45 F.3d 1040 (7th Cir. 1995), 94-1483, Kraushaar v. Flanigan

Docket Nº:94-1483.
Citation:45 F.3d 1040
Party Name:Terril A. KRAUSHAAR, Plaintiff-Appellant, v. Earl K. FLANIGAN, Fred Winterroth, Robin Davis, and Tazewell County, Defendants-Appellees.
Case Date:January 13, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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45 F.3d 1040 (7th Cir. 1995)

Terril A. KRAUSHAAR, Plaintiff-Appellant,


Earl K. FLANIGAN, Fred Winterroth, Robin Davis, and Tazewell

County, Defendants-Appellees.

No. 94-1483.

United States Court of Appeals, Seventh Circuit

January 13, 1995

Argued Sept. 9, 1994.

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[Copyrighted Material Omitted]

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Christopher P. Ryan (argued), Kingery, Durree, Wakeman & Ryan, Peoria, IL, for plaintiff-appellant.

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Deborah L. Ahlstrand, Jerald S. Post (argued), Asst. Attys. Gen., Civ. Appeals Div., Chicago, IL, Carol J. Barlow, Asst. Atty. Gen., Environmental Control Div., Springfield, IL, for Earl R. Flanigan and Fred Winterroth.

Stewart J. Umholtz (argued), Office of the State's Atty. of Tazewell County, Pekin, IL, for Tazewell County and Robin Davis.

Before BAUER and FLAUM, Circuit Judges, and FOREMAN, District Judge. [*]

FOREMAN, District Judge.

Terril A. Kraushaar filed various federal and state claims challenging his arrest for driving under the influence and a subsequent strip search at the jail while being processed for the traffic offense. We affirm the judgment entered in favor of the defendants on all claims that were actually decided by the trial court but remand for determination of a claim that was overlooked below.


This case arises out of Kraushaar's arrest at a "roadside safety check" conducted by state police on December 18, 1988, in Tazewell County, Illinois. Kraushaar, who was 19 at the time, had just left a party at which he had consumed several beers. State trooper Earl K. Flanigan stated that while he was checking Kraushaar at the roadside stop, he saw Kraushaar make furtive hand movements around the waist of his pants. Flanigan accused Kraushaar of hiding something in his pants but Kraushaar stated that he was tucking in his shirt.

Flanigan ordered Kraushaar out of the vehicle. He stated that he smelled alcohol on Kraushaar's breath and that Kraushaar was unable to perform several field sobriety tests. As a result, Flanigan informed Kraushaar that he was placing him under arrest. He stated that Kraushaar continued making furtive motions around his waistband. Flanigan and trooper Fred Winterroth conducted a pat-down search of Kraushaar but did not find any weapons or contraband.

Kraushaar stated that Flanigan reached inside Kraushaar's pants, unsnapping several buttons of his fly. He testified that Flanigan asked him to undo the last two buttons and Kraushaar complied, which caused his pants to fall down around his thighs. Flanigan contradicted this testimony, stating that he had merely checked Kraushaar's waistband by placing his thumb in the waistband up to the first knuckle.

When Kraushaar failed to comply with a request to get spread-eagle on the car, one of the officers kicked Kraushaar's legs apart. Kraushaar, who said he was unable to comply because his pants were falling down, testified that he was kicked so hard that it caused bruises. Winterroth admitted kicking Kraushaar's legs apart but stated he did not do so hard enough to cause bruises.

Flanigan took Kraushaar to the Tazewell County Jail and charged him with driving under the influence (DUI). Flanigan attempted to conduct a breathalyzer test at the station but said Kraushaar failed to blow a sufficient volume of air to make the breathalyzer register.

A second pat-down search at the jail failed to turn up any weapons or contraband. Kraushaar was then subjected to a strip search by jailer Robin Davis. Flanigan was present in the doorway at least part of the time. Kraushaar was told to remove his pants and lower his underwear to permit inspection. No weapons or contraband were found.

There was conflicting testimony as to whether this search had been properly authorized. The desk sergeant, Robert W. Lickiss, does not remember the incident and no authorization form has been located. However, Davis states that Lickiss gave oral permission for the search by telephone. Lickiss stated that he would not have given authorization for a strip search based solely on Flanigan's statement that the arrestee put his hands down his pants.

To contradict Flanigan's assertion that Kraushaar was "falling down drunk" at the time of his arrest, Kraushaar points to the fact that he was able to stand by himself for the strip search and remove his pants without

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any assistance within an hour after his arrest. Kraushaar's parents, a brother, and a friend also testified that Kraushaar did not appear intoxicated either before the incident or afterward.

The DUI charges against Kraushaar were dismissed for lack of probable cause to arrest Kraushaar or to believe that Kraushaar was operating a vehicle under the influence of alcohol. Kraushaar subsequently brought a claim against the state troopers, the county, and county jailer under 42 U.S.C. Sec. 1983, alleging the use of excessive force and an illegal strip search. He also brought state law claims sounding in assault and battery, false arrest, and malicious prosecution.

In a pretrial motion hearing, District Judge Joe B. McDade held that collateral estoppel would not be applied to the findings of no probable cause made by the state courts in the underlying DUI prosecution. He subsequently granted summary judgment on several counts against the troopers, finding that state law provided immunity for non-willful or wanton acts. 1 He also granted summary judgment on several counts against the jailer and the county, finding that Davis had not committed a battery because there had been no physical touching and that the strip search did not violate Kraushaar's constitutional rights.

The parties stipulated to a trial before Magistrate Judge Robert J. Kauffman, who found that the state troopers had probable cause for the arrest and for conducting the strip search of Kraushaar at the jail and that no unnecessary force was used in effecting the arrest. Kraushaar appeals from the final judgment entered in favor of the defendants.


  1. Summary Judgment in Favor of Davis and Tazewell County

    The appellant argues that the district court erred in granting summary judgment in favor of jailer Davis on the grounds that the strip search at the jail did not violate his constitutional rights. He also contends that the district court erred in concluding that Davis's conduct did not constitute an assault and battery because Davis had not touched Kraushaar during the search.

    Because these rulings came on a motion for summary judgment, they are to be reviewed de novo. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 663 (7th Cir.1992); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370 (7th Cir.1992).

    In order to uphold a grant of summary judgment, we must "view the record and all inferences drawn from it in the light most favorable to the party opposing the motion" ... and conclude there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

    McCoy, 957 F.2d at 370. "Summary judgment is only appropriate when the record reveals that no reasonable jury could find for the non-moving party." Id.

    1. Constitutionality of the Strip Search

    Count IX of the amended complaint alleged that the strip search conducted by Davis at the jail violated Kraushaar's Fourth and Fourteenth Amendment rights to due process and freedom from unreasonable search and seizure. The complaint alleged that there was no probable cause to believe that Kraushaar was guilty of any crime or that he was in possession of a weapon or other controlled substance. The complaint further alleged that the search was conducted in violation of the Illinois Code of Criminal Procedure's requirements for strip searches. 2

    The district court granted summary judgment in favor of Davis on the grounds that

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    probable cause existed for the limited strip search based upon the information provided by trooper Flanigan--i.e., that Flanigan believed that Kraushaar had hidden something in his pants. The court acknowledged that the search did not comply with all of the requirements set forth by the state statute governing strip searches because there was no written authorization form and or a written report of the search. However, the court held that the state statute did not create a federally protected liberty interest and, therefore, failure to comply with the statute's requirements was not actionable under 42 U.S.C. Sec. 1983. We find no error in either ruling.

    The Fourth Amendment provides that "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...." U.S. Const. amend. IV. To determine whether a search is reasonable "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

    A detention facility is a "unique place fraught with serious security dangers[,]" id., and officials have a legitimate and substantial need to prevent arrestees from bringing weapons or contraband into such a facility. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983). Balanced against this interest, however, is the fact that strip searches involving visual inspection of the genital areas are "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission...." Id. at 1272...

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