Saffell v. Crews Inspector #18497, 98-4255

• Decision Date: 06 July 1999
• Docket Number: No. 98-4255,98-4255
• Citation: 183 F.3d 655
• Parties: Page 655 183 F.3d 655 (7th Cir. 1999) Genevieve Saffell, Plaintiff-Appellee, v. Carrie L. Crews, Inspector #18497, Defendant-Appellant. United States Court of Appeals, Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 655

183 F.3d 655 (7th Cir. 1999)

Genevieve Saffell, Plaintiff-Appellee v Carrie L. Crews, Inspector #18497, Defendant-Appellant.

No. 98-4255

United States Court of Appeals, Seventh Circuit

Argued May 19, 1999

Decided July 6, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 7209--Paul E. Plunkett, Judge.

Before Harlington Wood, Jr., Flaum, and Manion, Circuit Judges.

Harlington Wood, Jr., Circuit Judge.

Defendant Carrie L. Crews, a veteran Customs Service inspector, appeals a judgment for $25,000 entered personally against her in a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), brought by plaintiff Genevieve Saffell. The controversy concerns a strip search of Saffell by Crews upon the arrival of Saffell back in the United States from a trip to Jamaica. The district court in a bench trial after several amendments entered final judgment for the United States on Saffell's common law tort claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. sec.sec. 2671-80; for Saffell on the Bivens claim for damages against Crews personally in the amount of $25,000; but against Saffell on her prayer for punitive damages against Crews. Crews appeals. There is no cross appeal by Saffell. Some background information is necessary, but we need not detail all the evidence for our purposes.

At the time of this incident, in November 1995, Crews, a veteran of twelve years with the Customs Service, was working as a roving inspector in the international terminal at O'Hare International Airport. Her job was to assist with interviewing and processing of arriving international passengers and their baggage and, in particular, to help intercept drug smugglers. Saffell, a naturalized citizen residing in Wisconsin, arrived back in the United States on November 1, 1995, after spending a week in Jamaica. Crews was notified that a narcotics detection dog had alerted to Saffell's luggage. When Saffell retrieved her luggage at the baggage carousel, Crews asked Saffell to follow her to a search area, which Saffell did. A patdown search by Crews revealed a bulge under Saffell's clothes in the most intimate area of her body, a place where drugs are sometimes known to be secreted by women. A partial strip search followed the patdown but no drugs were found.

Crews' version of the strip search, much more limited in scope than Saffell's version, was accepted by the district court. Saffell's account was found not to be truthful. Had Saffell's version alleging extreme intimate personal contact and intrusion been accepted by the district court this case could have been more difficult. The district court found that Crews was justified in performing the patdown search which disclosed the bulge in Saffell's clothing. The court noted the canine alert as justification together with the fact that Saffell had just arrived from a country with the reputation of being a source of narcotics where Saffell had been three times in a little over a year. Upon questioning, Saffell declined argumentatively to discuss the trip or her personal situation with Crews. As it turned out, had Saffell communicated her reasonable explanations to Crews that would have helped her. However, the district court concluded that although the original patdown search was justified, Crews lacked reasonable suspicion to proceed further and to perform the partial strip search. The bulge and the other surrounding circumstances were not considered sufficient to justify the strip search.

Prior to trial, Crews and two other Customs inspectors initially named as defendants filed a motion for summary judgment on the basis of qualified immunity. That motion was granted with respect to the other two inspectors, but denied as to Crews. To reach that result the district court credited Saffell's account of the strip search, an account which it later rejected at trial. However, the district court did not revisit its first immunity ruling as to Crews when it drastically amended its factual strip search findings later at trial.

We review de novo the trial court's determination of reasonable suspicion to perform a search which is also the same standard we use to review the qualified immunity issue. Elder v. Holloway, 510 U.S. 510, 516 (1994); Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). The district court's findings of fact, however, are reviewed only for clear error. United States v. Ward, 144 F.3d 1024, 1030 (7th Cir. 1998). Because O'Hare is an international gateway into the United States, arriving passengers are subject to searches in the same category as searches at the border. United States v. Johnson, 991 F.2d 1287, 1290 (7th Cir. 1993). The government under that standard is allowed a little more leeway "pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." United States v. Ramsey, 431 U.S. 606, 616, 619 (1977). In those searches, the rights of the government compared with the privacy rights of international travelers are "more favorable to the government." United States v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985).

We fully agree with the district court that there was justification for the initial search, and finding no clear error, we accept the district court's final factual findings later made at trial about the limited extent of the strip search. We therefore disregard the district court's findings of fact on summary judgment which findings were later rejected by the district court. We must disagree, however, with the district court's holding that Crews was not entitled to qualified immunity. First of all, considering all the facts and circumstances in this case we see no Fourth Amendment violation of the right to be secure from unreasonable searches and seizures. We believe that the partial strip search was fully justified. The Customs Service has had...