46 F.3d 1013 (10th Cir. 1995), 93-6307, Romo v. Champion

Docket Nº:93-6307, 93-6317.
Citation:46 F.3d 1013
Party Name:Johnnie E. ROMO, Plaintiff-Appellant, and Marilyn Romo and Misty D. Gardner, Plaintiffs, v. Ron CHAMPION; Bill McKenzie; Gary Maynard; Oklahoma Highway Patrol; Osage County Sheriff's Office; Pawhuska County Sheriff's Office; and Hominy City Police, Defendants-Appellees.
Case Date:January 31, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1013

46 F.3d 1013 (10th Cir. 1995)

Johnnie E. ROMO, Plaintiff-Appellant,


Marilyn Romo and Misty D. Gardner, Plaintiffs,


Ron CHAMPION; Bill McKenzie; Gary Maynard; Oklahoma

Highway Patrol; Osage County Sheriff's Office;

Pawhuska County Sheriff's Office; and

Hominy City Police,


Nos. 93-6307, 93-6317.

United States Court of Appeals, Tenth Circuit

January 31, 1995

Page 1014

Micheal Salem, of Salem Law Offices, Norman, OK, for appellants.

Gayla I. Fields, Lee, Collins & Fields, Oklahoma City, OK (David W. Lee, with her on the briefs, for appellees Osage County Sheriff's Office and Hominy City Police Dept.). Bill Heskett and Stephen A. Lamirand of Heskett & Heskett, Pawhuska, OK, were also on the briefs, for appellee City of Hominy.

Guy L. Hurst, Asst. Atty. Gen., Oklahoma City, OK (Susan B. Loving, Atty. Gen., and Linda K. Soper, Asst. Atty. Gen., Oklahoma City, OK, were on the briefs), for appellees Champion, Evans, Maynard, McKenzie, Ariss and Watson.

Cara Epps Clifton, Dept. of Public Safety, Oklahoma City, OK, filed a brief, for appellee Oklahoma Highway Patrol and non-parties Croy, Waldon and Roberts.

Johnnie E. Romo and Marilyn L. Romo, filed pro se briefs.

Before TACHA and SETH, Circuit Judges, and LUNGSTRUM, District Judge d

TACHA, Circuit Judge.

Plaintiffs Marilyn Romo and her daughter, Misty Gardner, filed suit alleging that defendants Ron Champion, Bill McKenzie, Gary Maynard, the Oklahoma Highway Patrol, the Osage County Sheriff's Office, the Pawhuska County Sheriff's Office, and the Hominy City Police violated their constitutional rights in violation of 42 U.S.C. Sec. 1983. They now appeal the district court's order granting defendants' motion for summary judgment. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

I. Background

The relevant facts as alleged by plaintiffs are as follows. On September 2, 1989, plaintiffs Romo and Gardner were stopped at a roadblock near the entrance to Dick Conner Correctional Center in Hominy, Oklahoma. Ms. Romo was driving to the correctional center to visit her husband, Johnnie Romo, a prison inmate. The roadblock was jointly conducted by the Oklahoma Highway Patrol, the Hominy Police Department, the Osage County Sheriff's Office, and Dick Conner Correctional Center security personnel. The roadblock itself was outside the perimeter of the prison grounds on an access road, 1 but the road leads only to the prison parking lot.

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After being stopped at the roadblock, Ms. Romo was asked to turn off her vehicle's ignition, open the doors and trunk of the car, and return to her seat inside the car. Romo and her daughter remained seated in the car while a drug interdiction canine sniffed the vehicle. The dog also sniffed both plaintiffs' bodies during its sweep of the vehicle. 2 The dog alerted to Ms. Romo, indicating the presence of a narcotic on her person. Ms. Romo was then asked to consent to a strip search, and she signed a written form consenting to the search. Two female officers conducted the strip search and discovered marijuana in Ms. Romo's possession.

Plaintiffs filed a civil rights claim pursuant to 42 U.S.C. Sec. 1983, alleging that defendants violated their Fourth Amendment right to be free from unreasonable searches and seizures. Defendants moved for summary judgment. The district court referred the matter to a magistrate judge, who recommended that defendants' motion be granted. After a de novo review of the pleadings and the record, the district court adopted the magistrate's recommendation and issued an order granting summary judgment to defendants.

Plaintiffs appeal the district court's order on three grounds. First, they contend that the initial stopping of their car at the roadblock was an unconstitutional seizure. Second, they claim that the search and canine sniff of their vehicle and the sniff of their bodies at the roadblock were unconstitutional searches. Finally, they assert that the strip search of Ms. Romo was unconstitutional because the officers obtained her consent coercively.

II. Discussion

Summary judgment is appropriate when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We review a district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party. Calandro v. First Community Bank & Trust, 991 F.2d 640, 642 (10th Cir.1993).

  1. The Stop of Plaintiffs' Car at the Roadblock

    As a preliminary matter, we must acknowledge that the roadblock at issue here differed significantly from a roadblock stopping all motorists on an ordinary public thoroughfare. Because of its location, defendants' roadblock only stopped motorists attempting to enter the Dick Conner Correctional Center; it therefore served as an element of the prison's overall security operation. As a reviewing court, we must largely defer to the judgment of prison administrators in matters of institutional security. Whitley v. Albers, 475 U.S. 312, 321-22, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986); Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). As the Supreme Court has stated, "[p]rison 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. Prison administrators' responsibility for maintaining security includes the duty to "intercept and exclude by all reasonable means all contraband smuggled into the facility." Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982); see also Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977) (stating that prison authorities' "prime consideration is the preservation of the safety and security of the prison," which includes the "duty to intercept narcotics and other harmful contraband"

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    being smuggled into the facility by visitors), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). We therefore review the constitutionality of the detention of plaintiffs' car at the roadblock with significant deference to the judgment of prison officials.

    The stop of a vehicle at a roadblock on a public thoroughfare is clearly a seizure within the meaning of the Fourth Amendment. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990). But the Fourth Amendment forbids only those seizures that are "unreasonable." U.S. Const. amend. IV. In determining whether the stop of plaintiffs' vehicle was unreasonable, we must evaluate the circumstances of the stop and the relevant interests at stake. Our analysis is guided by the three-part test articulated by the Supreme Court in Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). Sitz, 496 U.S. at 450, 110 S.Ct. at 2485. Under Brown, the constitutionality of a stop depends on "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the...

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