Tina Cates v. Bruce Stroud

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TINA CATES, No. 18-17026

Plaintiff-Appellant,

D.C. No.

v. 2:17-cv-01080-

GMN-PAL

BRUCE D. STROUD; BRIAN

WILLIAMS, SR.; JAMES DZURENDA;

ARTHUR EMLING, JR.; MYRA OPINION

LAURIAN,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted May 29, 2020

San Francisco, California

Filed September 25, 2020

Before: William A. Fletcher, Jay S. Bybee, and

Paul J. Watford, Circuit Judges.

Opinion by Judge W. Fletcher

2 CATES V. STROUD

SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment

for defendants in an action brought pursuant to 42 U.S.C.

§ 1983 and state law alleging that plaintiff’s constitutional

rights were violated when she was, among other things,

subjected to a strip search upon arriving at a prison to visit

her boyfriend.

The panel held that plaintiff’s unconsented strip search

was unreasonable under the Fourth Amendment. The panel

held that even if there was a reasonable suspicion that

plaintiff was seeking to bring drugs into the prison (a question

the panel did not reach), the criminal investigator who

performed the search violated plaintiff’s rights under the

Fourth Amendment by subjecting her to the search without

first giving plaintiff the option of leaving the prison.

The panel held that prior to the panel’s decision in this

case, there had been no controlling precedent in this circuit,

or a sufficiently robust consensus of persuasive authority in

other circuits, holding that prior to a strip search a prison

visitor—even a visitor as to whom there is reasonable

suspicion—must be given an opportunity to leave the prison

rather than be subjected to the strip search. Accordingly,

because at the time of the violation, plaintiff did not have a

clearly established Fourth Amendment right to leave without

being subjected to the search, defendant was entitled to

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CATES V. STROUD 3

qualified immunity. The panel held that plaintiff’s other

causes of action, which included additional Fourth

Amendment and due process claims, failed.

COUNSEL

Travis Barrick (argued), Gallian Welker Beckstrom, Las

Vegas, Nevada, for Plaintiff-Appellant.

D. Randall Gilmer (argued), Chief Deputy Attorney General;

Frank A. Toddre II, Senior Deputy Attorney General; Aaron

D. Ford, Attorney General; Office of the Attorney General,

Las Vegas, Nevada; for Defendants-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

On February 19, 2017, Tina Cates went to visit her

boyfriend, Daniel Gonzales, who was incarcerated at High

Desert State Prison in Nevada. Prison officials believed

Cates intended to smuggle drugs to Gonzales. A female

officer took Cates to a bathroom and instructed her to disrobe

and remove her tampon. Cates complied, believing that she

had no choice, and the officer performed a visual body cavity

strip search. Another officer searched her car. He asked

permission to search the contents of Cates’s phone, and Cates

refused to grant permission. No contraband was found.

Cates was not allowed to visit Gonzales, and her visiting

privileges at the prison were terminated. Cates brought suit

against several prison officials under 42 U.S.C. §1983. The

district court granted summary judgment to all defendants.

4 CATES V. STROUD

We hold that the defendant who performed the strip

search violated Cates’s rights under the Fourth Amendment,

but that the defendant is protected by qualified immunity.

I. Background

Because this case comes before the panel on an appeal of

a grant of summary judgment for defendants, we draw all

reasonable factual inferences in favor of Cates. Tolan v.

Cotton, 572 U.S. 650, 656–57 (2014). We recount the facts

viewed through that lens.

At the time of the episode in question, Cates had been

dating Gonzales for almost three years. She had known him

for almost twenty years. Gonzales had been incarcerated at

High Desert State Prison (“HDSP”) since sometime in 2015

or early 2016. Cates submitted an application to visit

Gonzales, which was approved in approximately August or

September of 2016. After that approval, Cates visited

Gonzales weekly.

On February 19, 2017, Cates arrived at HDSP around

11:30 a.m. for her regular visit. Signs on the premises of the

prison alerted visitors that all persons and vehicles on the

property were subject to search. As she had done at the

beginning of every previous visit, Cates signed a consent

form reading:

I, the undersigned, being free from coercion,

duress, threats or force of any kind, do hereby

freely and voluntarily consent to the search of

my person, vehicle and other property which

I have brought onto prison grounds. I agree

that the search maybe [sic] conducted by duly

CATES V. STROUD 5

authorized Correctional Officers of the

Department of Corrections or by other law

enforcement officers specifically authorized

by the Warden. I understand that if I do not

consent to the search of my person, vehicle or

other property, I will be denied visitation on

this date and may also be denied future visits

pursuant to Administrative Regulation 719.

Unbeknownst to her, an investigation of Cates had been

initiated by a non-party correctional officer of HDSP.

Defendant Arthur Emling, Jr., a criminal investigator with the

Nevada Office of the Inspector General, stated in his

deposition that the investigation was prompted by a tip

received from “two confidential credible sources” that Cates

might try to bring drugs into the prison. Other than Emling’s

statement, the record contains no information about the origin

or reliability of the tip.

On the day of Cates’s visit, Emling had applied for and

received a warrant to search Cates’s “person,” to search “any

vehicles used and registered by Cates to transport herself to

High Desert State Prison,” and to seize “[a]ny and all [i]llegal

[c]ontrolled [s]ubstances/[n]arcotics.” The warrant did not

specifically authorize a visual body cavity strip search of

Cates’s “person.” The warrant was never executed.

Defendants do not argue to us that, even if executed, the

search warrant authorized a strip search.

After Cates signed the consent form, Emling and Myra

Laurian (“Laurian”), a female criminal investigator for the

Office of the Inspector General, approached Cates, confirmed

her identity, and told her, without explanation, to follow

them. Cates believed that Emling and Laurian were “cops”

6 CATES V. STROUD

or prison officials, and that she was in their custody. Cates

did not feel free to leave. She stated in her deposition that

neither Emling nor Laurian informed her that she was free to

leave. Emling and Laurian led Cates to the prison

administration building.

Laurian took Cates into a bathroom. Laurian told her to

remove her clothing, including her bra and underwear, and to

remove her tampon. According to Cates, Laurian “ordered [],

and didn’t ask” her to bend over and spread her cheeks.

Cates complied. She stated in her deposition, “I didn’t know

if I could [object]. I don’t know what the laws are. I was

complying to an authority.” Laurian found no drugs or other

contraband on Cates’s person. Despite her prior assurances

that she would do so, Laurian did not supply a replacement

tampon. Rather, she provided, in Cates’s words, “toilet paper

to shove down there.”

Cates stated in her deposition that she did not consent to

the strip search. Rather, she stated that, in signing the consent

form she had signed on every prior visit to the prison, she

understood that she was consenting only to a “normal

search.” She understood that she had consented to “[a] search

that is a pat-down that they normally do when you go through

the prison.”

Cates stated that after the strip search Emling told

Laurian, “I need you to watch [Cates] while I go search her

car.” Emling stated in his deposition that “Cates was not

detained,” and “could leave at any time.” However,

defendants acknowledge in their brief to our court that “Cates

was detained in HDSP administration during the search” of

her car. While Laurian detained Cates, Emling took Cates’s

CATES V. STROUD 7

car keys from a locker and searched her car. Emling found

no drugs or other contraband in Cates’s car.

Emling took Cates’s phone out of her car and asked for

permission to search its contents. Emling then told Cates for

the first time that he had a search warrant. He told her that

the warrant did not authorize a search of her phone. Cates

denied permission to search the contents of her phone. She

stated in her deposition that she denied permission because of

the personal nature of some of the photographs in her phone.

After Cates refused the search of her phone, prison

officials terminated her visit to the prison. Cates left HDSP

and drove home. On the way home, she bled through her

clothes. Cates did not stop on the way home to buy another

tampon because, she stated, “I just wanted to get home and

clean myself up and - like, I felt violated. And the fastest

thing I wanted to is just get home and - it’s an embarrassing

thing for a female. You just want to go clean yourself up.

It’s gross.”

On her way home, Cates spoke to Gonzales on the phone.

Because Gonzales was incarcerated, the call was recorded.

Cates told Gonzales what happened and said that she “fe[lt]

violated.” Cates told Gonzales that “I told her that she could

because, I mean, I’m not bringing drugs in, you know what I

mean.”

Cates stated in her deposition that the search at HDSP

“traumatized me. . . . I’ve never experienced anything like

that in my life. . . . I’m still in shock over it.” She stated that

she rushed home to clean “[t]he blood, and the violation that

I felt from the - having to take my clothes off and spread my

cheeks open and all that for the lady.” Cates stated, “I have

8 CATES V. STROUD

a clean record. I take pride in that. I’m a law-abiding

citizen.” Cates took off work and did not leave her house for

several days because, she stated: “I was emotionally messed

up in the head from the situation that I had gone through at

the prison.” Cates also increased the dosage of anxiety

medication that she had previously been prescribed.

II. NDOC Guidelines

Nevada Department of Corrections (“NDOC”) guidelines,

applicable to both inmates and visitors, mandate that

“[s]earches [ ] be conducted in a manner that causes the least

disruption and affords respect and privacy for the property or

person searched. Staff will avoid unnecessary force or

embarrassment.” “Whenever practical and where there is no

undue risk to the officers or employees conducting the search,

the person or inmate to be searched will remain within view

of the property being searched.”

NDOC provides guidance specifically regarding searches

of visitors. “Every visitor . . . will be subject to pat down,

frisk and personal property searches and may be subject to

strip searches. Prior to the search, the visitor will be

informed of the type of search to be performed and of the

visitor’s option to refuse to be searched.” “If the planned

search is to be a strip search, the visitor must give consent in

writing to be strip searched, unless a search warrant has been

obtained and a peace officer is present.” “Strip searches may

only be conducted [if] . . . [t]he person is notified of the right

to refuse to be searched and gives written approval,” “[t]he

search is conducted by two staff members trained in

conducting searches and of the same gender as the person

being searched,” and “[t]he search is conducted in a private

area as near the perimeter entrance as possible.”

CATES V. STROUD 9

III. Procedural History

Cates alleged nine causes of action against five different

defendants for violation of the First, Fourth, Eighth, and

Fourteenth Amendments of the United States Constitution.

Cates sought damages as well as injunctive and declaratory

relief.

Cates also alleged causes of action under the Nevada state

constitution. However, she mentions the Nevada constitution

only once in her brief to us, and she cites no Nevada case.

She has therefore waived any causes of action under the state

constitution. See Brown v. Rawson-Neal Psychiatric Hosp.,

840 F.3d 1146, 1148 (9th Cir. 2016).

The district court granted summary judgment to all

defendants on all causes of action.

IV. Standard of Review

We review a district court’s grant of summary judgment

de novo. See Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th

Cir. 2017). “Summary judgment is appropriate when,

viewing the evidence in the light most favorable to the

nonmoving party, there is no genuine dispute as to any

material fact.” Id. (internal quotation marks and citation

omitted). In other words, a plaintiff survives a defendant’s

motion if she produces “evidence such that a reasonable juror

drawing all inferences in [her] favor . . . could return a verdict

in [her] favor.” Id. at 441 (internal quotation marks and

citation omitted).

10 CATES V. STROUD

V. Discussion

A. Fourth Amendment

Cates’s only viable cause of action is her claim that the

unconsented strip search violated her rights under the Fourth

Amendment. For the reasons that follow, we hold that the

strip search violated the Fourth Amendment. However, we

also hold that Laurian, who conducted the strip search, is

protected from a damages suit by qualified immunity.

Because there is little to no likelihood that Cates might again

be subjected to a strip search under comparable

circumstances, prospective declaratory and injunctive relief

are unavailable.

Qualified immunity protects government officials acting

in good faith and under the color of state law from suit under

§ 1983. Pearson v. Callahan, 555 U.S. 223, 231 (2009).

Qualified immunity bars suits against government officials

when either (1) no deprivation of constitutional rights was

alleged or (2) the law dictating that specific constitutional

right was not yet clearly established. Id. at 236. Courts may

begin with either prong of the analysis. Id.

If a constitutional violation is established, satisfying the

first prong, the second prong of a qualified immunity analysis

asks whether the law prohibiting the action was “clearly

established” at the time of the incident in question. Id. The

function of the inquiry under the second prong is to ensure

that officials are subject to suit only for actions that they

knew or should have known violated the law. Hope v. Pelzer,

536 U.S. 730, 741 (2002). Law is “clearly established” for

the purposes of qualified immunity analysis if “every

reasonable official would have understood that what he is

CATES V. STROUD 11

doing violates that right.” Taylor v. Barkes, 135 S. Ct. 2042,

2044 (2015) (internal quotations and citations omitted). An

official can be on notice that his conduct constitutes a

violation of clearly established law even without a prior case

that had “fundamentally similar” or “materially similar” facts.

Hope, 536 U.S. at 741. In the analysis that follows, we

address both prongs.

1. Fourth Amendment Violation

The Fourth Amendment prohibits unreasonable searches.

U.S. Const. Amend. IV; Bell v. Wolfish, 441 U.S. 520, 558

(1979). To determine whether a particular search is

unreasonable, the intrusion on the individual’s privacy

interests must be balanced against “its promotion of

legitimate governmental interests.” Delaware v. Prouse, 440

U.S. 648, 654 (1979). A prison “is a unique place fraught

with serious security dangers. Smuggling of money, drugs,

weapons, and other contraband is all too common an

occurrence.” Bell, 441 U.S. at 559. In determining whether

a prison search is reasonable under the Fourth Amendment,

the prison’s “significant and legitimate security interests”

must be balanced against the privacy interests of those who

enter, or seek to enter, the prison. Id. at 560.

It is well-established that prisoners do not shed all

constitutional rights at the prison gate, though these rights

may be limited or restricted. See id. at 545–546; Sandin v.

Conner, 515 U.S. 472, 485 (1995); see also Gerber v.

Hickman, 291 F.3d 617, 620 (9th Cir. 2002) (noting that

while “[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution,” “it is also

clear that imprisonment carries with it the . . . loss of many

significant rights” (citations and quotations omitted)).

12 CATES V. STROUD

“Prisoners retain only those rights ‘not inconsistent with their

status as . . . prisoners or with the legitimate penological

objectives of the corrections system.’” Gerber, 291 F.3d at

620 (citing Hudson v. Palmer, 468 U.S. 517, 523 (1984)

(alterations omitted)).

Like prisoners, prison visitors retain only those rights that

are consistent with the prison’s significant and legitimate

security interests. But visitors’ privacy interests, and their

threats to prison security, are distinct from those of inmates

and detainees. See, e.g., Boren v. Deland, 958 F.2d 987, 988

(10th Cir. 1992); Daugherty v. Campbell, 935 F.2d 780, 786

(6th Cir. 1991); see also Blackburn v. Snow, 771 F.2d 556,

563 (1st Cir. 1985) (recognizing that “free citizens entering

a prison, as visitors, retain a legitimate expectation of

privacy, albeit one diminished by the exigencies of prison

security”). Any constraints on visitors’ rights must be

“justified by the considerations underlying our penal system”

and their curtailment necessary to the institution’s needs.

Hudson, 468 U.S. at 524 (internal citation omitted).

As we have recognized, “[p]rison officials . . . have a

strong interest in preventing visitors from smuggling drugs

into the prison.” Mendoza v. Blodgett, 960 F.2d 1425, 1433

(9th Cir. 1992). Concerns about smuggling drugs and other

contraband, such as weapons, into the facility may justify a

variety of security screening measures. The nature of

permissible screening measures will vary depending on the

nature of the threat. “Courts must consider the scope of the

particular intrusion, the manner in which it is conducted, the

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

conducted.” Bell, 441 U.S. at 559.

CATES V. STROUD 13

While “some quantum of individualized suspicion is

usually a prerequisite to a constitutional search or seizure,”

United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976),

the unique context of the prison facility does not always

require individualized suspicion. Some searches of visitors

to “sensitive facilities,” like courthouses or prisons, require

no individualized suspicion provided that the searches are

both limited and necessary. See McMorris v. Alioto, 567 F.2d

897, 899 (9th Cir. 1978). Pat-down searches and metal

detector screenings of visitors may be conducted as a

prerequisite to visitation without any individualized

suspicion, given the weighty institutional safety concerns.

Such searches are “relatively inoffensive” and “less intrusive

than alternative methods,” and they may be avoided by the

simple expedient of not visiting the prison. Id. at 900–01.

Visual body cavity searches, such as the search to which

Cates was subjected, are at the other end of the spectrum.

“Strip searches involving the visual exploration of body

cavities [are] dehumanizing and humiliating.” Kennedy v.

Los Angeles Police Dep't, 901 F.2d 702, 711 (9th Cir. 1990),

abrogated on other grounds by Hunter v. Bryant, 502 U.S.

224 (1991) (per curiam); see also Bell, 441 U.S. at 576–77,

(Marshall, J., dissenting) (stating that “body-cavity searches

. . . represent one of the most grievous offenses against

personal dignity and common decency”). “The intrusiveness

of a body cavity search cannot be overstated.” Fuller v. M.G.

Jewelry, 950 F.2d 1437, 1445 (9th Cir. 1991) (alteration and

citation omitted). The Fourth Amendment permits these

searches, even of inmates, only in limited circumstances. See

Bell, 441 U.S. 520, 558–60 (upholding policy of visual body

cavity strip searches of inmates after contact visits); Florence

v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 566

U.S. 318 (2012) (upholding similar searches of detainees

14 CATES V. STROUD

before they are introduced into the general population of a

facility); Bull v. City and County of San Francisco, 595 F.3d

964 (9th Cir. 2010) (en banc) (upholding policy of strip

searches of arrestees before introduction into the general jail

population); see also Edgerly v. City and County of San

Francisco, 599 F.3d 946, 957 (9th Cir. 2010) (strip search of

an arrestee never placed in the general jail population requires

reasonable suspicion).

Prisoners may be subjected to visual body cavity strip

searches based on “reasonable suspicion” in order “to protect

prisons and jails from smuggled weapons, drugs or other

contraband which pose a threat to the safety and security of

penal institutions.” Fuller, 950 F.2d at 1447; see also

Kennedy, 901 F.2d at 715. However, such searches “are valid

only when justified by institutional security concerns.”

Fuller, 950 F.2d at 1447. In circumstances where they

threaten prison security, prison visitors may be strip searched

when based on reasonable and individualized suspicion. See

Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000)

(recognizing “a long and unbroken series of decisions by our

sister circuits” finding “strip searches of prison visitors . . .

unconstitutional in the absence of reasonable suspicion that

the visitor was carrying contraband”); see, e.g., Blackburn,

771 F.2d at 566–67 (rejecting “appellants’ attempt to impute

or casually transfer to free citizens visiting a prison the same

circumscription of rights suffered by inmates”); Calloway v.

Lokey, 948 F.3d 194, 202 (4th Cir. 2020) (stating that “the

standard under the Fourth Amendment for conducting a strip

search of a prison visitor—an exceedingly personal invasion

of privacy—is whether the prison officials have a reasonable

suspicion, based on particularized and individualized

information, that such a search will uncover contraband on

the visitor’s person on that occasion”).

CATES V. STROUD 15

However, even where there is reasonable suspicion that a

prison visitor is carrying contraband, a strip search is

permissible only if it can be justified by a legitimate security

concern. See Fuller, 950 F.2d at 1447. That justification

does not exist when the visitor is not in a position to introduce

contraband into the prison. For example, there is no

legitimate security justification when a visitor is still in an

administrative building of the prison with no possibility of

contact with a prisoner. Only when a visitor could introduce

contraband into the prison is the risk comparable to that posed

by a prisoner who returns to the general prison environment

after contact with a visitor, or a detainee who is placed with

the general prison population after booking. See Bell, 441

U.S. 520; Florence, 566 U.S. 318.

A critical distinction between a visitor, on the one hand,

and a prisoner or detainee, on the other, is that a visitor can

leave the administrative area of a prison without ever coming

into contact with a prisoner. The Sixth Circuit relied on this

distinction in Spear v. Sowders, 71 F.3d 626 (6th Cir. 1995)

(en banc), to hold that a prison visitor could be compelled to

submit to a digital body cavity strip search based solely on

reasonable suspicion only if the visitor was given the

opportunity to terminate her visit and depart instead.

Kentucky prison officials believed Spear was bringing drugs

to an inmate during her visits. They refused to allow her into

the prison proper, where she would have had contact with

prisoners, and they refused to allow her to leave the

administrative area of the prison without submitting to a body

cavity strip search. Id. at 628–29. The search “embarrassed,

humiliated, and demeaned her.” Id. at 629. The court held

that “the residual privacy interests of visitors in being free

from such an invasive search requires that prison authorities

have at least a reasonable suspicion that the visitor is bearing

16 CATES V. STROUD

contraband before conducting such a search.” Id. at 630. The

court held further that even if there was reasonable suspicion

that Spear was carrying drugs, she had a “right not to be

searched for administrative reasons without having a chance

to refuse the search and depart.” Id. at 632. The court noted

that “the same logic that dictates that such a search may be

conducted only when there is reasonable suspicion also

demands that the person to be subjected to such an invasive

search be given the opportunity to depart.” Id.

The Seventh Circuit has endorsed the reasoning of Spear:

“[I]f a visitor showed up at the gates of the prison and was

told that anyone who visits an inmate has to submit to a strip

search, and replied that in that event she would not visit him,

the guards would not seize her and subject her to the strip

search anyway—or if they did, they would be violating the

Fourth Amendment. . . . The visitor thus always had the legal

option of avoiding the strip search by forgoing the visit.”

Burgess, 201 F.3d at 945. See also Stephen v. MacKinnon,

No. CIV.A. 94-3651-B, 1997 WL 426972, at *6 (Mass. 1997)

(finding “[t]he portion of the search which occurred after Ms.

Stephen expressed her wish to leave . . . unreasonable and in

violation of [her] constitutional right to be free of an

unreasonable search”); Shields v. State, 16 So. 85, 86 (Ala.

1894) (describing “[t]he examination or search must be

voluntary on the part of [visitors]. If they do not consent,

admission to the jail or access to the prisoners may be

refused”).

Using a similar analysis, the Eighth Circuit found a

Fourth Amendment violation when a visitor—who had

already finished her visit to the jail and was therefore “no

longer in a position to smuggle contraband” and “no longer

posed a threat to prison security”—was subjected to a visual

CATES V. STROUD 17

body cavity strip search. Marriott By and Through Marriott

v. Smith, 931 F.2d 517, 518, 520 (8th Cir. 1991). In Hunter

v. Auger, 672 F.2d 668, 675 (8th Cir. 1982), the Eighth

Circuit had previously held that visitors may be subjected to

strip searches if there are “reasonable grounds . . . to believe

that a particular visitor will attempt to smuggle contraband”

into the prison. The court wrote in Marriott that “[t]he mere

fact that this case and Hunter involved people who had gone

to visit prisoners is a superficial similarity. That similarity

does not justify an officer relying on Hunter when the

purpose for the Hunter rule does not exist.” 931 F.2d at 521.

We agree with the Sixth, Seventh and Eighth Circuits.

Our agreement with our sister circuits follows naturally from

our precedent on prison searches and on screening measures

in sensitive facilities more generally. In upholding a blanket

policy requiring strip searches of admittees to the county jail

in Bull, we specifically noted that we were not “disturb[ing]

our prior opinions considering searches of arrestees who were

not classified for housing in the general jail or prison

population.” 595 F.3d at 981. Our rationale in Bull, like the

Supreme Court’s rationale in Bell, 441 U.S. 520, was based

on the jail’s security interests within the jail. See Bull, 595

F.3d at 981 n.17 (“The strip search policy at issue in this

case, and our holding today, applies only to detainees

classified to enter the general corrections facility population.”

(emphasis added)); see also Bell, 441 U.S. at 558 (upholding

searches of “[i]nmates at all Bureau of Prison facilities . . .

after every contact visit with a person from outside the

institution”). We specifically noted in Bull that “searches of

arrestees at the place of arrest, searches at the stationhouse

prior to booking, and searches pursuant to an evidentiary

investigation must be analyzed under different principles than

those at issue today.” Id. at 981.

18 CATES V. STROUD

Because the ability of prison officials to conduct strip

searches of visitors based on reasonable suspicion is premised

on the need to prevent introduction of contraband into the

prison, a search of a visitor who no longer intends to enter the

portion of the prison where contact with a prisoner is

possible, or who was leaving the prison, must rely on another

justification. Ordinarily, a visitor cannot introduce

contraband into the prison simply by appearing in the

administrative area of the prison. If prison officials have

reasonable suspicion that such a visitor is carrying

contraband, the prison’s security needs would justify a strip

search only if the visitor insists on access to a part of the

prison where transfer of contraband to a prisoner would be

possible. If the visitor would prefer to leave the prison

without such access, the prison’s security needs can be

satisfied by simply letting the visitor depart.

NDOC’s own guidelines support this analysis. As we

noted above, they provide:

Prior to the search, the visitor will be

informed of the type of search to be

performed and of the visitor’s option to refuse

to be searched. If the planned search is to be

a strip search, the visitor must give consent in

writing to be strip searched, unless a search

warrant has been obtained and a peace officer

is present. In the absence of a search warrant,

any person not giving permission to search

upon request will be required to leave the

institution/facility grounds.

The guidelines continue: “Strip searches may only be

conducted [when] [t]he person is notified of the right to

CATES V. STROUD 19

refuse to be searched and gives written approval to be

searched per the ‘Consent to Search’ form.” The NDOC’s

guidelines are of course based on the security needs of the

prison. Notably, the guidelines in no way suggest that it is

necessary for institutional security to conduct a search of a

visitor who prefers to leave the prison rather than subject

herself to a strip search. Prison regulations in many states are

similar. See, e.g., Ill. Admin. Code § 2501.220(a)(3)

(permitting strip searches of visitors only if there is

“reasonable suspicion that the visitor may be in possession of

contraband or be attempting to transport contraband into the

facility” and “[t]he visitor [is] informed that he may refuse to

submit to the search . . . and may be denied the visit unless he

specifically consents in writing to a strip search”); N.Y.

Admin. Code § 200.2(f) (describing a “visitor must be

informed that he/she has the option to submit . . . or to

refuse”); Miss. Admin. Code Pt. 2, R. 2.1.5(4) (“When any

visitor is believed, upon reasonable suspicion, to be carrying

contraband, they will be asked to consent to a strip search

and/or body cavity search.”).

In other circumstances or settings, a refusal to allow

someone to depart rather than submit to a search may be

justified by legitimate security needs. For example, we held

in U.S. v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (en banc),

that a would-be airplane passenger could be subjected to a

pat-down, empty-your-pockets search once he had entered the

security area, even though he expressed a desire to leave

rather than be subjected to the search. We held that a rule

allowing the would-be passenger to depart in such a

circumstance would “make[] little sense in a post-9/11

world.” Id. Rather, such a rule

20 CATES V. STROUD

would afford terrorists multiple opportunities

to attempt to penetrate airport security by

‘electing not to fly’ on the cusp of detection

until a vulnerable portal is found. This rule

would also allow terrorists a low-cost method

of detecting systematic vulnerabilities in

airport security, knowledge that could be

extremely valuable in planning future attacks.

Id. at 960–61.

Our decision in Aukai is entirely consistent with a holding

that a prison visitor who does not insist on access to the

prison proper must be allowed to leave rather than be

subjected to a strip search. First, prisons are not faced with

the same sort of security threats as airports. Our rationale in

Aukai made perfect sense in the context of airport screening,

where a terrorist is intent on bringing down an airplane—any

large passenger airplane—and needs to find a soft spot at only

one airport—any significant airport—to do enormous

damage. By contrast, a prison visitor intent on bringing

contraband into a prison is typically interested in bringing

contraband to a particular person or group of people in that

prison. Second, the search in Aukai was not intrusive. The

would-be passenger was only wanded, patted down, and

asked to empty his pockets. An entirely different case would

have been presented in Aukai if an unconsented strip search

had been at issue.

We are aware that in U.S. v. Prevo, 435 F.3d 1343 (11th

Cir. 2006), the Eleventh Circuit relied on airport search cases

to reject an argument that a person should have been allowed

to leave a prison parking lot rather than have her car searched.

The court wrote that an option to leave

CATES V. STROUD 21

would constitute a one-way street for the

benefit of a party planning airport mischief,

since there is no guarantee that if he were

allowed to leave he might not return and be

more successful. As we observed, established

search procedures are more valuable for what

they discourage than what they discover. Any

policy that reduces the likelihood of a

successful search will decrease the risk to the

wrongdoer. A policy allowing the wrongdoer

to back out on the brink of discovery reduces

the risk to zero, leaving her free reign to probe

the security measures until an opening is

found.

Id. at 1348–49 (citations and alterations omitted). The

Eleventh Circuit’s concerns are not compelling when applied

to an unconsented strip search of a visitor who would prefer

to leave rather than be searched. A strip search is humiliating

and intrusive. Moreover, in Prevo some prisoners had access

to the parking lots at the prison. See Prevo, 435 F.3d at 1347

(noting that the pistol on the front seat of a visitor’s car would

be “accessible to prisoners passing by who were inclined to

wrongdoing,” and concluding that “[a]t least where inmates

have access to cars parked in prison facility parking lots, a

search of the vehicle is reasonable”); see also Neumeyer v.

Beard, 421 F.3d 210, 211 (3rd Cir. 2005) (“Notably, some

inmates have outside work details and such inmates may have

access to visitors’ vehicles parked at the prison.”) (quotation

omitted); McDonell v. Hunter, 809 F.2d 1302, 1309 (8th Cir.

1987) (finding “it is not unreasonable to search [employee]

vehicles that are parked within the institution’s confines

where they are accessible to inmates”).

22 CATES V. STROUD

The court in Spear drew a similar distinction between

strip searches and vehicle searches. See Spear, 71 F.3d

at 633. While holding that Spear should have been given an

opportunity to leave before being subjected to a body cavity

strip search based on reasonable suspicion, the court refused

to hold that the search of her car located on prison grounds

was unreasonable. It noted that “while unpleasant, the nature

of an automobile search is far less intrusive than a strip and

body cavity search, and the interest in preventing the

introduction of contraband remains as great.” Id.; see also

Romo v. Champion, 46 F.3d 1013, 1019 (10th Cir. 1995)

(stating that a “strip search is a far cry from the routine, rather

nonintrusive search initially conducted by defendants at the

roadblock . . . the strip search of an individual by government

officials, regardless how professionally and courteously

conducted, is an embarrassing and humiliating experience”)

(quotation omitted). It further distinguished the two searches

based on the fact that contraband hidden on or inside a person

would only be transferred to a prisoner through contact with

the prisoner while “an object secreted in a car, to which

prisoners may have access, is a potential threat at all times

after the car enters the grounds.” Spear, 71 F.3d at 633.

Even if there was reasonable suspicion that Cates was

seeking to bring drugs into the prison (a question we do not

reach), Laurian violated her rights under the Fourth

Amendment by subjecting her to a strip search without giving

her the option of leaving the prison rather than being

subjected to the search.

2. Qualified Immunity

We have concluded, in agreement with three of our sister

circuits, that Laurian violated Cates’s rights under the Fourth

CATES V. STROUD 23

Amendment by subjecting her to a strip search without giving

her an opportunity to leave rather than be subjected to the

search. We hold, however, that prior to our decision in this

case the contours of the right in this circuit were not

“sufficiently clear [such] that a reasonable official would

understand that what he is doing violates that right,” and

accordingly extend qualified immunity. Jessop v. City of

Fresno, 936 F.3d 937, 940–41 (9th Cir. 2019) (en banc)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The Supreme Court and our court have addressed strip

searches of detainees. But when Cates was subject to the

strip search at issue in this case, there was no case in this

circuit where we had held that a prison visitor has a right to

leave the prison rather than undergo a strip search conducted

on the basis of reasonable suspicion. While we “do not

require a case directly on point, . . . existing precedent must

have placed the . . . question beyond debate.” Al-Kidd, 563

U.S. at 741. Cases allowing strip searches of detainees

support a holding that Cates’s rights under the Fourth

Amendment were violated primarily based on their

differences from, rather than their similarities to, Cates’s

case. Additionally, while “in a sufficiently ‘obvious’ case of

constitutional misconduct, we do not require a precise factual

analogue in our judicial precedents,” we have noted that this

“exception . . . is especially problematic in the Fourth-

Amendment context” where officers are confronted with

“endless permutations of outcomes and responses.” Sharp v.

County of Orange, 871 F.3d 901, 911–12 (9th Cir. 2017).

Existing case law has already clearly established that a

strip search of a prison visitor conducted without reasonable

suspicion is unconstitutional. We do not reach the question

whether there actually was reasonable suspicion that Cates

24 CATES V. STROUD

was carrying drugs on her person. But, for purposes of a

qualified immunity analysis, it was not unreasonable for

Laurian to have believed that there was reasonable suspicion,

given that a search warrant (though unexecuted) had been

issued for a search of Cates’s “person” for drugs. However,

prior to our decision in this case, there has been no

controlling precedent in this circuit, or a sufficiently robust

consensus of persuasive authority in other circuits, holding

that prior to a strip search a prison visitor—even a visitor as

to whom there is reasonable suspicion—must be given an

opportunity to leave the prison rather than be subjected to the

strip search.

B. Other Causes of Action

We hold that Cates’s other alleged causes of action all

fail. Cates alleges two additional Fourth Amendment causes

of action: that Emling and Laurian violated the Fourth

Amendment when they detained her while searching her car,

and again when they took her phone. Neither allegation

states a constitutional violation. Some form of temporary

detention while they searched Cates’s car was permissible

because officers’ “authority to detain incident to a search is

categorical.” Muehler v. Mena, 544 U.S. 93, 98 (2005).

Cates’s detention during the search of her car lasted for only

a few minutes and did not involve serious physical restriction.

The brief moment when Defendant Emling was holding

Cates’s phone and asking her for the passcode (which Cates

refused to provide) did not “meaningful[ly] interfere[] with

[her] possessory interests in” her phone. United States v.

Brown, 884 F.2d 1309, 1311 (9th Cir. 1989).

Cates alleges three due process causes of action: she

contends that her due process rights were violated when

CATES V. STROUD 25

(1) Emling and Laurian failed to give her a copy of the search

warrant; (2) a prison official denied her access to the prison

on February 17 without reasoning or appeal; and (3) other

prison officials indefinitely suspended her permission to visit

the prison. Cates’s first due process cause of action fails

because the warrant was never executed, and she cites no law

requiring the production of an unexecuted warrant. See

United States v. Silva, 247 F.3d 1051, 1058 n.4 (9th Cir.

2001). Cates also cites no caselaw supporting her second and

third due process causes of action.

Cates alleges other causes of action, including that

(1) “she was retaliated against under the First Amendment”

after “she reasonably refused to provide [Emling] the

password to her cell phone, something she had a protected

[First] Amendment right to do”; (2) her Eighth Amendment

right to be free from cruel and unusual punishment was

violated; and (3) prison officials violated her right to equal

protection by terminating her visitation while not doing the

same to other, similarly situated individuals. None of these

other causes of actions has merit.

Conclusion

The unconsented strip search to which Cates was

subjected, without giving her the option of leaving the prison

rather than being subjected to the search, was unreasonable

under the Fourth Amendment. However, because at the time

of the violation Cates did not have a clearly established

Fourth Amendment right to leave without being subjected to

the search, Laurian is entitled to qualified immunity. Cates’s

26 CATES V. STROUD

other causes of action fail. We affirm the district court’s

award of summary judgment to defendants.

AFFIRMED.