Anderson v. Department of Public Safety
| Decision Date | 26 March 2008 |
| Docket Number | No. 2007 CA 1603.,2007 CA 1603. |
| Citation | 985 So.2d 160 |
| Parties | David ANDERSON v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Avoyelles Correctional Center. |
| Court | Court of Appeal of Louisiana — District of US |
Mark E. Falcon, Daniel L. Avant, Baton Rouge, LA, for Plaintiff/Appellant David Anderson.
L. Bruce Dodd, Angola, LA, for Defendant/Appellee Department of Public Safety and Corrections, Avoyelles Correctional Center.
Before GAIDRY, McDONALD, and McCLENDON, JJ.
This matter comes to us on appeal from a decision of the Louisiana Civil Service Commission (the Commission) upholding the plaintiff-appellant's termination from employment by the defendant-appellee, the Louisiana Department of Public Safety and Corrections (the Department). We affirm.
The plaintiff, David Anderson, was employed as a corrections sergeant with permanent status assigned to Avoyelles Correctional Center (AVC), a medium-security correctional facility operated by the Department. During the time period at issue in this matter, he was assigned to the Unit 1 D-Team, working the 5:45 p.m. to 6:00 a.m. shift.
In October 2006, approximately 18 inmates tested positive for illegal drug usage. Prior to that time, one or two positive drug tests per month were typical, with the highest monthly amount being six. Inmate informants advised prison officials that "some dirty free folk — officers" were the source of the drugs, but no specific information as to the identity of the officers was provided, other than the suggestion they were "shift employees." AVC's Chief of Security, David Bonnette, thereupon devised a system to conduct random general searches of the facility's corrections officers. The task of selecting the corrections officers to be searched under that system was assigned to the two Assistant Wardens. The Assistant Wardens used their discretion to select names from each shift roster, with the intention that all corrections officers would eventually be searched. The weekly list of officers to be searched was delivered to the shift captain, who was responsible for ensuring that the general searches were conducted.
Department Regulation (DR) C-02-004 (adopted December 15, 1992) provides for five categories of personal searches of employees, each successively more intrusive: (1) pat-down searches, (2) general searches, (3) strip searches, (4) visual body cavity searches (strip searches with genital examination), and (5) body cavity searches. DR C-02004(6)(C)(2) defines a general search as follows:
General Search: A search whereby a person is required to remove his clothing down to his underwear, in order that his clothes may be inspected for contraband and his person be observed. This search shall be conducted in a private place, by another employee of the same sex, out of the view of persons other than those conducting the search.
DR C-02-004(6)(C)(3) defines a strip search as follows:
Strip Search: A visual search of a person's nude body, conducted by employees of the same sex as the employee being searched, in a private place, out of the view of persons other than those conducting the search. The person being searched may be required to bend over, squat, turn around, raise his arms, and lift the genitals. (The foregoing list is exemplary, not exclusive.) The clothing of the person being searched shall be thoroughly searched prior to returning it. (Emphasis supplied.)
DR C-02-004(7)(C) and (D) specify the permissible conditions for under which these two types of searches may be conducted:
C. General Search: General searches may be conducted without cause, with the approval of the Unit Head, his Deputy, his Assistant, or their designees.
D. Strip Search: When there is reasonable suspicion directed toward a particular employee, a strip search may be conducted. The Unit Head, his Deputy, his Assistant, or their designees must approve. Random strip searches of employees are PROHIBITED. Strip searches of groups of employees are prohibited absent reasonable suspicion directed toward the entire group. Strip searches of employees should be conducted by one officer and witnessed by one additional officer or staff member. All such searches shall be conducted by persons of the same sex as the employee(s) being searched.
Avoyelles Correctional Center (AVC) Policy No. 02-05-007 provides, in pertinent part:
I. GENERAL
A. Unless authorized by the Warden or his designee in consultation with the Unit Managers, ... employees will only be subjected to property and or [sic] pat-down searches. ANY OTHER SEARCHES WILL BE CONDUCTED IN ACCORDANCE WITH D.R. C-02-004, SEARCHES OF EMPLOYEES ...
...
IV. EMPLOYEES
A. Random, unannounced searches of employees, their personal property, and their vehicles will be conducted on a routine basis. All AVC ... employees are subject to these searches.
B. Searches will consist of any combination of pat searches, searches of belongings, metal detector, and vehicle searches, and may involve the use of narcotic detection dogs independently or in conjunction with the drug detection booth.
About three or four weeks prior to November 8, 2006, plaintiff and other officers on his shift were advised at roll call of the institution of the random general search system. Plaintiff voiced his objection to that search system and advised his shift captain that he would not submit to a general search.
About a week prior to November 8, 2006, the members of the Unit 1 D-Team then present, with the exception of a lieutenant, were subjected to general searches. Plaintiff was not on duty that day. On November 8, 2006, plaintiff's name and those of two other Unit 1 D-Team members, out of 25 members on duty, were selected for purposes of a general search. Plaintiff refused to submit to a general search of his person and clothing. He was instructed to leave the facility. By letter dated December 4, 2006, the warden notified plaintiff that his employment was terminated effective December 11, 2006, based upon his insubordination and aggravated failure to follow orders.
Plaintiff appealed his termination to the Department of State Civil Service. A hearing before a referee was conducted on May 21, 2007. On July 6, 2007, the referee upheld the termination and denied the appeal. The referee's decision became the final decision of the Commission, and plaintiff now appeals.
Plaintiff does not challenge the referee's factual conclusions. Rather, he challenges the referee's legal conclusions only. The issues presented are whether a "general search" without reasonable suspicion that the individual employee was engaged in illegal concealment was authorized by the Department's regulations; whether a "general search" requires such reasonable suspicion to be constitutionally valid under the fourth amendment; and whether the manner by which plaintiff was selected for the general search was truly random, reasonable, and non-arbitrary. Plaintiff contends that the referee erred in resolving these issues in favor of the legality of the proposed search, and in thereby concluding that plaintiff failed to obey a lawful order and that there was legal cause for his termination.
Plaintiff contends that AVC No. 02-05-007(IV)(A) and (B), read together, preclude random, unannounced general searches, as general searches are not included in the types of searches mentioned in AVC No. 02-05-007. If AVC No. 02-05-007(IV)(B) is to be read literally, it would supersede and effectively abrogate DR No. C-02-004(7)(C). Such a reading would lead to an absurd result, considering that AVC No. 02-05-007 itself repeatedly refers to DR No. C-02-004, which clearly authorizes general searches "conducted without cause," provided they are approved by a proper supervisory officer of the facility. Rather, AVC No. 02-05-007(IV)(B) must be read together with Paragraph 1(A). Doing so, we conclude that the provisions are readily reconciled. In addition to the usual property and patdown searches, AVC No. 02-05-007(1)(A) unequivocally authorizes any other type of search of employees described in DR No. C-02-004, if "authorized by the Warden or his designee in consultation with the Unit Managers." The phrase "conducted without cause" does not preclude a general search conducted on a random basis. Plaintiff's assignment of error on this issue is without merit.
The fourth amendment to the U.S. Constitution and the corresponding provision of Louisiana's constitution, Article I, § 5, prohibit only "unreasonable searches." The U.S. Supreme Court has explained:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it 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. A detention facility is a unique place fraught with serious security dangers.
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).
In terms of the invasion of personal rights, a search's intrusion must be viewed in the context of the individual's legitimate expectation of privacy. Allegheny County Prison Employees Indep. Union v. County of Allegheny, 315 F.Supp.2d 728, 737 (W.D.Pa.2004). The test for determining the legitimacy of an expectation of privacy involves both subjective and objective considerations: "[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" Katz v. U.S., 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). In cases...
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