.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CA-99-783-A)

Argued: November 2, 2000

Decided: January 9, 2001

Before WILLIAMS and MICHAEL, Circuit Judges, and

Joseph F. ANDERSON, Jr., Chief United States District Judge

for the District of South Carolina, sitting by designation.

Affirmed and remanded by published opinion. Judge Williams wrote

the opinion, in which Judge Michael and Chief Judge Anderson

joined.

COUNSEL

ARGUED: Robert S. Corish, BRANDT, JENNINGS, ROBERTS,

DAVIS & SNEE, P.L.L.C., Falls Church, Virginia, for Appellant.

2 AMAECHI v. WEST

Victor Michael Glasberg, VICTOR M. GLASBERG & ASSO-

CIATES, Alexandria, Virginia, for Appellee. ON BRIEF: John J.

Brandt, BRANDT, JENNINGS, ROBERTS, DAVIS & SNEE,

P.L.L.C., Falls Church, Virginia, for Appellant. Kelly M. Baldrate,

VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia,

for Appellee.

OPINION

WILLIAMS, Circuit Judge:

Appellee Lisa Amaechi filed suit in the United States District Court

for the Eastern District of Virginia, Alexandria Division, against

Appellant Officer Matthew West in his individual capacity, pursuant

to 42 U.S.C.A. § 1983 (West Supp. 2000).1 Amaechi sought damages

arising out of what Amaechi claims was a sexually intrusive search

executed upon her by West incident to her arrest for violation of a

town noise ordinance. The district court denied West’s motion for

summary judgment based upon a defense of qualified immunity, rea-

soning that West’s search, as described by Amaechi, violated

Amaechi’s clearly established constitutional rights under the Fourth

Amendment. West ultimately disputes Amaechi’s description of

West’s search, presenting what the district court referred to as a "fac-

tual conundrum." (J.A. at 306). Because this is an interlocutory appeal

from the denial of qualified immunity on summary judgment, how-

ever, we must accept Amaechi’s version of the facts surrounding the

search as true for purposes of this appeal.2 See Pritchett v. Alford, 973

F.2d 307, 313 (4th Cir. 1992). Based upon Amaechi’s characteriza-

1

Amaechi also joined the Town of Dumfries, Virginia and Sergeant

Bernard Pfluger of the Dumfries Police Department in her § 1983 suit,

but the district court dismissed both parties on January 13, 2000.

2

Indeed, if West challenged Amaechi’s version of the facts for pur-

poses of his appeal, we would be without jurisdiction to resolve his qual-

ified immunity defense at this interlocutory stage. See Johnson v. Jones,

515 U.S. 304, 311, 319-20 (1995). In such a case, where genuine issues

of material fact exist, the officer is entitled to appeal the district court’s

denial of his qualified immunity defense at the conclusion of trial, once

the factual issues have been resolved. See id.

AMAECHI v. WEST 3

tion of the search, we affirm the district court’s denial of qualified

immunity, and we remand for further proceedings.

I.

Amaechi and her husband, a guard at the Lorton correctional facil-

ity, lived in a townhouse in Dumfries, Virginia. Amaechi’s young

children sometimes played music in the townhouse too loudly, caus-

ing neighbors to complain.3 On August 10, 1997, Officer Stephen

Hargrave, of the Dumfries Police Department, responded to a com-

plaint from one of the Amaechis’ neighbors about the loud music

coming from the Amaechis’ townhouse. Hargrave instructed Amaechi

to turn down the music, and she did so. At that time, Hargrave told

Amaechi that he would not arrest her unless he received another com-

plaint about the noise level. Believing that Hargrave was unnecessar-

ily impolite in his handling of the matter, Amaechi called the Prince

William County Police Department and complained about Hargrave’s

conduct.4 Hargrave discovered that Amaechi had registered a com-

plaint against him later that afternoon. On August 12, 1997, without

any further complaints about the noise level, Hargrave secured an

arrest warrant charging Amaechi for the two-day old violation of the

Town of Dumfries’s misdemeanor noise ordinance.5

After 9:00 pm that night, Officer Pfluger took his trainee, West,

and other officers to the Amaechis’ townhouse to execute the arrest

warrant.6 When Pfluger and West knocked on the door, a nude

Amaechi was in her bathroom preparing for bed. She covered herself

with a house dress and followed her husband downstairs.7

3

In August 1997, Amaechi’s five children ranged in age from four to

eleven years.

4

Amaechi did not call the Dumfries Police Department because she

believed it would "likely inappropriately protect its own." (Appellee’s

Br. at 5).

5

Amaechi was never convicted of this offense. She resolved the dis-

pute with her neighbor through mediation.

6

This was West’s first arrest of a woman. He resigned from the police

force approximately six months later.

7

The housedress was made of a light weight fabric, had spaghetti

straps, and had buttonholes all the way down the front. It was missing

all of its buttons from immediately below the chest, however, requiring

Amaechi to gather the dress with her hand to keep it closed.

4 AMAECHI v. WEST

When Amaechi answered the door with her husband, Pfluger told

her she was under arrest. Amaechi fully cooperated during the arrest,

but when told that she was to be handcuffed, Amaechi pointed out to

the officers that she was completely naked under the dress and

requested permission to get dressed because she would no longer be

able to hold her dress closed once handcuffed. This request was

denied, and Amaechi’s hands were secured behind her back, causing

her dress to fall open below her chest.

Pfluger then turned to West, who was at the door with Pfluger, and

told him to complete Amaechi’s processing. West escorted Amaechi

to the police car in her semi-clad state, walking past several officers

on the way to the car. Amaechi proceeded to enter the back door of

the car, which West had opened. West stopped her and told her that

he would have to search her before she entered the car. Amaechi pro-

tested that she was not wearing any underwear, and West said, "I still

have to search you." (J.A. at 33). West then stood in front of

Amaechi, squeezed her hips, and inside her opened dress, "swiped"

one ungloved hand, palm up, across her bare vagina, at which time

the tip of his finger slightly penetrated Amaechi’s genitals. Amaechi

jumped back, still in handcuffs, and exclaimed, "I told you I don’t

have on any underwear." (J.A. at 40). West did not respond and pro-

ceeded to put his hand "up into [her] butt cheeks," kneading them.

(J.A. at 41). West then allowed Amaechi to enter the car. This search

took place directly in front of the Amaechis’ townhouse, where the

other police officers, Amaechi’s husband, her five children, and all of

her neighbors had the opportunity to observe.

On June 2, 1999, Amaechi filed a seven count complaint in federal

district court, claiming money damages against West in his individual

capacity, the Town of Dumfries, and Pfluger under 42 U.S.C.A.

§ 1983 (West Supp. 2000) and under state law for West’s alleged sex-

ually invasive search. Upon the close of discovery, all defendants

moved for summary judgment. Amaechi voluntarily withdrew the

count alleging the unconstitutionality of the Town of Dumfries’ pol-

icy permitting her arrest for violation of the noise ordinance and the

count alleging West’s intentional infliction of emotional distress. The

district court granted summary judgment on the three counts pertain-

ing to Pfluger and the Town of Dumfries.8 The district court, how-

8

The district court held that Pfluger was not responsible for training

West and that the town had properly discharged its duty to train West by

AMAECHI v. WEST 5

ever, denied West’s motion for summary judgment as to the two

counts against him and denied West’s defense of qualified immunity.9

West filed an interlocutory appeal with this Court.

II.

The only issue we consider is whether the district court correctly

denied West’s summary judgment motion upon determining that West

was not entitled to qualified immunity. We review the district court’s

ruling de novo. Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994).

"Qualified immunity is an accommodation by the courts to the con-

flicting concerns of, on one hand, government officials seeking free-

dom from personal monetary liability and harassing litigation and, on

the other hand, injured persons seeking redress for the abuse of offi-

cial power." Id. at 162 (internal quotation marks omitted). To that

end, qualified immunity protects government officials performing dis-

cretionary 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.

Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether a gov-

ernment official is entitled to qualified immunity, the steps are

sequential; we "‘must first determine whether the plaintiff has alleged

the deprivation of an actual constitutional right at all,’" before

"‘proceed[ing] to determine whether that right was clearly established

at the time of the alleged violation.’" Wilson v. Layne, 526 U.S. 603,

609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286 (1999)). Accord-

ingly, we address Amaechi’s claim by focusing first on whether

Amaechi’s complaint has alleged a deprivation of her constitutional

right to be free from an unreasonable search, and we then turn to

whether that right was clearly established at the time of her arrest.

sending him to a state-approved law enforcement academy. The district

court also dismissed the count against Pfluger charging wrongful arrest.

Amaechi has not cross-appealed these rulings.

9

The remaining charges against West allege an unconstitutional search

and assault and battery.

6 AMAECHI v. WEST

A.

In relevant part, the Fourth Amendment protects "[t]he right of the

people to be secure in their persons . . . against unreasonable searches

and seizures." U.S. Const. amend. IV. Therefore, to be constitutional,

a search must not be unreasonable. Vernonia Sch. Dist. v. Acton, 515

U.S. 646, 653 (1995).

Amaechi contends that West’s search, including the touching and

penetration of her genitalia, was unreasonable in light of the circum-

stances surrounding the arrest. West argues, on the other hand, that

Supreme Court precedent allows an officer, conducting a search inci-

dent to arrest, to effectuate a "full search of the person." (Appellant’s

Br. at 16) (emphasis in original) (citing United States v. Robinson,

414 U.S. 218, 236 (1973)). West argues that this right to conduct a

full search of the person under Robinson includes the right to briefly

"swipe" the arrestee’s outer genitalia and slightly penetrate the genita-

lia. (Appellant’s Br. at 17-18).

We believe that West interprets Robinson too broadly.10 Robinson

did not, nor could it, rewrite the Fourth Amendment to exclude the

explicit requirement that no search be unreasonable. Nor did

Robinson hold that all searches incident to arrest, no matter how inva-

sive, are inherently reasonable. To the contrary, since Robinson, the

Supreme Court has continued to emphasize that Fourth Amendment

jurisprudence prohibits unreasonable searches incident to arrest. See,

e.g., Illinois v. Lafayette, 462 U.S. 640, 645 (1983) ("[T]he interests

supporting a search incident to arrest would hardly justify disrobing

an arrestee on the street . . . ."). Therefore, to determine whether

West’s search of Amaechi is constitutional, it is not enough to con-

clude that it was a search incident to a valid arrest. Rather, we must

determine whether the search was unreasonable.

10

To demonstrate the breadth of the interpretation West gives to Robin-

son, counsel for West argued at the motions hearing before the district

court that Robinson might permit an officer to examine a person’s private

areas and perform a cavity search in public, in a "measured way," regard-

less of the amount of time such a search required. (J.A. at 253-54).

AMAECHI v. WEST 7

In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court estab-

lished an analytical framework for determining the reasonableness of

a sexually intrusive search.11 Id. at 559. In Bell, the Supreme Court

held that a reasonableness inquiry requires a court to balance the need

for the particular search against the invasion of the personal rights

that the search entailed. See id. This balancing requires a court to con-

duct a contextual analysis to determine reasonableness by analyzing

"the scope of the particular intrusion, the manner in which it is con-

ducted, the justification for initiating it, and the place in which it is

conducted." Id.

West’s search was highly intrusive without any apparent justifica-

tion. Amaechi was arrested for a two-day old misdemeanor noise vio-

lation, she submitted to arrest peacefully, she advised the officers that

she had on no underclothes, and she requested the officers to allow

her to get dressed before being placed in handcuffs. Instead, the offi-

cers secured Amaechi’s hands behind her back and made her walk to

the car and stand in the street with her dress open and lower body

exposed. West proceeded to search by touching and penetrating

Amaechi’s genitalia and kneading her buttocks with his ungloved

hand. This invasive search was not conducted in a private holding cell

but rather was conducted on the street in front of Amaechi’s home,

subject to viewing by Amaechi’s family, the public, and the other

officers. Cf. Polk v. Montgomery Co., Md., 782 F.2d 1196, 1201-02

(4th Cir. 1986) ("[Whether the strip search was conducted in private]

is especially relevant in determining whether a strip search is reason-

able under the circumstances."). West does not allege that he con-

11

West argues that Bell v. Wolfish, 441 U.S. 520 (1979), does not apply

because West’s search did not qualify as a "strip search." In support of

his argument, West primarily relies upon the fact that West’s search was

very quick and, therefore, was not conducted with the requisite intent to

constitute a strip search. Without deciding whether a strip search requires

an element of intent, we note that whether West intended to strip search

Amaechi is a question of fact for the trial court and is not properly

resolved on summary judgment. Additionally, we note that Bell was not

limited simply to strip searches but rather developed a flexible test to

determine reasonableness that includes the concerns implicated by

West’s search of Amaechi. See id. at 558-59 (holding that courts must

review the scope of the "invasion of personal rights that the search

entails" to determine whether the search was reasonable).

8 AMAECHI v. WEST

ducted the search in such a manner because of a perceived threat to

his or the other officers’ safety. See generally Bell, 441 U.S. at 559

(requiring a court to weigh the intrusiveness of the search against the

justification for conducting the search). In fact, West could not rely

upon any type of security justification for this search, in that the dress

was thin and was almost completely open, making any weapons

immediately apparent.12 Nor did the possibility exist that Amaechi

would attempt to destroy or conceal evidence related to the noise vio-

lation. Because the invasiveness of Amaechi’s search far outweighed

any potential justification for the scope, manner, and place under

which it was conducted, see id., we agree with the district court that

the search was unreasonable and, therefore, unconstitutional.

B.

We turn next to the question of whether Amaechi’s right to be free

from this sexually invasive search was clearly established at the time

West performed the search. For purposes of analyzing whether this

Fourth Amendment violation was clearly established, we must go

beyond the general "unreasonableness" of the search and determine

"at a high level of particularity" the nature of the Fourth Amendment

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

Cir. 1999); see also Wilson v. Layne, 526 U.S. 603, 615 (1999) (stat-

ing that "the right allegedly violated must be defined at the acceptable

level of specificity"). In light of this requirement of a "high level of

particularity," we must analyze whether clearly established Fourth

Amendment jurisprudence protected Amaechi’s right to be free from

the public exposure, touching, and penetration of her genitalia and

kneading of her buttocks during a search incident to arrest for a mis-

demeanor noise violation, and where no security risk or threat of the

concealment or destruction of evidence was present.

12

To the extent that Amaechi’s hands were secured behind her back,

with her shoulders bare and dress open from the waist down, weapons

easily could have been viewed without necessitating any pat down. The

outline of possible weapons could have been seen through the thin mate-

rial of the dress, and parts of Amaechi’s body that were not already

exposed could have been searched by a pat down.

AMAECHI v. WEST 9

West conceded at oral argument that a strip search or a body cavity

search conducted in public violates an arrestee’s Fourth Amendment

right to a reasonable search, but he argues that relevant precedent

does not define his conduct as unlawful because no case holds that the

"swiping" and "slight" penetration of an arrestee’s genitalia pursuant

to a search incident to an arrest violates the Fourth Amendment. Con-

trary to West’s argument, the exact conduct at issue need not have

been held unlawful for the law governing an officer’s actions to be

clearly established. See Anderson v. Creighton, 483 U.S. 635, 640

(1987) ("This is not to say that an official action is protected by quali-

fied 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." (internal citation omitted)). Such

precise precedent is not what the particularity principle mandates.

Rather, the particularity principle mandates that courts refer to con-

crete applications of abstract concepts to determine whether the right

is clearly established. See Doe v. Broderick, 225 F.3d 440, 458-59

(4th Cir. 2000) (Williams, J., concurring in part and dissenting in

part) (citing Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150

(11th Cir. 1994) (en banc)). Thus, "‘clearly established’ in this con-

text includes not only already specifically adjudicated rights, but

those manifestly included within more general applications of the

core constitutional principle invoked." Pritchett v. Alford, 973 F.2d

307, 314 (4th Cir. 1992). The "contours of the right" must be drawn

in such a way as to provide notice to a reasonable person in the offi-

cial’s position that his conduct violated the identified right. See

Anderson, 483 U.S. at 640 ("The contours of the right must be suffi-

ciently clear that a reasonable official would understand that what he

is doing violates that right."); Swanson v. Powers, 937 F.2d 965, 969

(4th Cir. 1991) ("Rather, the ‘contours of the right’ must have been

so conclusively drawn as to leave no doubt that the challenged action

was unconstitutional."). Accordingly, we must determine whether the

contours of the right to be free from an unreasonable search have been

identified in such a way as to afford West adequate notice that his

search of Amaechi transgressed the Fourth Amendment. In doing so,

we look to "cases of controlling authority in [this] jurisdiction," as

well as the "consensus of cases of persuasive authority" from other

jurisdictions. Wilson, 526 U.S. at 617.

For purposes of analyzing whether West was on notice that his

search of Amaechi was unlawful, we agree with the district court that

10 AMAECHI v. WEST

precedent outlining limitations on the right to conduct strip searches

are relevant. A strip search under federal law includes the exposure

of a person’s naked body for the purpose of a visual or physical

examination. See United States v. Dorlouis, 107 F.3d 248, 256 (4th

Cir. 1997) (treating the act of pulling down a suspect’s trousers, while

leaving his boxer shorts intact, as a strip search and equating "an

unconstitutional strip search" with "an unnecessarily intrusive

search"); United States v. Vance, 62 F.3d 1152, 1156 (9th Cir. 1995)

(treating pulling down a suspect’s trousers and underwear in public

as a strip search); United States v. Cardenas, 9 F.3d 1139, 1145 (5th

Cir. 1993) (noting that directing a suspect to undress amounts to a

strip search). A body cavity search under federal law includes a visual

or physical examination into the body’s recesses. See Bell v. Wolfish,

441 U.S. 520, 558 (1979).

Amaechi’s claim involves characteristics of both a strip search and

a body cavity search. Although Amaechi was not per se "disrobed"

by West, the officers in effect caused her substantial disrobing by

refusing to allow her to change clothes after she informed them that

handcuffing her would cause her naked body to be completely

exposed from the waist down. Regardless of whether refusing to

allow Amaechi to change was unreasonable,13 the officers certainly

knew or should have known that handcuffing Amaechi would result

in publicly exposing a significant portion of her naked lower body.

Yet, they nevertheless proceeded to secure Amaechi’s hands behind

her back. Then, with Amaechi in this vulnerable position, West, with-

out any suspicion of danger to the officers or the possibility of the

destruction of evidence, proceeded to go beyond "visual examination"

and a pat down of the outside of Amaechi’s housedress and instead

physically touched and penetrated her genitalia and kneaded her but-

tocks with his bare hand. Public exposure of the genitalia accompa-

nied by physical touching is far more intrusive than directing an

arrestee to remove her clothing in private for the purpose of "visually

13

In United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000), we held that

an officer is justified in retrieving suitable attire for the arrestee for his

transport to the police station. See id. at 329; see also United States v.

Di Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977) (holding that officers

have a duty to find clothing for an arrestee or permit an arrestee to do

so).

AMAECHI v. WEST 11

inspecting" the arrestee’s genitalia. See United States v. Bond, 120 S.

Ct. 1462, 1464 (2000) ("Physically invasive inspection is simply more

intrusive than purely visual inspection."). Physical penetration of the

genitalia, no matter how slight, is an intrusion into the arrestee’s body

cavity and is the ultimate invasion of personal dignity. Accordingly,

we have no difficulty concluding, as did the district court, that West’s

search, as described by Amaechi, is analogous to a strip search.14

Firmly rooted Supreme Court and Fourth Circuit precedent involv-

ing strip searches and body cavity searches should have made it

apparent to West, as a reasonable officer, that his search of Amaechi

was unlawful under the Fourth Amendment. It is not a new rule of

law that searches involving the public exposure, touching, and pene-

tration of an arrestee’s genitalia are subject to limitations under the

Fourth Amendment. Relevant precedent compels the conclusion that

West’s search transgressed these clear limitations.

The Supreme Court has expressly disavowed the right of an officer

to disrobe an arrestee on the street pursuant to a search incident to an

arrest without the presence of justifying factors. See Illinois v. Lafay-

ette, 462 U.S. at 645 ("[T]he interests supporting a search incident to

arrest would hardly justify disrobing an arrestee on the street."). The

fact that, absent clear justification or exigent circumstances, an officer

is not allowed to strip an arrestee on a public street pursuant to a

search incident to an arrest necessarily means that an officer cannot

go even further than simply disrobing the arrestee by actually touch-

14

Additionally, we need not decide whether West’s search was a strip

search to apply precedent involving strip searches because those cases

are not limited to strip searches per se. Rather, Bell v. Wolfish, 441 U.S.

520 (1974), and subsequent cases involving strip searches express a more

general concern with the Fourth Amendment implications underlying the

violation of personal privacy inherent in sexually invasive searches. See

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (refusing to require

exact precedent as opposed to merely analogous precedent from which

the unlawfulness of the officer’s actions is made apparent). Because

West’s search involved the unwarranted public touching and penetration

of Amaechi’s genitalia, we believe that his search is guided by the princi-

ples found in Bell and subsequent cases governing sexually invasive

searches.

12 AMAECHI v. WEST

ing and penetrating the arrestee’s exposed genitalia on the public

street.

This Court also has disavowed the type of public search conducted

by West. We have applied the Bell analytical framework to set forth

clear guidelines as to the manner in which a strip search must be con-

ducted in order to comport with an arrestee’s Fourth Amendment pro-

tection against unreasonable searches. Bell, 441 U.S. at 559. For

instance, we have repeatedly emphasized the necessity of conducting

a strip search in private. See Dorlouis, 107 F.3d at 256 (emphasizing

that "[t]he search did not occur on the street subject to public viewing

but took place in the privacy of the police van."); Polk v. Montgomery

Co., Md., 782 F.2d 1196, 1201-02 (4th Cir. 1986) ("[Whether the strip

search was conducted in private] is especially relevant in determining

whether a strip search is reasonable under the circumstances.");

Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) ("One of the

critical, and certainly most obvious, elements in the Bell v. Wolfish

balancing inquiry into the reasonableness of a strip search is ‘the

place in which it is conducted.’"). Despite these cases requiring the

strip search to be conducted in private, West conducted his search of

Amaechi on the street in front of the police cruiser, making it possible

for the other police officers, Amaechi’s neighbors, and her family to

observe.

Moreover, this Court has recognized the fact, first established in

Bell, that the intrusive, highly degrading nature of a strip search

demands a reason for conducting such a search that counterbalances

the invasion of personal rights that such a search involves. Logan, 660

F.2d at 1013. In Logan, we held the fact that the arrestee was charged

only with an offense that was not commonly associated with the pos-

session of weapons or contraband, without any indication that the

arrestee possessed weapons or other contraband, weighed against the

constitutionality of the strip search because "Logan’s strip search bore

no . . . discernible relationship to security needs at the Detention Cen-

ter that, when balanced against the ultimate invasion of personal

rights involved, it could reasonably be thought justified." Id. Simi-

larly, because West had no reason to believe that Amaechi posed a

danger to the officers, and because Amaechi was arrested for a misde-

meanor noise violation, West should have known that his search of

Amaechi similarly was unjustified and therefore unconstitutional.

AMAECHI v. WEST 13

Our agreement with the district court that West’s search is clearly

analogous to precedent involving strip searches is further supported

by Virginia’s definition of strip search.15 Virginia’s statutory law,

which is similar to that of most states, provides that, "[s]trip search

shall mean having an arrested person remove or arrange some or all

of his clothing so as to permit a visual inspection of the genitals, but-

tocks, anus, female breasts, or undergarments of such person." Va.

Code Ann. § 19.2-59.1(F) (Michie 1999) (emphasis added). Contrary

to West’s argument that his search of Amaechi does not meet the req-

uisites of strip search as that phrase is defined by state statute, West’s

search actually was self-evidently more invasive than the type of

search contemplated by the statute because he went beyond visual

inspection into physical inspection.

Those statutory restrictions provided West with ample notice that

his search of Amaechi was unreasonable. The statute requires an offi-

cer to conduct a strip search only in a private place. See Va. Code

Ann. § 19.2-59.1(A). The provision further requires that strip

searches, where permissible, be conducted "by persons of the same

sex as the person arrested and on the premises where the search can-

not be observed by persons not physically conducting the search." Id.

Therefore, West’s search of Amaechi violated every aspect of Virgin-

ia’s own law governing the propriety of strip searches. Because the

state statute is in accordance with federal law governing limitations

on the manner and scope of strip searches, West had no reason to

believe his search of Amaechi was reasonable or fell within a ques-

tionable area of law.16

15

It is important to note that the technical language of the Virginia stat-

ute is not the controlling factor in determining whether this was in fact

a strip search. Rather, that determination is informed by federal law. See

Davis v. Scherer, 468 U.S. 183, 194-95 (1984) (holding that the only rel-

evant inquiry is whether federal law rights are clearly established; it does

not matter that the officer simultaneously violates state law rights that are

clearly established). Nevertheless, because states define strip search in a

uniform fashion, see, e.g., Colo. Rev. Stat. Ann. § 16-3-405 (West 1998);

Conn. Gen. Stat. Ann. § 54-33k (West 1994); Fla. Stat. Ann. § 901.211

(West 1996); Iowa Code Ann. § 702.23 (West 1993), we find state law

persuasive on our interpretation of what constitutes a strip search.

16

In support of our determination that a reasonable officer should have

been on notice that his search violated the Fourth Amendment, we note

14 AMAECHI v. WEST

III.

The entire body of jurisprudence applying limits on the type of sex-

ually intrusive search conducted by West provides West with notice

that his search of Amaechi was unconstitutionally unreasonable.

There was absolutely no justification for this type of public search, in

the form of a safety, security, or evidentiary concern; it was made

incident to a two-day old arrest for a minor noise violation; and

West’s kneading of Amaechi’s buttocks and his touching and penetra-

tion of Amaechi’s exposed genitalia with his ungloved hand affronts

the basic protections of the Fourth Amendment, which at its core is

designed to protect privacy and personal dignity against unjustified

invasion by the State, see Schmerber v. California, 384 U.S. 757, 767

(1966). Accordingly, on the facts shown by Amaechi, we conclude

that Amaechi has alleged a deprivation of her constitutionally pro-

tected right to be free from an unreasonable search and that West is

not entitled to qualified immunity. We, therefore, affirm the district

court’s denial of West’s summary judgment motion based upon his

asserted qualified immunity defense and remand for further proceed-

ings.

AFFIRMED AND REMANDED

that the Sixth Circuit has held that a reasonable officer should be on

notice that simply requiring an individual to sit naked while the officers

search the arrestee’s home is a violation of the Fourth Amendment,

thereby depriving the officers of qualified immunity. See Hall v. Shipley,

932 F.2d 1147, 1153-54 (6th Cir. 1991). West’s search went far beyond

simply requiring Amaechi to stand naked while West conducted the

search.