Peter Evans v. City of Zebulon, Georgia

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

_________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 9, 2005

No. 02-16424 THOMAS K. KAHN

_________________________ CLERK

D. C. Docket No. 01-00009-CV-JTC-3

PETER EVANS, DETREE JORDAN,

Plaintiffs-Appellees,

versus

DENIS STEPHENS,

Defendant- Appellant,

__________________________

Appeal from the United States District Court

for the Northern District of Georgia

___________________________

(May 9, 2005)

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and

PRYOR, Circuit Judges.

EDMONDSON, Chief Judge:

This case is about an arresting officer's investigatory strip search for the

purpose of discovering drugs on persons who had been arrested lawfully but had been

arrested for offenses that were not drug crimes.

Plaintiffs-Appellees, Peter Evans and Detree Jordan, sued Defendant-

Appellant, Police Officer Denis Stephens, alleging that Officer Stephens violated

their rights under the Fourth Amendment to the United States Constitution. In ruling

on defendants' motion for summary judgment, the district court concluded Officer

Stephens's acts were unconstitutional and not protected by qualified immunity. A

panel of this Court reversed the district court's decision on qualified immunity. We

decided to vacate the panel's decision and to rehear the appeal. Assuming Plaintiffs'

version of the facts is accurate, we now conclude that the pertinent conduct violated

Plaintiffs' constitutional rights and that qualified immunity applies to just one alleged

violation.

BACKGROUND

For this appeal, these alleged and evidenced facts will be supposed to be the

true facts.

Plaintiffs are two black males. The events giving rise to this appeal occurred

on 22 January 1999; Plaintiffs were then in their early and middle twenties. That

night, Evans and Jordan were traveling from Atlanta, Georgia, to Statesboro, Georgia,

where both were or had been enrolled at Georgia Southern University. Evans drove

himself and Jordan in a rental car. Despite that Evans had made the journey between

Atlanta and Statesboro on many earlier occasions, they became lost and traveled

down Interstate 85 instead of Interstate 75.

While trying to return to Interstate 75, Evans and Jordan passed through the

City of Zebulon, Georgia. There, Officer Stephens, a white male, stopped Evans after

Stephens clocked Evans's car traveling at a speed of seventy-two miles per hour in a

2

forty-five mile per hour zone.1 A video camera in Stephens's patrol car recorded the

stop. As Stephens approached Evans, another police officer from the City of Concord

Police Department arrived on the scene. Stephens suspected Evans might have been

driving under the influence, but Evans denied doing so. Stephens then ordered Evans

out of the car and searched Evans's pockets. Stephens claims he found a beer bottle

top in one of Evans's pockets. Evans denies the top was there, and Stephens did not

show the bottle top to the recording camera.

Evans stayed at the rear of the rental car when Officer Stephens approached

Jordan, who remained seated in the passenger seat. Stephens took Jordan's drivers

license and asked him to exit the car as well. With Evans's permission, Stephens

searched the car for about five minutes. Stephens claims he saw an open container

of an alcoholic beverage in the car. Evans denies it, and Stephens did not follow his

usual practice of showing the container to the recording camera.2

Officer Stephens cited Evans for speeding and read him the Georgia Implied

Consent Law, O.C.G.A. § 40-6-392(a)(4). After Stephens asked whether Evans

would consent to a breathalyzer, Evans said he wanted to call his lawyer. Stephens

then placed him under arrest and repeated the request. Evans again said that he

wanted to talk to his attorney. Stephens charged Evans with D.U.I. refusal and

speeding and then placed him in the patrol car. At Stephens's deposition, he said that

Evans had alcohol on his breath, bloodshot eyes, and an unstable demeanor. Officer

1

Evans later plead guilty to reckless driving and does not challenge that plea on appeal.

2

By this time, Stephens was joined by an officer from the Pike County Sheriff's Office.

3

Stephens concluded the facts authorized the arrest of Evans.

At the scene of the stop, Officer Stephens, by radio, requested a search on

Jordan's name to check for outstanding warrants. The dispatcher relayed to Stephens

that a "Detre Jordan" with Plaintiff-Appellant Jordan's date of birth had an

outstanding arrest warrant. Stephens then arrested Jordan.3 After placing Jordan

under arrest, Stephens searched Jordan's pockets; and Stephens said that he would

release Jordan if the warrant was for someone else. While waiting on the tow truck,

Stephens and another officer searched the car and surrounding area for approximately

seven minutes. This search of the car was the second one that revealed, according to

Plaintiffs, nothing.

Officer Stephens then drove Plaintiffs to the Pike County jail. Plaintiffs say

that on the way to the jail, Jordan continued to explain the warrant was not for him

and to request a phone call. Both men also recall Stephens saying that he is the judge

and jury in Zebulon and that he decides who can make phone calls. Evans also recalls

Stephens saying that he would "send you niggers away for a long time."

According to Plaintiffs, Officer Stephens patted them down again before they

entered the county jail building. Stephens informed the jailer on duty, Officer Andre

Dawson, of the charges against Plaintiffs. Dawson recalls reviewing the report on the

"Jordan" in the warrant and concluding that it was not the Plaintiff; Dawson

encouraged Stephens to release Jordan.

3

Stephens did not know what offense had led to the outstanding arrest warrant. The parties agree that

the Detre Jordan in the warrant was not Plaintiff-Appellee Jordan.

4

Officer Stephens became angry and walked Jordan to a room that appeared to

be a supply closet or mop storage room. There, Stephens pestered Jordan with racist

language and ordered Jordan to place his hands on the wall and to remove his shoes

and shirt. Jordan complied. Stephens then ordered Jordan to take off his remaining

clothes. When asked to lower his underwear, Jordan protested by turning around and

saying that Stephens had the wrong person. Jordan says that Stephens then put him

in a choke hold and held him against the wall until Jordan began to gag.4 Jordan

faced the wall again; and then Evans was thrown into the room, hitting Jordan and

causing both men to fall. As Jordan tried to stand, Stephens hit Jordan's side with a

baton-like "cold black" object.5

Evans says that, once he was in the room and standing against the wall,

Stephens again ordered Jordan to take off his underwear. According to Jordan, after

Officer Stephens—in Evans's presence—pulled Jordan's underwear to his ankles,

Stephens used the same "cold black" object to separate Jordan's butt cheeks and

"stuck me in my anus."

After searching Jordan, Stephens turned to Evans. Evans says Stephens told

him to remove his underwear and then—in Jordan's presence—placed "the [same]

stick in my ass." According to Evans, Stephens also used the baton to lift Evans's and

Jordan's testicles. Evans testified at his deposition that Stephens used the same baton

4

According to Evans, the chokehold occurred after Evans was in the room and after Jordan described

the order to take off his underwear as "some bullshit and I ain't going to pull my drawers."

5

Plaintiffs describe the baton-like object as a cold, black cylindrical, object. We use the term

"baton-like object" or "baton" to describe whatever Officer Stephens allegedly used to hit and probe

Plaintiffs.

5

on both Plaintiffs and that Stephens did not clean or wipe down the baton during the

strip search.

While conducting the strip search, Stephens taunted both Plaintiffs with

laughter, racist language and threats of prison—where Stephens promised to send

Plaintiffs. After the strip search, Evans and Jordan were made to dress quickly.

Plaintiffs were then handcuffed to the bench in front of the jailer; they then spent the

night in the general jail population.6

Officer Stephens said he had a reasonable suspicion that Plaintiffs had drugs

based on their demeanor (nervousness at the roadside stop) and their story of being

lost. This suspicion, Stephens claims, justified the strip search for drugs.

Plaintiffs brought suit in the United States District Court for the Northern

District of Georgia, claiming in part, that Stephens violated their rights to the Fourth,

Fifth and Fourteenth Amendments to the United States Constitution, as well as Title

VII of the 1965 Civil Rights Act. In the light of Defendants' motions for summary

judgment, the claims were narrowed to ones based on the Fourth Amendment. The

district court decided, if Plaintiffs' story was true, that the strip search violated Evan's

and Jordan's constitutional rights and that Stephens was entitled to no immunity. A

panel of this Court agreed that the Constitution was violated, because (1) Stephens

lacked reasonable suspicion to perform the strip search; and (2) the manner in which

he conducted the strip search was unreasonable. Evans v. City of Zebulon, 351 F.3d

6

Officer Stephens tells a completely different story: he did not perform a pat down search outside the

jail; he did not place Evans and Jordan in a supply closet, but a trustee cell. He recalls asking Evans and

Jordan to take off their clothing, but not touching or taunting them. Officer Stephens also says that

neither Plaintiff resisted the strip search.

6

485, 497 (11th Cir.2003), vacated by Evans v. City of Zebulon, 364 F.3d 1298 (11th

Cir.2004). The panel also concluded that qualified immunity applied to Officer

Stephens for both violations. Id.

STANDARD OF REVIEW

We review denials of summary judgment de novo. Kesinger ex rel. Estate of

Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.2004). We do not make

credibility determinations, but instead believe the "evidence of the non-movant ... and

all justifiable inferences are to be drawn in his favor." Stewart v. Booker T.

Washington Ins., 232 F.3d 844, 848 (11th Cir.2000) (citations omitted).

As we said in Draper v. Reynolds, 369 F.3d 1270, 1272 (11th Cir.2004), and

Rowe v. Ft. Lauderdale, 279 F.3d 1271, 1279 n. 9 (11th Cir.2002), we accept the

nonmovant's version of the events when reviewing a decision on summary judgment.

When the nonmovant has testified to events, we do not (as urged by Plaintiffs'

counsel) pick and choose bits from other witnesses' essentially incompatible accounts

(in effect, declining to credit some of the nonmovant's own testimony) and then string

together those portions of the record to form the story that we deem most helpful to

the nonmovant.7 Instead, when conflicts arise between the facts evidenced by the

parties, we credit the nonmoving party's version. Our duty to read the record in the

nonmovant's favor stops short of not crediting the nonmovant's testimony in whole

7

Plaintiffs' counsel urge us to accept a mixed description of events. Plaintiffs specifically argue that

we should credit Officer Stephens's statement that Jordan in no way resisted or protested the strip search,

but that we should also believe Plaintiffs' depiction of the manner of the search, including the choke hold.

For summary judgment, we believe the evidence of the nonmovant (at least when, as here, the

nonmovant's testimony is not doubtlessly incredible and the movant seems competent to give testimony).

7

or part: the courts owe a nonmovant no duty to disbelieve his sworn testimony which

he chooses to submit for use in the case to be decided.

DISCUSSION

We mainly must decide two issues. Whether the strip searches performed on

Plaintiffs violated their rights under the United States Constitution and, if so, whether

that right—given the circumstances facing Officer Stephens—was already so clearly

established that every objectively reasonable officer would have known that

Defendant was violating federal law at the time. We conclude that the strip search

here violated two rights of Plaintiffs, both arising under the Fourth Amendment.

First, the strip searches—as a post-arrest criminal investigation—were unreasonable,

because they were not supported by a reasonable suspicion of the existence of drug

evidence. Second, even if some strip search might have been lawful, the manner in

which these strip searches were performed was also unreasonable as a matter of

federal law. In addition, we conclude that the right to be free altogether of a strip

search was, under the circumstances, not already clearly established at the time of the

incident, but that the Fourth Amendment itself provided, at the time, sufficient notice

that the manner of these particular searches was "unreasonable" in the constitutional

sense.

1. The Constitutional Violations.

The panel opinion in this case included these words: "Arrestees who are to be

detained in the general jail population can constitutionally be subjected to a strip

search only if the search is supported by reasonable suspicion that such a search will

8

reveal weapons or contraband." Evans v. City of Zebulon, 351 F.3d 485, 490 (11th

Cir.2003) vacated by Evans v. City of Zebulon, 364 F.3d 1298 (11th Cir.2004). And

these words doubtlessly contributed to causing some judges to vote for en banc

rehearing.

Most of us are uncertain that jailers are required to have a reasonable suspicion

of weapons or contraband before strip searching—for security and safety

purposes—arrestees bound for the general jail population. For background, see

Cuesta v. Sch. Bd. of Miami-Dade County, 285 F.3d 962, 969 n. 6 (11th Cir.2002)

(strip search policy at jail); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001)

(same); Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir.2000) (same) (solitary

confinement). Never has the Supreme Court imposed such a requirement. See Bell

v. Wolfish, 441 U.S. 520, 559-60, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1979)

(rejecting claim that strip search policy at a federal jail for mostly pretrial detainees

violated the Fourth Amendment per se); United States v. Edwards, 415 U.S. 800, 808

n. 9, 94 S.Ct. 1234, 1239 n. 9, 39 L.Ed.2d 771 (1974) (reserving whether "custodial

searches incident to incarceration" might violate the Constitution in either "number

or ... manner of perpetration").

But, on reflection, this case provides no opportunity to decide the question of

when jailers—for security and safety purposes—may lawfully conduct strip searches

of persons about to become inmates in the general jail population. This case raises

no questions about the necessities of jail administration. Cf. Bell, 441 U.S. at 559-61,

99 S.Ct. at 1884-86. This case involves a different kind of search altogether: a

9

post-arrest investigatory strip search by the police looking for evidence (and not

weapons). Officer Stephens—who was not a jailer—testified (without contradiction

from others) that he strip-searched Plaintiffs because he (as the arresting officer)

believed them to be in possession of illegal drugs: the search was part of a criminal

investigation looking for evidence.

Never has the Supreme Court explicitly addressed the standard applied to

determine if a post-arrest investigatory strip search (away from the complicated

context of the nation's borders) violates the Fourth Amendment. Several cases

provide guidance, including Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108

L.Ed.2d 276 (1990); Bell, 441 U.S. at 520, 99 S.Ct. at 1861; Edwards, 415 U.S. at

800, 94 S.Ct. at 1234; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38

L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38

L.Ed.2d 456 (1973).

Bell, 441 U.S. at 560, 99 S.Ct. at 1885, 60 L.Ed.2d 447, does involve strip

searches. Bell concluded that such searches, of inmates in a jail for security purposes,

were permissible without probable cause; but it does not address what standard is

necessary for investigative searches outside Bell's jail security context.

When we balance the need for investigative strip searches for evidence that

might be hidden on the arrestee's body against the intrusiveness inherent in a strip

search, we believe Buie, 494 U.S. at 325, 110 S.Ct. at 1093, provides the analytical

framework that, at a minimum, would apply to strip searches for evidence. There, the

Court addressed a post-arrest protective sweep search of the arrestee's house. The

10

Court relied, in part, on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968) (addressing pat down searches of persons). Id., 494 U.S. at 331, 110 S.Ct. at

1097. Buie concluded that searches of property incident to arrest must be justified by

"articulable facts which, taken together with the rational inferences from those facts,

would warrant a reasonably prudent officer in believing" the search was necessary.

494 U.S. at 334, 110 S.Ct. at 1098. Put differently, we are confident that an officer

must have at least a reasonable suspicion that the strip search is necessary for

evidentiary reasons.8 Perhaps the actual standard is higher than reasonable suspicion,

especially where, as here, the search includes touching genitalia and penetrating

anuses. But because Officer Stephens—in the light of the supposed facts—did not

meet even the minimum possible standard of reasonable suspicion, we need not

decide if the actual standard is something even higher to decide whether Officer

Stephens failed to comply with the Constitution.9

Whether an officer has a reasonable suspicion is an objective question viewed

from the standpoint of a reasonable police officer at the scene. Ornelas v. United

States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996). It is

based on the totality of the circumstances, Garrett v. Athens-Clarke County, 378 F.3d

8

We stress that we are not deciding that this standard applies to strip searches for other purposes,

such as, searches conducted by jailers on arrestees bound for a jail's general population as part of a safety

or security routine of the jail. In this case, we are also not dealing with a search for weapons that might

pose a threat to the safety of law officers or others.

9

By the way, we note that Officer Stephens testified that he believed the legal standard needed for the

search was that of reasonable suspicion. Of course, Officer Stephens's subjective intentions and beliefs

in conducting the strip search are immaterial to the Fourth Amendment analysis. See Graham v. Connor,

490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Ulterior motives will not make an

otherwise lawful search unlawful.

11

1274, 1279 (11th Cir.2004), and is a question of law to be reviewed de novo.

Ornelas, 517 U.S. at 696-97, 116 S.Ct. at 1662.

Officer Stephens contends that Plaintiffs' nervousness, their story about being

lost, and their traveling in a rental car established reasonable suspicion of drugs

capable of justifying the search. After the events underlying this case had occurred,

we rejected an analogous argument in United States v. Boyce, 351 F.3d 1102, 1109

(11th Cir.2003), when the government attempted to use similar facts to provide law

enforcement officers with a reasonable suspicion for a prolonged traffic stop to search

for drugs. In the case now before us, Plaintiffs were arrested not for drugs, but for

DUI refusal and an outstanding arrest warrant (for an unspecified offense).

Nevertheless, even if the adjuncts of this stop and arrest might have initially

supported a reasonable suspicion of drugs, the strength of that suspicion was

undermined by other events before the strip search got started.

Officer Stephens searched Plaintiffs' car for over ten minutes, and taking the

facts most favorable to Plaintiffs, he found nothing about drugs. In addition,

Stephens searched the area surrounding the car and found nothing about drugs.

Furthermore, Plaintiffs testified that Stephens had checked their pockets and twice

patted down each of them before he strip-searched them in the jail. These searches

also revealed nothing. This lack of revealed evidence undermines the reasonableness

of Officer Stephens's belief that Plaintiffs possessed drugs. See Brent v. Ashley, 247

F.3d 1294, 1302 (11th Cir.2001) (addressing strip search by customs agents).

Moreover, Stephens did not observe Plaintiffs attempting to hide anything on their

12

person. See Kraushaar v. Flanigan, 45 F.3d 1040, 1046 (7th Cir.1995) (addressing

strip search at jail). Thus, we decide, bearing all the circumstances in mind, that

Officer Stephens violated Plaintiffs' right to be free from an unreasonable search

when he performed an investigatory strip search for drugs: he was without the

necessary reasonable suspicion that Plaintiffs (arrested on other charges) had

drugs—the asserted ground for the searches—on their person.10

We also conclude the manner in which Officer Stephens conducted the strip

search violated Plaintiffs' constitutional rights. Though not directly applicable to this

case, Bell acknowledged that even correctional officers in a jail cannot properly

conduct strip searches of incarcerated inmates in "an abusive fashion." 441 U.S. at

560, 99 S.Ct. at 1885 (internal citations omitted). Abuse cannot be condoned. While

searches need not be delicately conducted in the least intrusive manner, they must be

conducted in a reasonable manner.

Viewing the facts in their totality and taking the facts most favorable to

Plaintiffs' version, we conclude that Stephens conducted these strip searches in an

unconstitutional manner. Plaintiffs were taken to and searched in an abnormal place

(thus, capable of exciting more fear): a broom closet or supply room, not a dedicated

search cell, medical examination room, or even a bathroom. See Justice v. Peachtree

City, 961 F.2d 188, 193 (11th Cir.1992) (approving of private room); Skurstenis v.

Jones, 236 F.3d at 678, 682 (11th Cir.2000) (bathroom). Little respect for privacy

10

Officer Stephens acknowledged that he did not suspect Plaintiffs had weapons in their possession.

This view was the objectively reasonable one. At his deposition, Stephens agreed that whatever

reasonable suspicion he had, it was for drugs and "never for weapons."

13

was observed. Each Plaintiff was forced to disrobe, ridiculed, and penetrated by an

object in front of the other. See Justice, 961 F.2d at 193 (noting that arrestee and

officers were the only people in room).

The physical aspects of the searches are also disturbing. Unnecessary force

was used. Evans was thrown into Jordan, causing both men to collapse. As Jordan

tried to stand back up, Officer Stephens hit him with a baton-like object. It matters

that a body cavity search was undertaken. In addition, while conducting the search,

Stephens inserted the same baton or club—without intervening sanitation—in each

Plaintiffs' anus and used the same baton or club to lift each man's testicles.11 Apart

from other issues, this last practice is highly unsanitary. See Bonitz v. Fair, 804 F.2d

164, 173 (1st Cir.1986) (acknowledging non-hygienic manner of search) overruled

on other grounds by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir.1998), overruled

by Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

In considering the totality of the circumstances, we also consider Officer

Stephens's language. Brown v. City of Hialeah, 30 F.3d 1433, 1436 (11th Cir.1994).

See also Bell, 441 U.S. at 560, 99 S.Ct. at 1885 (citing Levi, 439 F.Supp. at 147).

From the time Plaintiffs were secured in the patrol car until the end of the search,

Stephens used threatening and racist language.12 We accept that such language has

11

Today, we do not say that body cavity searches that penetrate orifices are per se unconstitutional.

See, e.g., Isby v. Duckworth, 175 F.3d 1020 (7th Cir.1999) (unpublished).

12

In the patrol car, Officer Stephens said that he was "judge and jury" in Zebulon and that he would

decide whether Plaintiffs could make a phone call from the jail. He also told Plaintiffs that he would

"send you niggers away for a long time." Once in the room where the strip search occurred, Stephens

called Evans a smart aleck and a smart ass. He told Jordan that he didn't like "you boys in my town. I

don't want niggers here anyway." Stephens told another officer allegedly in the room that Evans and

Jordan made "my jail cell smell[ ] like [Plaintiffs]," and that he would send Plaintiffs to prison for the

14

an impact on people and counts towards the unreasonableness of the manner of the

searches.

We do not imply that words alone can make the manner of an otherwise

properly conducted search unconstitutional under the Fourth Amendment. But in this

case, the totality of the circumstances—for example, the physical force, anal

penetration, unsanitariness of the process, terrifying language, and lack of

privacy—collectively establish a constitutional violation, especially when the search

was being made in the absence of exigent circumstances requiring the kind of

immediate action that might make otherwise questionable police conduct, at least

arguably, reasonable.

2. Qualified Immunity

Qualified immunity is an affirmative defense available to public officers acting

within the scope of their discretionary authority. Harbert Int'l Inc. v. James, 157 F.3d

1271, 1281 (11th Cir.1998).13 It shields public officers from liability so long as the

transgressed right, given the circumstances, was not already clearly established, "that

is 'whether it would be clear to a reasonable officer that his conduct was unlawful in

rest of their lives. While he penetrated Plaintiffs' anuses with the baton, he said that Plaintiffs had "better

get used to this, this is how it is in the big house, this is where you [sic] getting ready to go. Somebody is

going to be butt fucking you for the next twenty years, all because you got a smart mouth."

We understand that law officers sometimes use harsh words as a kind of verbal "shock

and awe" tactic to deter arrestees from causing trouble that might cause violent injury to the

officer or someone else. We do not say this kind of practice is inherently unlawful or commonly

will help to cause accompanying searches or seizures to be unlawful. In this case, Plaintiffs

contend they were under police control and in custody and posed no threat to Officer Stephens

who, at the time of the search, was at a jail and in the company of another officer.

13

Plaintiffs argue that Stephens acted outside his authority when he strip searched Plaintiffs, because

the police chief verbally prohibited Stephens from performing strip searches. We disagree. Chief

Lummis's instruction was limited to roadside strip searches and did not address other strip searches.

15

the situation he confronted.' " Groh v. Ramirez, 540 U.S. 551, 563, 124 S.Ct. 1284,

1293, 157 L.Ed.2d 1068 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 202, 121

S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001)). The applicable law is clearly established

if the " 'preexisting law dictates, that is, truly compel[s],' the conclusion for all

reasonable, similarly situated public officials that what Defendant was doing violated

Plaintiffs' federal rights in the circumstances." Marsh v. Butler County, 268 F.3d

1014, 1031 (11th Cir.2001) (en banc) (citation omitted). In rare circumstances, a

"right may be so clear from the text of the Constitution or federal statute that no prior

decision is necessary to give clear notice of it to an official." Rowe v. Ft. Lauderdale,

279 F.3d 1271, 1280 n. 10 (11th Cir.2002) (citation omitted). In such circumstances,

the violation is obvious.

A post-arrest investigatory strip search did not obviously violate the Fourth

Amendment on its face in 1999. In addition, in 1999, no applicable cases provided

a police officer with fair notice that he must have, at least, a reasonable suspicion to

conduct a post-arrest investigatory strip search of an adult and with fair notice that

the facts before Officer Stephens were insufficient to make his suspicion reasonable

for the search.14 The law was not settled for what standard applied to post-arrest

investigatory strip searches, and Supreme Court precedent was very deferential to

post-arrest investigations. See, e.g., United States v. Edwards, 415 U.S. 800, 807-09,

94 S.Ct. 1234, 1239-40, 39 L.Ed.2d 771 (1974); Gustafson v. Florida, 414 U.S. 260,

14

When case law is needed, only cases from the Supreme Court, our Circuit or the highest court of

the pertinent state clearly establish the law in the Circuit for qualified immunity analysis. Marsh, 268

F.3d at 1033 n. 10.

16

265-66, 94 S.Ct. 488, 491-92, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414

U.S. 218, 235-36, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). Justice v. Peachtree

City, 961 F.2d 188, 192-93 (11th Cir.1992), could not squarely govern this case: it

addressed a strip search of a juvenile arrested for minor offenses (loitering and

truancy), and it acknowledged that unique concerns arise with strip searching

youngsters. See generally, Brosseau v. Haugen, --- U.S. ----, 125 S.Ct. 596, 160

L.Ed.2d 583 (2004). And United States v. Boyce, 351 F.3d 1102, 1109 (11th

Cir.2003), was decided four years after the incident in question. So, Officer Stephens

is protected by qualified immunity insofar as the claim is one for conducting a strip

search at all.

Qualified immunity, however, does not shield Stephens from Plaintiffs'

separate claim that the manner of the strip search violated their rights under the

Fourth Amendment. No preexisting case law established this violation or made it

obviously clear. Justice and Bell were the only applicable cases to address strip

searches, and they could not squarely govern this case. Both were materially different

from this case, and both upheld strip searches.

But the text of the Fourth Amendment prohibits "unreasonable" searches.

Seldom does a general standard such as "to act reasonably" put officers on notice that

certain conduct will violate federal law given the precise circumstances before them:

Fourth Amendment law is intensely fact specific. But we conclude the supposed facts

of this case take the manner of the searches well beyond the "hazy border" that

sometimes separates lawful conduct from unlawful conduct. See generally, Priester

17

v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.2000). The violation was

obvious.

Every objectively reasonable officer would have known that, when conducting

a strip search, it is unreasonable to do so in the manner demonstrated by the sum of

the facts alleged by Plaintiffs. The totality of the facts alleged here made this

violation—on the day of the search—clear from the terms of the Constitution itself:

No objectively reasonable policeman could have believed that the degrading and

forceful manner of this strip search (especially in the light of the complete lack of

circumstances that might have called for immediate action to conduct a search

without the time for cool and calm thought about how to proceed) was "reasonable"

in the constitutional sense. Accordingly, the decision of the district court is affirmed

in part, reversed in part, and remanded.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

CARNES, Circuit Judge, concurring specially, in which DUBINA and HULL,

Circuit Judges, join:

I concur in all of the Court's opinion but write separately for two reasons. One

is to explicate a holding of the Court, and the other is to offer my views on an issue

that was briefed and argued but which the Court does not reach.

I.

In his deposition one of the plaintiffs, Peter Evans, made a number of

statements that supported his claims but one statement that was not favorable to his

own case. Another witness offered testimony on that specific point that was more

favorable to the plaintiffs. The Court correctly holds that for summary judgment

18

purposes we accept a non-movant's own testimony warts and all, instead of snipping

from that testimony the parts that are less favorable than what some other witness

says. There is good reason that, as the Court aptly puts it, "[o]ur duty to read the

record in the nonmovant's favor stops short of not crediting the nonmovant's

testimony in whole or part: the courts owe a nonmovant no duty to disbelieve his

sworn testimony which he chooses to submit for use in the case to be decided." Ante

at 2217.

The good reason is that, absent some extraordinary circumstance, no reasonable

jury would believe that a party was lying when he said something harmful to his own

case. Reasonable juries know that is not how human nature, influenced by

self-interest, works. And when we decide whether summary judgment is warranted,

we view the evidence in the non-movant's favor, but only to the extent that it would

be reasonable for a jury to resolve the factual issues that way. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (to

defeat summary judgment "there must be evidence on which the jury could

reasonably find for the plaintiff"); Graham v. State Farm Mut. Ins. Co., 193 F.3d

1274, 1282 (11th Cir.1999) ("[T]here must be sufficient evidence on which the jury

could reasonably find for the plaintiff ...."); id. ("The nonmovant need not be given

the benefit of every inference but only of every reasonable inference." (language from

the district court's order, attached as Appendix A and adopted by the Court)); Brown

v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988) ("The summary

judgment standard requires that we resolve all reasonable doubts in favor of the

19

non-moving party, but it does not require us to resolve all doubts in such a manner."

(quotation and ellipsis omitted)).

II.

One of the issues we had the parties brief and orally argue is: "Whether

arrestees who are to be detained in the general jail population can constitutionally be

subjected to a strip search only if the search is supported by reasonable suspicion that

such a search will reveal weapons or contraband." We also received a number of

amicus briefs on that issue, some of which were helpful. The opinion for the Court

notes that: "Most of us are uncertain that jailers are required to have a reasonable

suspicion of weapons or contraband before strip searching—for security and safety

purposes—arrestees bound for the general jail population." Ante at 2218.

Nonetheless, the Court properly determines that this is not the case in which to decide

that issue. It is not, because the strip searches in this case were undertaken by law

enforcement officers looking for evidence of a crime that had been committed,

instead of by the officials at the county jail acting for general security reasons.

Even though the issue cannot be decided in this case, I offer my present views

on it for whatever they may be worth. This expression comes with the realization that

"dicta in our opinions is not binding on anyone for any purpose," but also with the

hope that this will be one of those occasions in which dicta serves a useful purpose.

See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1314-15 (11th Cir.1998)

(Carnes, J., concurring specially).

A.

20

My present view is that reasonable suspicion is not necessary for a strip search

of an arrestee who is to be detained in the general jail population, if that search is

conducted pursuant to a generally applicable, reasonable jail policy designed to

promote safety and security by guarding against the smuggling of weapons and other

contraband into a detention facility. This view is contrary to the current circuit law

on the subject, at least insofar as misdemeanor arrestees are concerned. In Wilson v.

Jones, 251 F.3d 1340 (11th Cir.2001), involving the strip search of a misdemeanor

arrestee, a panel of this Court held that the county's strip search policy violated the

Fourth Amendment because it did not require reasonable suspicion. Id. at 1342-43;

see also Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir.2000) (upholding a strip

search of a misdemeanor arrestee because there was reasonable suspicion, but stating

in dicta that a policy of strip searching all detainees in the absence of reasonable

suspicion does not comport with the Fourth Amendment's requirements).

Our circuit law is the same as that of every other circuit to address the issue

insofar as those detained on non-felony charges are concerned. Each of the other

circuits to speak on the matter has concluded that a person arrested on a misdemeanor

charge may not be strip searched upon being placed in the general jail population

unless there is reasonable suspicion to believe that he is concealing a weapon or other

contraband. Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Watt v. City of

Richardson Police Dep't, 849 F.2d 195, 198-99 (5th Cir.1988); Weber v. Dell, 804

F.2d 796, 802 (2d Cir.1986); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984),

overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th

21

Cir.1999); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983);

Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981). A strong argument can be

made that all of those decisions, and our own decision in Wilson, are wrong.1

The problem is that all of these decisions seem to read Bell v. Wolfish, 441 U.S.

520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), as imposing a requirement of reasonable

suspicion for detention facility strip searches. As a majority of the present en banc

Court notes, albeit in dicta, neither Bell nor any other Supreme Court decision

imposes such a requirement. Ante at 2218 ("Never has the Supreme Court imposed

such a requirement."). So, all of the decisions that require reasonable suspicion seem

to be based on a false premise.

In misinterpreting the Bell decision, we and other courts have focused on a

single sentence of the opinion in that case to the exclusion of virtually everything else

it says. In that one sentence the Supreme Court said: "But we deal here with the

question whether visual body-cavity inspections as contemplated by the [facility's]

1

Some of the other circuits, at least, recognize that reasonable suspicion is not required where the

arrestee being detained is charged with a felony or a violent crime. See, e.g., Masters, 872 F.2d at 1255

(distinguishing Dufrin v. Spreen, 712 F.2d 1084 (6th Cir.1983), where the court upheld a strip search

policy for a pretrial detainee charged with a felony without reasonable suspicion or probable cause, from

this case where the § 1983 plaintiff was arrested on a warrant for failure to appear in court); Mary Beth

G., 723 F.2d at 1272 (distinguishing the constitutionality of strip searches where there is no probable

cause or reasonable suspicion for pretrial detainees held on "inherently dangerous" crimes from

unconstitutionality of strip searches of "minor offenders").

Part of this Court's opinion in Wilson, by contrast, might be read to apply to those

charged with felonies as well as those charged with only misdemeanors, see Wilson, 251 F.3d at

1342-43, although that probably would be dicta since the facts of the case did not present the

issue as it applies to felony-charged detainees, see Watts v. BellSouth Telecomm., Inc., 316 F.3d

1203, 1207 (11th Cir.2003) ("Whatever their opinions say, judicial decisions cannot make law

beyond the facts of the cases in which those decisions are announced."); United States v.

Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (per curiam) ("The holdings of a prior decision

can reach only as far as the facts and circumstances presented to the court in the case which

produced that decision." (citations and internal marks omitted)).

22

rules can ever be conducted on less than probable cause." Bell, 441 U.S. at 560, 99

S.Ct. at 1885 (emphasis omitted). The Court answered "yes," but neither the question

nor the answer compels the conclusion that "less than probable cause" means

"reasonable suspicion." The absence of reasonable suspicion is also "less than

probable cause."

The Supreme Court simply did not say in Bell that before a visual body-cavity

inspection can be performed on an arrestee who is being put into a detention facility

there must be reasonable suspicion to believe that detainee is carrying a weapon or

other contraband. To infer that requirement from one sentence of the Bell opinion

puts more weight on the sentence than it will bear. It also ignores the rest of the

majority's opinion as well as the interpretation of that opinion put forward by Justice

Powell in his dissenting opinion, id. at 563, 99 S.Ct. at 1886, an interpretation which

went unchallenged by the majority.

Bell involved a class action suit brought by pretrial detainees being held at the

federal Metropolitan Correctional Center in New York City. The MCC required all

inmates, including pretrial detainees, "convicted inmates who are awaiting sentencing

or transportation to federal prison," "convicted prisoners who have been lodged at the

facility under writs of habeas corpus ... issued to ensure their presence at upcoming

trials, witnesses in protective custody, and persons incarcerated for contempt," id. at

524, 99 S.Ct. at 1866, "to expose their body cavities for visual inspection as a part of

a strip search conducted after every contact visit

23

with a person from outside the institution," id. at 558, 99 S.Ct. at 1884.2

The pretrial detainees alleged in their complaint that the MCC's strip search

policy violated their Fourth Amendment right to be free from unreasonable searches.3

The district court agreed, and enjoined MCC from conducting the searches absent

individualized probable cause to believe that the detainee was concealing a weapon

or other contraband. Id. The Second Circuit affirmed. Id. The question the Supreme

Court had before it was this: "whether visual body-cavity inspections as

contemplated by the MCC rules can ever be conducted on less than probable cause."

Id. at 560, 99 S.Ct. at 1885. The Supreme Court answered "yes," after "[b]alancing

the significant and legitimate security interests of the institution against the privacy

interests of the inmates." Id.; see also id. at 559, 99 S.Ct. at 1884.

In striking that balance, the Court weighed "the privacy interests of the

inmates," id. at 560, 99 S.Ct. at 1885—"the scope of the particular intrusion, the

manner in which it is conducted, ... and the place in which it is conducted," id. at 559,

99 S.Ct. at 1884—against "the significant and legitimate security interests of the

institution," id. at 560, 99 S.Ct. at 1885. In the end, the Bell Court concluded that

those security interests of the detention facility outweighed the privacy interests of

the pretrial detainees. Id.

2

The Supreme Court described the MCC strip search as follows: "If the inmate is a male, he must lift

his genitals and bend over to spread his buttocks for visual inspection. The vaginal and anal cavities of

female inmates also are visually inspected. The inmate is not touched by security personal [sic] at any

time during the visual search procedure." Id. at 558 n. 39, 99 S.Ct. at 1884 n. 39.

3

None of the decisions in this area, including our own, seem to distinguish between strip searches in

general and "visual body-cavity inspections" as the procedure was described in Bell. I don't either.

24

While the Court did "not underestimate the degree to which these searches may

invade the personal privacy of inmates" or ignore the fact "that on occasion a security

guard may conduct the search in an abusive fashion," id., there was a far more

compelling interest on the other side of the scale. As the Court explained: "A

detention facility is a unique place fraught with serious security dangers. Smuggling

of money, drugs, weapons, and other contraband is all too common an occurrence."

Id. at 559, 99 S.Ct. at 1884. The Court deemed that a weighty consideration even

though the record indicated only one instance in three years "where an MCC inmate

was discovered attempting to smuggle contraband into the institution on his person."

Id. at 559, 99 S.Ct. at 1885. The Court believed that fact "may be more a testament

to the effectiveness of this search technique as a deterrent than to any lack of interest

on the part of the inmates to secrete and import such items when the opportunity

arises." Id.

The Supreme Court in Bell took a categorical approach, deciding whether the

detention facility's strip search policy generally was reasonable under the Fourth

Amendment, not whether it was reasonable in an individual case. See id. at 560, 99

S.Ct. at 1885; see also Hudson v. Palmer, 468 U.S. 517, 538, 104 S.Ct. 3194, 3206,

82 L.Ed.2d 393 (1984) (O'Connor, J., concurring) (citing Bell for the proposition that

"[i]n some contexts, ... the Court has rejected the case-by-case approach to the

'reasonableness' inquiry in favor of an approach that determines the reasonableness

of contested practices in a categorical fashion").

The most overlooked part of the Bell decision is Justice Powell's dissent. He

25

dissented for one and only one reason, which is that the majority did not require

reasonable suspicion for conducting the strip searches in that case. His concise

dissenting opinion states in its entirety:

I join the opinion of the Court except the discussion and holding with

respect to body-cavity searches. In view of the serious intrusion on one's

privacy occasioned by such a search, I think at least some level of cause, such

as a reasonable suspicion, should be required to justify the anal and genital

searches described in this case. I therefore dissent on this issue.

Bell, 441 U.S. at 563, 99 S.Ct. at 1886 (Powell, J., concurring in part and dissenting

in part). The "searches described in this case" are the strip searches performed on all

MCC pretrial detainees, not just those charged with felonies. The detainees who were

searched included those charged with misdemeanors or violations, and even those

charged with no wrong doing at all but who were being held as witnesses in

protective custody. See id. at 524, 99 S.Ct. at 1866.

Justice Powell's dissenting opinion is evidence that we and other circuits have

misread the Bell majority opinion as requiring reasonable suspicion before detainees

can be strip searched. If the Bell majority had held what we and other circuits say it

did, there would have been no dissenting opinion from Justice Powell. Granted, it

can be risky to place too much reliance on dissenting opinions because they

sometimes follow a Chicken Little or doomsday approach, exaggerating the nature

and extent of the majority opinion in order to assail it. Justice Powell's dissent in Bell

cannot reasonably be viewed as that type of dissent, however, because its only

disagreement with the majority is about the one specific point it raises. If the majority

had not permitted strip searches of pretrial detainees without reasonable suspicion,

26

Justice Powell would not have dissented at all.

The point is that, from his perspective inside the Court, Justice Powell had a

better sense of the majority's holding in Bell than any circuit court of appeals could,

and he understood the holding to permit strip searches without reasonable suspicion.

Not only that, but if the majority had not intended to permit strip searches of pretrial

detainees without reasonable suspicion, it would have been a simple matter to note

that in the opinion in answer to Justice Powell's pointed statement that the Court was

allowing them.

The courts, including our own, that have read a requirement of reasonable

suspicion into the Bell decision have misinterpreted a sentence of that opinion. They

also have ignored Justice Powell's dissenting opinion and the majority's failure to

deny the sole point of that dissent. Interpreting the Bell decision as not requiring

reasonable suspicion is a fairer reading than interpreting the decision to require it.

B.

The panel in Wilson appears to have interpreted Bell to require reasonable

suspicion, at least for strip searches involving non-felony detainees, but it seems to

me that under Bell there is a three-step analysis for deciding whether a detention

facility's policy is constitutional. The first step is to determine whether the detention

facility has a strip search policy permitting such searches without reasonable

suspicion. Bell, 441 U.S. at 558, 99 S.Ct. at 1884. Absent such a policy, the

detention facility does need individualized reasonable suspicion to conduct a strip

search on a detainee. See Justice v. City of Peachtree City, 961 F.2d 188, 193 (11th

27

Cir.1992).

If the detention facility does have a policy permitting strip searches without

reasonable suspicion, the second step of the Bell analysis is to balance the

institutional interests of the facility against the privacy interests of the detainee to

determine whether the policy is reasonable under the Fourth Amendment. Bell, 441

U.S. at 560, 99 S.Ct. at 1885. The Supreme Court held in Bell that MCC's visual

body-cavity search policy was "reasonable" under the Fourth Amendment even

though there was "only one instance where an MCC inmate was discovered

attempting to smuggle contraband into the institution on his person." Id. at 559, 99

S.Ct. at 1885. The Court did so based on testimony from "[c]orrections officials" that

"visual cavity searches were necessary not only to discover but also to deter the

smuggling of weapons, drugs, and other contraband into the institution." Id. at 558,

99 S.Ct. at 1884.

If the detention facility's security interests outweigh the privacy interests of the

detainee, the third step is to determine whether the strip search was "conducted in a

reasonable manner," which means in compliance with the facility's reasonable policy.

Id. at 560, 99 S.Ct. at 1885.

C.

Usually, it will be simple enough to determine whether the detention facility

has a strip search policy (the first step), and whether the policy was followed in a

particular case (the third step). Most cases will turn on the second step of the

analysis. Our own Wilson decision did, and so did all of the decisions of other

28

circuits that have already been cited. For that reason, the second step of the analysis

merits closer attention.

Detention facilities are "unique place[s] fraught with serious security dangers."

Id. at 559, 99 S.Ct. at 1884. Many of those who are being detained have been

convicted of, or charged with, committing violent felonies. Even as to the other

detainees, a significant percentage have "prior felony criminal histories or gang

affiliations, which might make them greater security risks than the charges pending

against them indicate[ ]." Dodge v. County of Orange, 282 F.Supp.2d 41, 48

(S.D.N.Y.2003), rev'd on other grounds 103 Fed.Appx. 688 (2d Cir.2004). That is

true of those arrested for misdemeanors as well as those arrested on felony charges.

The gang affiliation of inmates, in particular, is a "serious security risk." Id.

At the county jail involved in the Dodge case there were at least fifty gang members

being held on any given day. Id. Not surprisingly, "[g]ang members are often more

violent, dangerous, and manipulative than other inmates, regardless of the nature of

the charges against them. They are also more likely than other inmates to attempt to

coerce family members or to coerce, cajole, or intimidate lesser violators into

smuggling contraband into the facility." Id. (citations omitted).

Contraband poses the greatest security risk for officials at detention facilities.

As one expert explained, "one of the primary objectives of any correctional facility

must be to prevent the introduction of 'contraband' into a correctional facility due to

the dangers that contraband presents in a correctional setting." Id. at 46 (citing the

testimony of George Camp, a leading corrections facility expert and a consultant to

29

forty-eight states on the administration of detention facilities). "Contraband" is

"anything that an inmate is not permitted to have in a correctional facility," including

obvious things, like weapons, ammunition, or drugs, and "lesser" items, like money,

cigarettes, or "excess prison issue items" (e.g. clothing and linens). Id. at 46-47. Of

course, weapons and objects that can be made into weapons pose the most direct and

obvious threat to security within a detention facility, and within the courthouses to

which the detainees are taken for hearings or trials.

Non-weapon contraband is also bad because it "can be used by inmates to

barter, and thus be held over the heads of other inmates." Id. at 47. Bartering "tends

to disrupt prison operations by allowing certain inmates, or groups of inmates, to

exercise authority in competition with correctional staff," which in turn "increase[s]

the level of violence and endanger[s] the health, safety, and well-being of inmates,

staff, and civilians in [the] correctional facility."4 Id.

Of course, detention facility officials have a legal obligation to ensure, to the

extent reasonably feasible, that their facilities are safe not only for those detained but

also for those who work there and those who visit. As the Supreme Court has put it,

"central to all other corrections goals is the institutional consideration of internal

security within the corrections facilities themselves." Pell v. Procunier, 417 U.S.

817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974), quoted in Bell, 441 U.S. at

4

A second reason for strip searches is that it allows officials to identify gang members, who often

have tattoos or identifying marks on their bodies. Finding the gang members early puts the officials on

notice that these people are serious security risks and should be separated from the general population

where they can cause harm. Otherwise, all the detention facility has to go on is the crime for which the

individual is charged, which may not reflect the danger the person poses. Id. at 47-48.

30

546-47, 99 S.Ct. at 1878. It is for that reason the Supreme Court has held that "even

when an institutional restriction infringes a specific constitutional guarantee," we

must evaluate that practice in light of this central objective. Bell, 441 U.S. at 547, 99

S.Ct. at 1878. "Prison administrators therefore should be accorded wide-ranging

deference in the adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline and to maintain

institutional security." Id.

Those who run detention facilities are convinced that strip search policies are

essential to maintaining safety in their facilities. Experts agree that strip searches "are

the best way to maintain the security level necessary for keeping serious and

dangerous contraband out" of detention facilities. Dodge, 282 F.Supp.2d at 49. The

Supreme Court was convinced of the same thing in Bell, where it concluded that,

given the "serious security dangers" present in detention facilities, a policy of

conducting visual body-cavity searches on all inmates after any visit with a person

from the outside is a reasonable way to stop the "[s]muggling of money, drugs,

weapons, and other contraband" that erode the orderly and safe administration of the

facility. Bell, 441 U.S. at 559, 99 S.Ct. at 1884.

Affording considerable discretion to those who have the duty to run detention

facilities safely is not an abdication of the judiciary's responsibility to protect the

rights of incarcerated individuals. It is instead a recognition—what the Supreme

Court has called a "healthy sense of realism"—that "courts are ill equipped to deal

with the increasingly urgent problems of prison administration and reform."

31

Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224

(1974), quoted in Bell, 441 U.S. at 548 n. 30, 99 S.Ct. at 1879 n. 30. To have judges

second-guess detention facility officials about the need for procedures like strip

searches is also in tension with the principle that "the operation of our correctional

facilities is peculiarly the province of the Legislative and Executive Branches of our

Government, not the Judicial." Bell, 441 U.S. at 548, 99 S.Ct. at 1879.

For these reasons, a strong argument can be made that the second part of the

three-prong Bell analysis favors permitting detention facility administrators to adopt

a strip search policy that applies to all arrestees being admitted into the facility. If

there is such a policy (the first prong) and if it is not applied in an abusive way (the

third prong), there will be no Fourth Amendment violation.

D.

One other point is worth some discussion. In judging the constitutionality of

strip searches for detainees, some other circuits draw a distinction between whether

the person has been arrested on a felony charge or just for a misdemeanor. Our

circuit law is unclear about that. See ante at 2224 n. 1. In any event, I think a strong

argument can be made that such a distinction is without constitutional significance

and finds no support in the real world of detention.

While Masters v. Crouch, 872 F.2d 1248 (6th Cir.1989), Watt v. City of

Richardson Police Department, 849 F.2d 195 (5th Cir.1988), Weber v. Dell, 804 F.2d

796 (2d Cir.1986), Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), overruled on

other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999), Mary

32

Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983), and Logan v. Shealy, 660

F.2d 1007 (4th Cir.1981), vary in detail around the edges, the picture they paint is

essentially the same: The arrestee is charged with committing a misdemeanor or

some lesser violation and, while being admitted to the detention facility, she is

subjected to a strip search pursuant to the facility's policy. The plaintiff sues the

officials asserting that the search was unconstitutional because the guards did not

have any reasonable basis for believing that she was hiding contraband on her person.

See, e.g., Logan, 660 F.2d at 1009-11. In each cited case, the court of appeals holds

that because the plaintiffs were "minor offenders who were not inherently

dangerous," Mary Beth G., 723 F.2d at 1272, detention officials needed "reasonable

suspicion that the arrestee is concealing weapons or other contraband based on the

crime charged, the particular characteristics of the arrestee, and/or the circumstances

of the arrest," Weber, 804 F.2d at 802. Because reasonable suspicion was lacking in

each case, the search is held to violate the Fourth Amendment.

The Supreme Court made no distinction in Bell between detainees based on

whether they had been charged with misdemeanors or felonies. Instead, the policy

that the Court treated categorically, and upheld, provided that "[i]nmates at all Bureau

of Prison facilities, including the MCC, are required to expose their body cavities for

visual inspection as a part of a strip search conducted after every contact visit with

a person from outside the institution." Bell, 441 U.S. at 558, 99 S.Ct. at 1884.

Among the "[i]nmates at all Bureau of Prison facilities, including the MCC," were

detainees facing only misdemeanor charges, people incarcerated for contempt of

33

court, and witnesses in protective custody who had not been accused of doing

anything wrong. See id. at 524 & n. 3, 99 S.Ct. at 1866 & n. 3. The MCC was hardly

a facility where all of the detainees were "awaiting trial on serious federal charges,"

as some of the opinions of other circuits seem to indicate. It is on that basis that they

distinguish what they describe as the "exaggerated" need for strip searches at county

facilities from the "real" need at federal facilities. See, e.g., Mary Beth G., 723 F.2d

at 1272.5

The need for strip searches at county jails is not exaggerated. Employees,

visitors, and those who are themselves detained face a real threat of violence, and

administrators must be concerned on a daily basis with the smuggling of contraband

on the person of those accused of misdemeanors as well as those accused of felonies.

Dodge, 282 F.Supp.2d at 46-49. Even some of the circuits that have required

reasonable suspicion for searches of those arrested for misdemeanors concede that

there have been instances where contraband was smuggled into a jail by detainees

facing only misdemeanor or lesser charges. See, e.g., Giles, 746 F.2d at 617.

Then there is the fact that gang members commit misdemeanors as well as

felonies. In one county jail, for example, fifty percent of those being held on

"misdemeanor or lesser charges" were gang members. Dodge, 282 F.Supp.2d at 48

5

The facility involved in the Bell case was not some special sort of seething cauldron of criminality.

The Supreme Court described the facility this way: "MCC differs markedly from the familiar image of a

jail; there are no barred cells, dank, colorless corridors, or clanging steel gates. It was intended to

include the most advanced and innovative features of modern design of detention facilities." Bell, 441

U.S. at 525, 99 S.Ct. at 1866. In the three years MCC strip searched all inmates before the trial in Bell,

there was only one instance of smuggled contraband. Id. at 559, 99 S.Ct. at 1885. Yet, the Supreme

Court found that "serious security dangers" warranted the strip search policy at all federal detention

facilities, including MCC. Id. at 559, 99 S.Ct. at 1884-85.

34

(citing figures from 2002). "Gang members are often more violent, dangerous, and

manipulative than other inmates, regardless of the nature of the charges against

them." Id. Not only that, but "officials at a county jail ... usually know very little

about the new inmates they receive or the security risks they present at the time of

their arrival." Id. Moreover, some gang members "attempt to coerce family members

or to coerce, cajole, or intimidate lesser violators into smuggling contraband into the

facility." Id.

These reasons support the expert opinion that all of those who are to be

detained in the general population of a detention facility should be strip searched. See

id. at 49. The Supreme Court has instructed us that detention facility administrators

"should be accorded wide-ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve internal order and

discipline and to maintain institutional security." Bell, 441 U.S. at 547, 99 S.Ct. at

1878. It has also explained that "judicial deference is accorded not merely because

the administrator ordinarily will, as a matter of fact in a particular case, have a better

grasp of his domain than the reviewing judge, but also because the operation of our

correctional facilities is peculiarly the province of the Legislative and Executive

Branches of our Government, not the Judicial." Id. at 548, 99 S.Ct. at 1879 (citing

Martinez, 416 U.S. at 405, 94 S.Ct. at 1807). Decisions that carve out misdemeanor

arrestees for special treatment do not seem to afford those who run detention facilities

the "wide-ranging deference" the Supreme Court has mandated.

E.

35

To summarize, the en banc Court is correct to note that the Supreme Court has

never required reasonable suspicion for strip searches of arrestees bound for the

general jail population. Ante at 2218. The contrary reading of the Supreme Court's

Bell decision that led to the holding in Wilson v. Jones, 251 F.3d 1340 (11th

Cir.2001), is mistaken. When we have a case that squarely presents the issue for

review, we ought to take it en banc in order to reconsider our Wilson decision.

F.

Judge Barkett suggests that in the process of expressing in this opinion my

views, which are critical of the position she stated in the Wilson case, I have violated

Article III. Post at 2235 n.1. Her theory is that the statement of dicta in a judicial

opinion "intrudes upon the constitutional restraints on the jurisdiction of the federal

courts." Id. This novel theory apparently did not come to mind when she was writing

the Wilson opinion broadly enough to invalidate a detention search policy in its

entirety even though that case did not present the issue of whether the policy was

valid as applied to those arrested on felony charges. See Wilson, 251 F.3d at 1342-43.

The idea that dicta is unconstitutional also must not have come to her mind

when Judge Barkett was authoring the opinion of this Court in Aron v. United States,

291 F.3d 708 (11th Cir.2002). The facts in Aron were that the petitioner who sought

the benefit of equitable tolling had exercised due diligence before the enactment of

28 U.S.C. § 2255(4), which is the AEDPA's statute of limitations. Id. at 710.

Nonetheless, Judge Barkett purported to "hold" for the Court that "a petitioner's

failure to exercise due diligence before AEDPA was enacted cannot support a finding

36

that a petition fails to satisfy the timeliness requirement." Id. at 713. That was classic

dicta, as I pointed out in a concurring opinion in Aron. Id. at 716-18 (Carnes, J.,

concurring). It took this Court only two months to issue an opinion in another case,

whose facts did present the pre-AEDPA diligence issue, recognizing that statement

on the issue in Aron was dicta and declining for that reason to be bound by it. Drew

v. Dep't of Corrs., 297 F.3d 1278, 1290-92 n. 5 (11th Cir.2002).

To be fair, Judge Barkett is by no means the only member of this Court to sow

dicta in her opinions. Indeed, when one looks for it, dicta appears to be scattered

across the opinions of this Court like wildflowers in a spring meadow. A baker's

dozen examples should suffice to prove the point: United States v. Williams, 340

F.3d 1231, 1234-37 (11th Cir.2003) (stating that appellate courts are obliged to apply

a "due deference" standard of review to a sentencing judge's application of the

sentencing guidelines to the facts in a particular case, which was recognized as dicta

as it related to situations other than a challenge to the district court's grouping of a

defendant's offenses in United States v. Miranda, 348 F.3d 1322, 1330 n. 8 (11th

Cir.2003)); United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999) (stating

that "[w]e will only look beyond the plain language of a statute at extrinsic materials

to determine the congressional intent if[, among other things,] ... there is clear

evidence of contrary legislative intent," which was recognized as dicta in CBS Inc.

v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1227 (11th Cir.2001)); Babicz v. Sch.

Bd., 135 F.3d 1420, 1422 n. 10 (11th Cir.1998) (per curiam) (stating that

compensatory damages are not available under the Individuals with Disabilities

37

Education Act, which was recognized as dicta in Ortega v. Bibb County Sch. Dist.,

397 F.3d 1321, 1326 (11th Cir.2005)); GJR Invs., Inc. v. County of Escambia, 132

F.3d 1359, 1367 (11th Cir.1998) (stating that a heightened pleading standard applies

to all § 1983 actions, which was recognized as dicta in Swann v. S. Health Partners,

Inc., 388 F.3d 834, 838 (11th Cir.2004)); United States v. Carter, 110 F.3d 759, 761-

62 (11th Cir.1997) (per curiam) (stating that a sentencing judge must give reasons for

his ruling on the applicability of the 18 U.S.C. § 3553(a) factors, which was

recognized as dicta in United States v. Eggersdorf, 126 F.3d 1318, 1322 & n. 4 (11th

Cir.1997)); Grayson v. K Mart Corp., 79 F.3d 1086, 1100 (11th Cir.1996) (stating

that the pre-Civil Rights Act statutes of limitations apply to ADEA actions where the

challenged conduct occurred prior to the enactment of the Civil Rights Act, which

was recognized as dicta in Browning v. AT&T Paradyne, 120 F.3d 222, 225 n. 7 (11th

Cir.1997) (per curiam)); Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1186

(11th Cir.1994) (stating that "[a] finding of deliberate indifference necessarily

precludes a finding of qualified immunity," (quotation omitted) which was recognized

as dicta in Marsh v. Butler County, Ala., 268 F.3d 1014, 1030 n. 8 (11th Cir.2001));

Vernon v. FDIC, 981 F.2d 1230, 1233-34 (11th Cir.1993) (stating that the common

law D'Oench doctrine does not operate "to bar free standing tort claims that are not

related to a specific asset acquired by the FDIC," which was recognized as dicta in

both OPS Shopping Ctr., Inc. v. FDIC, 992 F.2d 306, 310 (11th Cir.1993), and

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 597 n. 7 (11th Cir.1995));

United States v. Harris, 990 F.2d 594, 597 (11th Cir.1993) (stating that "it is

38

inappropriate to imprison or extend the term of imprisonment of a federal defendant

for the purpose of providing him with rehabilitative treatment," which was recognized

as dicta in United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (per

curiam)); United States v. Nixon, 918 F.2d 895, 903 n. 6 (11th Cir.1990) (stating that

anticipatory search warrants are only appropriate "where the contraband is on a 'sure

course' to a known destination," which was recognized as dicta in United States v.

Santa, 236 F.3d 662, 672 n. 14 (11th Cir.2000)); Wilkinson ex rel. Wilkinson v.

Bowen, 847 F.2d 660, 662 (11th Cir.1987) (per curiam) (stating in a Social Security

case that "[i]n order to meet a listing, the claimant must (1) have a diagnosed

condition that is included in the listings and (2) provide objective medical reports

documenting that this condition meets the specific criteria of the applicable listing

and the duration requirement," which was recognized as dicta in Shinn ex rel. Shinn

v. Comm'r of Soc. Sec., 391 F.3d 1276, 1285 (11th Cir.2004)); Self v. Great Lakes

Dredge & Dock Co., 832 F.2d 1540, 1547 (11th Cir.1987) (stating a rule for

contribution and settlement bar in maritime actions for personal injuries, which was

recognized as dicta in Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller,

957 F.2d 1575, 1578 (11th Cir.1992)); and Fairley v. Patterson, 493 F.2d 598, 603-

04 (5th Cir.1974) (stating that voters in a district that was less over-represented than

other districts had standing to sue, which was recognized as dicta in Wright v.

Dougherty County, Ga., 358 F.3d 1352, 1356 (11th Cir.2004)).

If our own opinions did not demonstrate that the use of dicta is constitutionally

permissible, proof positive can be found in the fact that the ultimate arbiter of Article

39

III and all other constitutional provisions not infrequently sows its own opinions with

dicta. There are many examples, but an even ten will do: Mertens v. Hewitt Assocs.,

508 U.S. 248, 256, 113 S.Ct. 2063, 2069, 124 L.Ed.2d 161 (1993) (stating that

restitution is a category of relief that is typically available in equity, which was

recognized as dicta in Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204,

215, 122 S.Ct. 708, 715, 151 L.Ed.2d 635 (2002)); United States v. James, 478 U.S.

597, 605, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483 (1986) (stating that "[i]t is thus clear

from [33 U.S.C.] § 702c's plain language that the terms 'flood' and 'flood waters'

apply to all waters contained in or carried through a federal flood control project for

purposes of or related to flood control," which was recognized as dicta and disavowed

in Cent. Green Co. v. United States, 531 U.S. 425, 430-31, 121 S.Ct. 1005, 1008-09,

148 L.Ed.2d 919 (2001)); Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct.

3138, 3150, 82 L.Ed.2d 317 (1984) (stating that, in the context of a Terry stop, a

detainee is not obliged to respond to questions, which was recognized as dicta in

Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 124 S.Ct. 2451, 2459, 159 L.Ed.2d

292 (2004)); Michigan v. Long, 463 U.S. 1032, 1036 n. 1, 103 S.Ct. 3469, 3473 n.

1, 77 L.Ed.2d 1201 (1983) (stating, in the context of a situation where the defendant

exited his vehicle before the officers initiated contact, that the officers could have

permissibly searched the defendant's vehicle had they arrested him, which was

recognized as dicta in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 2131,

158 L.Ed.2d 905 (2004)); Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 747, 103

S.Ct. 2161, 2172, 76 L.Ed.2d 277 (1983) (stating the standard for the NLRB to use

40

in order to declare a completed lawsuit unlawful under the NLRA, which was

recognized as dicta in BE & K Constr. Co. v. NLRB, 536 U.S. 516, 527, 122 S.Ct.

2390, 2397, 153 L.Ed.2d 499 (2002)); Donovan v. Penn Shipping Co., 429 U.S. 648,

649, 97 S.Ct. 835, 837, 51 L.Ed.2d 112 (1977) (per curiam) (stating that "[t]he proper

role of the trial and appellate courts in the federal system in reviewing the size of jury

verdicts is ... a matter of federal law," which was recognized as dicta in Gasperini v.

Ctr. for Humanities, Inc., 518 U.S. 415, 447 n. 6, 116 S.Ct. 2211, 2229 n. 6, 135

L.Ed.2d 659 (1996)); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,

689, 94 S.Ct. 2080, 2094-95, 40 L.Ed.2d 452 (1974) (stating in a forfeiture case that

"it would be difficult to reject the constitutional claim of an owner ... who proved not

only that he was uninvolved in and unaware of the wrongful activity, but also that he

had done all that reasonably could be expected to prevent the proscribed use of his

property," which was recognized as dicta in Bennis v. Michigan, 516 U.S. 442, 449-

50, 116 S.Ct. 994, 999, 134 L.Ed.2d 68 (1996)); Braden v. 30th Judicial Circuit

Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (1973) (stating that

"[s]o long as the custodian can be reached by service of process, the court can issue

a writ 'within its jurisdiction' ... even if the prisoner himself is confined outside the

court's territorial jurisdiction," which was recognized as dicta in Rumsfeld v. Padilla,

--- U.S. ----, 124 S.Ct. 2711, 2723, 159 L.Ed.2d 513 (2004)); Bouie v. City of

Columbia, 378 U.S. 347, 353-54, 362, 84 S.Ct. 1697, 1702, 1707, 12 L.Ed.2d 894

(1964) (stating that "[i]f a state legislature is barred by the Ex Post Facto Clause from

passing ... a law, it must follow that a State Supreme Court is barred by the Due

41

Process Clause from achieving precisely the same result by judicial construction,"

which was recognized as dicta in Rogers v. Tennessee, 532 U.S. 451, 458-59, 121

S.Ct. 1693, 1698, 149 L.Ed.2d 697 (2001)); and Am. Fire & Cas. Co. v. Finn, 341

U.S. 6, 16, 71 S.Ct. 534, 541, 95 L.Ed. 702 (1951) (stating that district court

judgments can be upheld, despite an improper removal, where the district court would

have had original jurisdiction at the time of trial or of the entry of judgment, which

was recognized as "well-known dicta" in Caterpillar Inc. v. Lewis, 519 U.S. 61, 71-

72, 117 S.Ct. 467, 474, 136 L.Ed.2d 437 (1996)).

All of these examples show that it is too late in the judicial day for any

suggestion that the use of dicta amounts to the issuance of an advisory opinion in

violation of Article III's case or controversy requirement. As one commentator has

correctly noted: "Essentially, an advisory opinion consists of formal, binding advice

from a court of law to other government officials or the general public in the absence

of a live case or controversy pending before the court. This definition would not

encompass other forms of judicial advice, including dicta, alternative holdings, and

the like, which are admittedly in some sense precatory in nature." Ronald J.

Krotoszyniski, Jr., Constitutional Flares: On Judges, Legislatures, and Dialogue, 83

Minn. L. Rev. 1, 8 n.27 (Nov.1998). The self-described dicta in my concurring

opinion does not purport to be "binding advice." It is merely the statement of my

views at this time on an issue that was briefed and argued but is not being decided in

this case. The opinion itself explicitly acknowledges that these views bind no one,

including me. Ante at 2224.

42

Stated somewhat differently, even if these views are seen as "advisory" in the

colloquial sense, their expression does not violate Article III. See Evan Tsen Lee,

Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev.

603, 648-49 (Jan.1992) ("It is clear that dicta—whether or not courts deem it to

constitute an 'advisory opinion'—run afoul of no constitutional or jurisdictional

barrier."); id. at 649 ("[W]hether to engage in dicta is a matter for the considered

discretion of a court, and calling it an 'advisory opinion' changes that not one whit.").

There are sound reasons why dicta is not binding, but there can also be good reasons

for its occasional use. See McDonald's Corp., 147 F.3d at 1314-15. Whether this is

a proper occasion for the use of dicta is a prudential decision for the writing judge.

It is not a constitutional issue.

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

I concur in the majority's conclusions that both the initiation and the manner

of the strip searches in this case were unconstitutional, and that qualified immunity

should have been denied as to the manner of the search. However, I believe that it

was unquestionably clear in 1999 that an investigatory strip search conducted

without reasonable suspicion is unconstitutional. Thus, although it may make no

practical difference here, I would deny qualified immunity as it relates to the

initiation of this strip search without reasonable suspicion.

Finally, I would also note that the assertion that "most" members of the Court

"are uncertain that jailers are required to have a reasonable suspicion of weapons or

contraband before strip searching ... arrestees bound for the general jail population,"

43

is dicta in this case, which, as the majority concedes, "provides no opportunity to

decide the question...."1

Stephens Is Not Entitled to Qualified Immunity for the Initiation of the Strip

Search

As an initial matter, the majority's distinction between the initiation of the strip

search and the manner of the search appears to have no practical effect here. The

initiation of the strip search is certainly one of the factors pertaining to the overall

constitutionality of the search, as is the manner of the search, but it should not be

addressed separately for purposes of a qualified immunity analysis. See Bell v.

Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (describing a

totality-of-the-circumstances analysis which takes into account "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"). However, assuming the appropriateness

of such a distinction, the law was clearly established through Schmerber v.

California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and United States

v. Himmelwright, 551 F.2d 991 (5th Cir.1977), that the initiation of a strip search

without reasonable suspicion was unconstitutional. Thus, Stephens was not entitled

to qualified immunity for either the initiation of the search or the manner in which it

1

Article III requires that we consider only those "questions presented in an adversary context

and in a form historically viewed as capable of resolution through the judicial process." Flast v.

Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Thus, staking out a position that

reasonable suspicion is not required for strip searches under circumstances not at issue in this

case, as Judge Carnes does, intrudes upon the constitutional restraints on the jurisdiction of the

federal courts. Even the majority's suggestion that "most" members of the court are uncertain

about the reasonable suspicion requirement should occur in a factually relevant case where

resolution of that question is necessary to the outcome of the dispute.

44

was conducted.

In Schmerber, the Court considered whether an arresting officer violated the

Fourth Amendment by extracting an arrestee's blood without a warrant after validly

arresting him for driving under the influence. See Schmerber, 384 U.S. at 758-59, 86

S.Ct. 1826. The Court noted that searches incident to arrest are generally valid, but

explained that "the mere fact of a lawful arrest" was not conclusive in this case. Id.

at 769, 86 S.Ct. 1826. In particular, the policy considerations which support the

validity of searches incident to arrest "have little applicability with respect to

searches involving intrusions beyond the body's surface." Id. (emphasis added). The

Court explained its reasoning as follows:

The interests in human dignity and privacy which the Fourth Amendment

protects forbid any such intrusions on the mere chance that desired evidence

might be obtained. In the absence of a clear indication that in fact such

evidence will be found, these fundamental human interests require law officers

to suffer the risk that such evidence may disappear unless there is an immediate

search.

Id. at 769-70, 86 S.Ct. 1826.

The Schmerber Court did proceed to find that based on the "special facts" of

that case, the searching officer "might reasonably have believed that he was

confronted with an emergency" because the percentage of alcohol in the arrestee's

blood would have diminished before the officer could have obtained a warrant,

especially because the investigation of the accident scene and the trip to the hospital

had already delayed the blood test. Id.

Both Schmerber and this case concern unusually invasive investigatory body

searches incident to arrest—indeed, a strip search like this represents an even more

45

invasive and degrading procedure than a blood draw—and in both cases the object

of the search was ostensibly to discover evidence retained within an arrestee's body.

Unlike the officers in Schmerber, however, Stephens cannot argue that this search

was precipitated by any emergency. Nor did he have any reason to believe that the

strip search would reveal relevant evidence, while the Schmerber officers did have

reason to believe they would find alcohol in the arrestee's blood. See id. at 768-69,

86 S.Ct. 1826. Thus, the features of the Schmerber search that saved it from violating

the Fourth Amendment are absent in this case.

Moreover, even in border searches there was a clearly established minimum

requirement of reasonable suspicion for investigatory strip searches by 1999. In

United States v. Himmelwright, the former Fifth Circuit held that the Fourth

Amendment required reasonable suspicion before an investigatory strip search at the

border, finding that "the 'reasonable suspicion' standard is flexible enough to afford

the full measure of protection which the fourth amendment commands." 551 F.2d at

995. The court "hasten[ed] to add that 'reasonable suspicion' in this context includes

a requirement that customs officials have cause to suspect that contraband exists in

the particular place which the officials decide to search." Id.; see also United States

v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985).

If, before 1999, the Fourth Amendment imposed a reasonable suspicion

requirement on border strip searches, where authority to search is less constrained

than it is in an ordinary domestic search incident to arrest, it is unquestionable that

at least the same degree of suspicion was required to conduct the strip searches in this

46

case. Schmerber and Himmelwright clearly established before 1999 that reasonable

suspicion was required to conduct an investigatory strip search. Based on the facts

of this case, no reasonable officer could have believed that a strip search was justified

simply because the arrestees were nervous when stopped by the police and claimed

to be lost.

47