117 F.3d 1 (1st Cir. 1997), 96-2035, Swain v. Spinney

Docket Nº:96-2035.
Citation:117 F.3d 1
Party Name:Kelli SWAIN, Plaintiff, Appellant, v. Laura SPINNEY, Edward Hayes, and the Town of North Reading, Defendants, Appellees.
Case Date:June 25, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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117 F.3d 1 (1st Cir. 1997)

Kelli SWAIN, Plaintiff, Appellant,


Laura SPINNEY, Edward Hayes, and the Town of North Reading,

Defendants, Appellees.

No. 96-2035.

United States Court of Appeals, First Circuit

June 25, 1997

Heard Feb. 5, 1997.

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Michael Tyler, with whom Michael Edward Casey, Beverly, MA, was on brief, for appellant.

Douglas I. Louison, Boston, MA, with whom Regina M. Gilgun and Merrick & Louison were on brief, for appellees.

Before STAHL, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Kelli Swain was subjected to a strip search and visual body cavity inspection, while being held in a cell in the North Reading, Massachusetts police station. This search occurred after Swain had been in the cell for twenty minutes, and more than an hour after she was arrested. She was arrested with her boyfriend as a result of his shoplifting; she was suspected of having possessed a small baggie of marijuana. The search was ordered, she says, by a police officer immediately after he had interrogated her, while knowing she was represented by counsel. He had become angry with Swain for saying she knew nothing about her boyfriend's shoplifting. Swain's boyfriend, who was also in custody, whose shoplifting had triggered the arrests, and who had an extensive criminal record, including drug crimes, was not strip-searched. The charges against Swain were eventually nol prossed.

Swain brought suit under 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 12, §§ 11H, 11I, alleging that the search humiliated her and caused lasting emotional damage. The district court granted summary judgment for the defendants. The court held that there were no material facts in dispute which would support Swain's claims that the search was not reasonable under the Fourth Amendment and that the officers were not entitled to immunity. We hold that, as alleged by Swain, a jury could find that the search was not justified by a reasonable suspicion, and that the jury should have the opportunity to resolve the factual disputes pertinent to the issue of whether the officers were entitled to the protections of qualified immunity. Swain fails, however, to meet the exacting standards for municipal liability under § 1983, even on her version of the facts. Accordingly, the judgment of the district court with respect to the individual defendants is reversed, but the grant of summary judgment as to the Town of North Reading is affirmed.


We review the facts in the light most favorable to Swain, the party opposing summary judgment. On May 18, 1993, Kelli Swain and her boyfriend, Christopher Milbury, went apartment hunting in the Danvers, Massachusetts area. Around 10:00 a.m., after the couple had been driving for a little while, Milbury told Swain that he needed to pick up some things at Moynihan Lumber. Swain waited in the car while Milbury went into the store; he was gone about ten minutes. When Milbury got back, he placed a bag behind the seat and started to leave the parking lot. As they drove out of the

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parking lot, Swain saw Moynihan Lumber employees pointing at the car; she also saw a police cruiser pulling into the lot just as she and Milbury were pulling out.

Swain became very upset. She began questioning Milbury about what was going on. Then, after they had driven 200 or 300 yards, the police cruiser, which had been following the couple since the parking lot, turned on its blue lights and its siren; Milbury pulled their car over. Officer Robert Marchionda then approached the vehicle and Milbury got out of the car. Swain remained in the car for a minute or two, and then got out when she saw Milbury being handcuffed. As Swain got out, she dropped a baggie of marijuana on the ground about three feet away from the car. Officer Marchionda had seen Swain put her hands behind her back and drop an object onto the grass, but could not, at that point, identify the object. Officer Marchionda radioed for backup, and another officer, Officer Romeo, arrived soon thereafter. Swain then approached the officers, but was stopped by one of them, who restrained her with his hands. She asked what was going on, and was told that Milbury was suspected of taking things from Moynihan Lumber. Officer Marchionda then arrested Swain and handcuffed her. While he was handcuffing her, he saw that the dropped object was a baggie of marijuana. He retrieved it. Swain was pat frisked at the scene, but nothing was found on her person.

When the police searched the car, they found $400 worth of hardware in the trunk, which had been taken from another store in Gloucester, Massachusetts, and another $400 worth of sawblades, wrapped in a hardware flyer, under the front seat. Swain was surprised to see the merchandise there. The police implied that she was an accomplice to Milbury's theft; she kept saying that she did not know anything about it. Milbury also told the police that Swain was innocent.

Neither of the officers ever asked her about the marijuana on the ground. Swain did not see anyone pick up the marijuana and did not know if anyone had seen her drop it.

After about thirty minutes at the scene, Swain and Milbury were transported in a police cruiser to the North Reading Police Station. When she got to the station, her handcuffs were removed. Swain was seated at a booking desk, and an officer had her sign a rights card. Matron Laura Spinney, the chief of police's secretary, was called to the booking desk because a female was under arrest.

While in the booking area, Swain asked to go to the bathroom. Matron Spinney escorted her to a bathroom, but did not come in with her. Swain was allowed to close the door almost all of the way, leaving it open just a little. Spinney stood outside the door to the room, where she could hear Swain using the facilities, but could not see Swain.

Swain then returned to the booking area, and was told that she could make a phone call. She was shown to a small office, and a police officer stood outside. She called her attorney and spoke with him for five to ten minutes.

While Swain was seated in the booking area, her pocketbook was searched by Spinney. Spinney found cigarette rolling papers in the pocketbook. No one discussed these papers with Swain. At that point, one of the officers advised Swain that marijuana had been found at the scene and that she was going to be charged in connection with it. Swain denied that it was her marijuana.

Swain was then fingerprinted and photographed. Officer Ed Hayes, the prosecuting officer and detective department supervisor, ordered Matron Spinney to take Swain to a cell. Spinney pat frisked Swain before taking her to the cell and found nothing on her. Swain was left alone in the cell for about twenty minutes. According to Swain, Sergeant Hayes then came to her cell and attempted to question her about Milbury's criminal activities. Hayes yelled at Swain, telling her that she was lying, and that she should tell him what was going on. Swain, who was crying hysterically, kept repeating that she honestly knew nothing. According to Swain, Hayes' questioning lasted approximately fifteen minutes and then he "walked out in a huff."

Hayes states that he only stayed with Swain in the cell area for approximately one minute. He has no recollection of what he

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discussed with Swain, but asserts that it would be normal procedure for him to talk to detainees to advise them about their arraignments. He does not recall interrogating Swain about Milbury's activities, but cannot state that he did not do so. Milbury, who was located in another cell where he could hear but not see Swain, stated that he heard Hayes talking to her and also heard Swain crying and saying that she was innocent.

About five to ten minutes after Hayes' departure, Spinney returned and apologetically informed Swain that Hayes had ordered her to strip search Swain. It is Hayes' testimony that he believes he would have ordered such a search prior to speaking with Swain. Spinney does not know whether the search was ordered before or after Hayes spoke with Swain, but knows that Hayes did not order a strip search when he originally told Spinney to take Swain to the cell. Spinney states, however, that the order to strip search came almost immediately after she brought Swain to the cell, and not a significant amount of time later.

Swain could not understand why she was being searched and began crying again. Spinney then ordered Swain to remove all of her clothing except for her bra. Spinney shook out each item as Swain took it off. Spinney then made Swain bend over and spread her buttocks. Swain was very upset and shaking uncontrollably the entire time. Swain was then told she could get dressed. Spinney found nothing during her search. The entire procedure lasted fifteen minutes. Hayes had not told Spinney what to look for, but Spinney knew that marijuana had been found at the scene, and assumed that she was looking for drugs.

Swain asserts that, before she was asked to strip, Spinney assured Swain that the video camera in the cell area was already off. Swain did not see her turn the camera off. Chief of Police Henry Purnell testified, however, that the station cameras, including the one in the female cell, are constantly left on. Videotapes are sometimes made from these cameras, but the Department has no policies or procedures concerning the making, storage, or retention of these tapes. Matrons are instructed to turn the cell camera off, by pressing a button, when conducting a search. Spinney states that she turned the camera off with a wall switch before searching Swain, but does not recall telling Swain that the camera was off or making any comments about the camera at all.


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