Deserly v. Department of Corrections

• Decision Date: 15 February 2000
• Docket Number: No. 99-228.,99-228.
• Citation: 2000 MT 42,298 Mont. 328,995 P.2d 972
• Parties: Amy DESERLY, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, State of Montana, Defendant and Respondent.
• Court: Montana Supreme Court

995 P.2d 972

2000 MT 42

298 Mont. 328

Amy DESERLY, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, State of Montana, Defendant and Respondent.

No. 99-228.

Supreme Court of Montana.

Submitted on Briefs September 2, 1999.

Decided February 15, 2000.

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, Montana, For Appellant.

Matthew A. Robertson, Special Assistant Attorney General, Department of Corrections, Helena, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Amy Deserly (Deserly) appeals from the District Court's order dated March 5, 1999, on cross-motions for summary judgment. The court granted the Department of Corrections' (DOC) motion and denied Deserly's. We affirm.

Background

¶ 2 In June 1996, Deserly filed suit in Lewis and Clark County against the DOC requesting unspecified damages for emotional distress allegedly caused when DOC's Montana State Prison (MSP) officers required her to submit to a strip search when she visited her husband, an inmate at the MSP, in January 1994. Deserly complained that her privacy was invaded and that she was humiliated and "visually raped" as a result of the search. DOC answered, denying Deserly's allegations.

¶ 3 A trial date was set for September 14, 1998. However, at the close of discovery, the parties agreed to vacate the trial date as there were no material disputed facts to submit to a jury. The parties further agreed to submit cross-motions for summary judgement. In due course, following oral argument, the District Court issued its decision in favor of DOC and against Deserly. Judge Jeffery Sherlock concluded that Deserly's privacy was not invaded by the strip search which was reasonably justified. Deserly timely appealed.

¶ 4 The material, undisputed facts underlying Deserly's cause of action, based upon the pleadings and fruits of discovery, include the following. Deserly traveled to the MSP on or about January 19, 1994, to visit her husband, who was then an inmate. She had visited her husband at MSP many times prior to this occasion. After completing the necessary paperwork for her visit, Deserly attempted to pass through the metal detector. However, she set off the alarm indicating the presence of metal on her person. As she had in the past, Deserly was wearing an underwire bra, and, accordingly, informed the MSP officer on duty that the bra was triggering the metal detector. While MSP's inmate visiting policy required that female visitors wear a sport, regular, or strapless bra at all times, the policy did not, at that time, prohibit the wearing of an underwire bra.

¶ 5 The officer instructed Deserly to pass through the detector again, but this attempt, likewise, failed. Deserly then attempted to pass through the detector sideways but was informed that she could not pass through the metal detector in this manner. A final attempt by Deserly also failed.

¶ 6 At this point the MSP officer informed Deserly that she could consent to a strip search. She was also informed that if she refused the strip search, she would be denied contact visitation but would be allowed non-contact visitation.

¶ 7 Deserly initially refused to sign the consent form. On meeting with the shift commander she reconsidered, signed the form, and consented to the search. As a result, Deserly was accompanied by two female corrections officers to the women's restroom where Deserly removed her clothing. Each article of clothing was examined for contraband. Neither officer made physical contact with Deserly or conducted any body cavity search. The officers found that Deserly was wearing an underwire bra and that she was not concealing any contraband. Therefore, Deserly was allowed to make her visit wearing the bra.

¶ 8 On or about August 30, 1995, Deserly again visited the prison. She wore an underwire bra and, once more, she could not pass the metal detector. Deserly was advised, as she was previously, as to the necessity for a strip search and of the consequences of refusing. After initially declining to consent to a strip search, she offered to remove her bra and then go through the detector. Deserly was advised that removing her bra would be a partial strip search and that her consent would be required. Accordingly, Deserly signed the consent form and, in the presence of two female corrections officers in the restroom, removed her bra. Deserly was then taken back to the metal detector. After successfully passing through, she was allowed to return to the women's restroom, put on her bra, and then visit her husband.

¶ 9 Finally, the record reveals that Deserly was, for two and one-half years, a jailer for the Minnehaha County Jail in Sioux Falls, South Dakota. As a result of her training, she knew what a strip search entailed and how to conduct one. Furthermore, Deserly read and was aware of the MSP Inmate Visiting Policy which, among other things, states that "Where a reasonable suspicion exists that the visitor may be carrying contraband, the officers may perform a strip search with the written authorization of the lieutenant or higher authority. The visitor will also sign a consent form prior to the search being conducted."

¶ 10 On these facts, the issue, then, is whether the District Court erred, as a matter of law, in granting summary judgement to DOC and in denying summary judgment to Deserly.

Discussion

I.

¶ 11 As already noted, the parties agree that there are no material facts in dispute and that this matter should be decided on the basis of cross-motions for summary judgment. Under these circumstances our standard of review is the same as that articulated in Ross v. City of Great Falls, 1998 MT 276, 291 Mont. 377, 967 P.2d 1103:

"Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law." Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88; Rule 56(c), M.R.Civ.P. We review a district court's grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria as the district court. Ash Grove Cement Co.,283 Mont. at 491,943 P.2d at 88 (citation omitted).

In the usual summary judgment case, we first determine whether "the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law." Ash Grove Cement Co., 283 Mont. at 491, 943 P.2d at 88 (citation omitted). In the present case, however, the parties agree on the material facts. As a result, the question before us is whether the District Court correctly concluded that the [movant] was entitled to judgment as a matter of law. We review a district court's conclusions of law to determine whether the interpretation of the law is correct. Ash Grove Cement Co., 283 Mont. at 491-92, 943 P.2d at 89 (citation omitted).

Ross, ¶¶ 9-10.

II.

¶ 12 Deserly concedes that, because the State has an interest in the security of its penal institutions, searches of inmate visitors are justifiable only on satisfying a reasonable suspicion standard. She maintains, however, that the District Court erred in concluding that, without the use of a strip search, correctional officers would not have been able to determine whether it was indeed Deserly's underwire bra, and not contraband, which caused the metal detector to sound. Deserly contends that DOC failed to demonstrate and the court failed to consider that DOC's concededly legitimate penological need to conduct the search could not have been satisfied by more narrow means. Specifically, Deserly argues that, as they did in August 1995, the corrections officers could have and should have ordered Deserly to remove her underwire bra in the women's restroom without a strip search and then allow her to attempt to pass through the metal detector.

¶ 13 DOC responds that its officers had a reasonable suspicion to request Deserly to submit to a strip search. DOC points out that Deserly failed four times to successfully pass through the detector and that one of these attempts was specifically aimed at defeating the detector. While acknowledging her right of privacy, DOC argues that Deserly's expectation of her ability to preserve that right inside the MSP was unreasonable given the overriding interest of the MSP prison officials to protect the safety and security of the institution and the employees, inmates, and visitors within its confines as well as preventing the introduction of contraband into the institution by visitors.

¶ 14 Finally, DOC argues that Deserly voluntarily and knowingly waived her right of privacy when she signed the consent to search form. Since this last argument was not the basis for the trial court's decision, however, we decline to address it further. We decide rather, whether the District Court correctly determined the MSP officers had a "reasonable suspicion" to request Deserly to participate in the strip search and whether the search, as conducted, was reasonable under the circumstances.

III.

¶ 15 This Court has not previously had occasion to consider a case involving the reasonableness of a personal search of an inmate visitor—specifically a strip search¹—within the confines of a correctional facility. We have in numerous cases, however, stated that Montanans enjoy a heightened right of privacy given this State's textual inclusion of that right in its Constitution, Article II, Section 10, and that when a right of privacy is specially implicated as part of a traditional search and seizure analysis, we must address the issue pursuant to both Sections 10 and 11 of Article II, of Montana's Constitution. See State v. Scheetz (1997), 286 Mont. 41, 45-47, 950 P.2d 722, 724-25

(citations omitted). Article II, section 10, specifically protects the right of individual privacy and Article II, Section 11, provides protection against unreasonable searches and seizures of persons, papers, homes, and effects.

¶ 16 Moreover, ...