Adrow v. Johnson

• Decision Date: 12 December 1985
• Docket Number: No. 84 C 10078.,84 C 10078.
• Citation: 623 F. Supp. 1085
• Parties: Gary ADROW, Plaintiff, v. Willie J. JOHNSON and Investigator Geanes, Defendants.
• Court: U.S. District Court — Northern District of Illinois

623 F. Supp. 1085

Gary ADROW, Plaintiff, v. Willie J. JOHNSON and Investigator Geanes, Defendants.

No. 84 C 10078.

United States District Court, N.D. Illinois, E.D.

December 12, 1985.

Kenneth N. Flaxman, Elizabeth Dale, Chicago, Ill., for plaintiff.

Iris E. Sholder, Randolph T. Kemmer, State's Atty.'s Office, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

The plaintiff, Gary Adrow, is a corrections officer at the Cook County Department of Corrections. Adrow brought this action against Lieutenant Willie J. Johnson and Inspector Geanes, also employees of the Department of Corrections, pursuant to 42 U.S.C. § 1983. The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

FACTS

Plaintiff worked a three p.m. to eleven p.m. shift at Cook County Jail on October 29, 1984. After plaintiff left the jail for a lunch break, Geanes received a telephone call from a person who refused to give his name. The caller told Geanes that a corrections officer who was then at lunch would be carrying narcotics into the jail when he returned. Geanes told Johnson about the call and they determined that plaintiff was the only officer who was then at lunch and would be returning to the jail.

When plaintiff returned, he was stopped by Geanes and Johnson and taken into a room, where he was searched.¹ Plaintiff was told to empty his pockets and Geanes inspected the contents. Plaintiff was then told to remove his shirt, undershirt, shoes, socks and belt and was told to roll his pants down several inches from the top. In addition, plaintiff's handcuff case and lunch were searched.

Plaintiff contends that this search, based solely on an anonymous tip, violated his fourth amendment right to be free from unreasonable searches and that he is therefore entitled to damages under 42 U.S.C. § 1983.²

Defendants make essentially two arguments in support of their motion for summary judgment. First, they argue that the search of plaintiff was "reasonable" within the meaning of the fourth amendment and that plaintiff's constitutional rights were not violated. Second, they argue that even if the search violated the fourth amendment, defendants acted within their qualified immunity and are therefore not liable for damages under § 1983.

A. Reasonableness of the Search

The fourth amendment prohibits only unreasonable searchs and seizures. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). Determining whether a particular search was reasonable "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). This balancing requires a consideration of "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 so conducted." Id.

Courts have recognized that prisons are "unique places `fraught with serious security dangers.'" Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 201 (2d Cir.1984) (quoting Bell, 441 U.S. at 559, 99 S.Ct. at 1884). It is because of these special security dangers and the attendant need for special security precautions that the ordinary constitutional requirement of a warrant based on probable cause is not required to satisfy the fourth amendment in some cases where searches have been conducted in prisons. See, e.g., Carey, 737 F.2d at 203. However, courts have also recognized that individuals do not lose all of their constitutional rights when they enter a prison, whether they be prisoners, visitors, or guards. See, Bell, 441 U.S. at 558-59, 99 S.Ct. at 1884-85 (prisoners); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982) (visitors); Carey, 737 F.2d at 201 (guards).

The question is whether this particular search was reasonable in the absence of a warrant. "In making this determination the reasonableness test `requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an object standard," whether this be probable cause or a less stringent test.'" Carey, 737 F.2d at 204 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). The question then becomes what test or standard should be required.

Defendants argue that the search of plaintiff was a "frisk," that a frisk involves a relatively small intrusion on the plaintiff, and that frisks are a routine part of prison procedures so that plaintiff's expectation of privacy is reduced.³ Defendants argue that there should therefore be a very low standard, or no standard at all.

Plaintiff, on the other hand, characterizes this search as a "strip search" and argues that a standard of "reasonable suspicion" should be applied. At least two courts have held that "reasonable suspicion" is the proper standard for determining whether a strip search of prison employees is constitutional. See, Carey, supra, 737 F.2d at 204; McDonell v. Hunter, 612 F.Supp. 1122, 1129 (S.D.Iowa 1985); cf. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (requiring reasonable suspicion to strip search minor offender detainees).

However this search is characterized, it does not appear to fall within the description of a "frisk."⁴ The Court of Appeals for the Seventh Circuit has identified "the standard frisk search" as "an outside-the-clothes check for concealed weapons." Madyun v. Franzen, 704 F.2d 954, 956 (7th Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983). This emphasis on being "outside-the-clothes" is consistent with the use of the term in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the famous case that made "frisk" a standard term of fourth amendment jurisprudence. The court in Terry emphasized the minimal scope of the search at issue in that case:

Officer McFadden patted down the outer clothing of petitioner.... He did not place his hands in their pockets or under the other surface of their garments until he had felt weapons....

Terry, 392 U.S. at 29-30, 88 S.Ct. at 1884. In the present case plaintiff claims that he was required to remove most of his clothing, a requirement totally inconsistent with the term "frisk."

It is more difficult to decide whether the search of plaintiff was a "strip search." The cases cited by plaintiff that were found to be "strip searches" involved either the removal of all of a person's clothing, leaving them entirely naked, or the baring of the genital area. See, e.g., Carey, supra; United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978). Meanwhile cases in which searches were found not to be strip searches have involved relatively small matters like the removal of a shoe or the lifting of one's skirt to the knees. See, e.g., United States v. Brown, 499 F.2d 829, 833-34 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974); United States v. Nieves, 609 F.2d 642 (2d Cir.1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980).

Obviously there are searches that do not qualify as either "frisks" or "strip searches." The Seventh Circuit has stated "not every request to remove an article of clothing or to remove something from pockets will transform a search into a strip search." United States v. Dorsey, 641 F.2d 1213 (7th Cir.1981). However, it emphasized that the key factor in such a decision is "the level of embarrassment and intrusion" that the person searched feels. Id. at 1217. Unlike the individuals searched in Brown, supra, and Nieves, supra, plaintiff was asked to remove most of his clothing. While removing one piece of clothing may not qualify as a strip search, leaving one piece of clothing on an individual will not save that search from being classified as a "strip search." Plaintiff's claimed level of embarrassment at being asked to remove all of his clothing but his underpants (the difference between rolling his pants down and taking them off is negligible) is insufficient to pose an issue of fact for trial.⁵

It then must be determined if the reasonable suspicion standard was met in this case. In order to justify the search of a correction officer under this standard, prison administrators "must point to specific and objective facts and rational inferences that they are entitled to draw from those facts in light of their experience." Hunter v. Auger, 672 F.2d 668 (8th Cir. 1982). Inchoate unspecified suspicions do not suffice. Id. "Factors that may be taken into account in determining reasonable suspicion are: (1) the nature of tip or information; (2) the reliability of the informant; (3) the degree of corroboration; and (4) other facts contributing to suspicion or lack thereof." Carey, 737 F.2d 187, 205 (2d Cir.1984) (citing United States v. Afanador, 567 F.2d 1325, 1329 n. 4 (5th Cir. 1978)).

Applying these factors to the present case, it is clear that the defendants did not have "reasonable suspicion" when they searched plaintiff. Suspicion was based only on an anonymous tip. This could have been made by anyone for any purpose. Defendants knew nothing about the reliability of the informant. There was nothing to corroborate the tip and nothing else to contribute to defendants' suspicion.

B. Qualified Immunity

Defendants also argue that even if this search violated the fourth amendment, they are protected by the qualified immunity accorded to certain government officials and are therefore not liable for damages under 42 U.S.C. § 1983.

"Prison officials receive qualified, not absolute, immunity from liability in a section 1983 damages suit. Procunier v. Navarette, 434 U.S. 555, 561 98 S.Ct. 855, 859, 55 L.Ed.2d 24, ... (1978)." Lock v. Jenkins, 641 F.3d 488, 498 (7th Cir.1981). Such officials "generally are shielded from liability for civil damages insofar as their conduct does...