Tina Spear v. Dewey Sowders

*583 BOGGS, Circuit Judge,

concurring in part and dissenting in part.

I concur in the decision of the court that it was inappropriate for the district court to have granted summary judgment on the basis of qualified immunity. However, I do so on a more limited basis than that contained in the court’s opinion, and I set forth my disagreement with a considerable portion of the court’s opinion.

In my view, the clearly established rights that the defendants may have violated, taking the view of the facts most favorable to the plaintiff, are the right not to be detained without probable cause, and the right not to be searched for administrative reasons without being given a chance to refuse the search and depart.

Because of the need for prison security, visitors do not have the right of unimpeded access to prisoners under the same circumstances that they would have unimpeded access, without government scrutiny, in society outside the prison. Bell v. Wolfish, 441 U.S. 520, 559 , 99 S.Ct. 1861, 1884 , 60 L.Ed.2d 447 (1979); Hudson v. Palmer, 468 U.S. 517, 527 , 104 S.Ct. 3194, 3201 , 82 L.Ed.2d 393 (1984). However, just as with the special circumstances that justify an electronic search by a metal detector at an airport, see, e.g., United States v. Davis, 482 F.2d 893 (9th Cir.1973), the government’s power to intrude depends on the fact that the person insists on access. There is no authority that prison officials, relying on their special powers, may search a visitor who objects, without giving the visitor the chance to abort the visit and depart. Here, prison officials detained Ms. Spear without probable cause and told her that she would not be permitted to depart without being searched. Under these circumstances, the consent was coerced, and could not operate to justify the search. Similarly, the search of Spear’s car was also based on a coerced consent.

II

The court’s opinion, however, goes far beyond this aspect of the search, to lay down novel and far-reaching principles governing the relationship between prison officials and visitors to the prison. The fundamental question involved here is what is “reasonable suspicion” of the carrying of contraband, in a prison visitor setting. Daugherty v. Campbell, 935 F.2d 780 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 939 , 117 L.Ed.2d 110 (1992). 1 The more important issue, however, is the court’s holding that it “has been clearly established that reasonable suspicion must support the scope of a search as well as the initiation of it.” While it is certainly true that progressively more intrusive searches are more distressing to those searched, and that the full body-cavity search involved here may indeed, as Spear states, have been “embarrass[ing], humiliat[ing], and demean[ing],” there is no law prior to this case that a person as to whom there is a reasonable suspicion of criminal conduct has a clearly established right to contact visits with a prisoner without paying such a price.

The court’s reading of the facts here is exceptionally narrow, and is more analogous to application of the preponderance of the evidence or probable cause standard, not the standard of reasonable suspicion. The facts as known to the prison officials were that a previously reliable tipster indicated that Spear’s boyfriend, the prisoner Daniel Wade, was obtaining drugs every time an unrelated female visited him. Spear was the only unrelated person to visit Wade in the previous year. The prison officials knew that Wade had had a number of drug-related infractions while in the prison. On its face, it is very difficult to understand how this could not be considered reasonable suspicion.

The court appears, however, to weigh against this information other information that does, to some extent, detract from its weight. Essentially, the opposing information is that there was no record that Wade had ever been caught with drugs shortly after one of Spear’s visits, except on one occasion when there was reason to believe that the drugs with which he had been *584 caught had a source inside the prison. While this information would certainly be relevant to a decision-maker, it strains credulity to believe that suspicion in a prison setting would vanish based on an assumption that prison procedures for detecting drugs are so perfectly efficient that we must assume that a prisoner does not have drugs except at the moment he is caught with them.

Second, the court lays down a new standard of “progressive suspicion” and holds that such a standard was also clearly established in New Jersey v. T.L.O., 469 U.S. 325 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985). This seems contrary to all logic: A person attempting to smuggle contraband is likely to hide it in a location more difficult, rather than a less difficult, to detect. But of. Poe, The Purloined Letter. The analogy to T.L.O. is of very little relevance here. While a “progressive search philosophy” may be necessary in the school context, the circumstances that render a search of a visitor necessary are more exigent in the prison setting. As the Supreme Court has pointed out, the “unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country,” Block v. Rutherford, 468 U.S. 576, 588-89 , 104 S.Ct. 3227, 3234 , 82 L.Ed.2d 438 , and that “[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.” Bell, 441 U.S. at 559 , 99 S.Ct. at 1884 . For these reasons, the Court has consistently “[struck] the balance in favor of institutional security,” Hudson, 468 U.S. at 527 , 104 S.Ct. at 3201 , 82 L.Ed.2d 393 (1984), and accorded great weight to the “professional expertise of corrections officials.” Bell, 441 U.S. at 548 , 99 S.Ct. at 1879 (quotations marks and citation omitted). Given these particularized circumstances, visitors possess a “diminished expectation of privacy” when they enter a correctional facility. Blackburn v. Snow, 771 F.2d 556, 565 (1st Cir.1985). Here, however, the court’s opinion gives particular added comfort to smugglers in that it means that if they leave no clues in the obvious places, they have additional security that less obvious places cannot be searched.

Finally, the court places a great deal of its confidence in other prison security measures. It specifically states that the search of prisoners after a session “alone vastly reduces the necessity to invade the privacy of a visitor.” The court is further comforted by the attendance, required by regulations, of a presumably ever-vigilant prison officer while the prisoner and visitor are allowed “no more contact than holding hands, though they may kiss and embrace briefly at the beginning and end of the visit.” This is a remarkably sanguine view of a factual situation taking place under difficult conditions, a long way from a federal appellate courthouse. 2 I do not see the slightest indication in the case law that this view of penal administration had been “clearly established” at any time. It, of course, raises the further anomalies that prison authorities under our jurisdiction may be impelled to end contact visits. Alternatively, they might decide that the interests of prison security would be better served by relaxing internal controls to a point satisfactory to federal judges, in order to maintain their ability to search visitors. This type of judicial second-guessing of prison administration in matters of security is exactly what the Supreme Court has repeatedly warned against. Bell, 441 U.S. at 548 , 99 S.Ct. at 1879 . I therefore concur in remand for further proceedings, but respectfully dissent from the reasons given by the court for the remand.

ORDER

Nov. 8, 1994

A judge of this court requested a poll which resulted in a majority of the judges of this court voting for rehearing of this case en banc.

Accordingly, the case will be scheduled for reargument before the en banc court at the earliest practicable date. The clerk will direct the parties to file supplemental brief.

. In some cases, a prison may not search a prisoner or visitor without probable cause. This higher standard, however, is not constitutionally mandated, but is the result of prison regulations to that effect. See, e.g., Daugherty v. Campbell, supra, and Long v. Norris, 929 F.2d 1111 (6th Cir.1991). Such regulations are binding on the state and establish a liberty interest of the visitors.

. For a recent example of jail smuggling activities in our circuit, see Michael Quinlan, A National Problem: Despite Efforts to Combat it, Smuggling is Common in Jails, Louisville Courier-Journal, Aug. 5, 1994, pp. A1, A6, A7.