Brent v Ashley, 11
| Decision Date | 01 May 2001 |
| Docket Number | 9912169,11 |
| Parties | Rhonda BRENT, Plaintiff-Appellee-Cross-Appellant, v. Odesta ASHLEY, Carl Pietri, et al., Defendants-Appellants-Cross-Appellees.United States Court of Appeals, Eleventh Circuit |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Southern District of Florida. (No. 94-00646-CV-WDF), Wilkie D. Ferguson, Jr., Judge.
Before BARKETT and WILSON, Circuit Judges, and GEORGE1, District Judge.
In this interlocutory appeal, Prospero Ellis and Seymour Schor, both United States Customs Service inspectors, appeal the denial of their motion for summary judgment based on qualified immunity in an action filed by Rhonda Brent alleging violation of her Fourth Amendment rights during a strip search and x-ray examination. Brent cross-appeals the district court's grant of summary judgment on the basis of qualified immunity to Ellis and Schor's subordinates, Odesta Ashley, Carl Pietri, Francine Williams, Ricky Grim, Kathryn Dellane, and Lee Sanchez-Blair. We affirm.
In reviewing summary judgment, we are bound to consider all of the evidence and the inferences drawn in the light most favorable to the non-moving party.2 Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). On July 20, 1991, Rhonda Brent, a United States citizen, was returning home to Houston, Texas, aboard Alitalia Flight 618 from a vacation in Nigeria. During the Rome to Miami leg of her return flight, Brent met Kehinde Elbute, a black Nigerian man who was also en route to Houston. Brent and Elbute were the only black persons on the flight. The flight arrived at Miami International Airport and the passengers disembarked from the plane. As Brent entered the baggage claim area at the airport, she noticed Customs Agent Ricky Grim and his inspection dog with Elbute. Brent stopped briefly, observed Grim searching Elbute and his luggage, and shook her head in disapproval. Based on this look and gesture, Inspector Seymour Schor instructed Inspector Carl Pietri to detain Brent and escort her to the examination area where Elbute had been taken. Pietri seized Brent's passport and other documents, isolated her from other passengers and took her to the examination area for interrogation. Brent protested Pietri's actions, alleging that she was being singled out because she was black.
Schor questioned both Brent and Elbute about the nature of their trips and personally conducted a thorough search of both of their luggage, in which he took every item out of their bags and examined each item separately and carefully. He found no narcotics, nor did he find any items commonly associated with drug couriers. Brent continued to protest the search stating that she was aware of her rights and that she was being treated this way because she was black. Despite finding no objective evidence that she was a drug courier, Schor continued to detain Brent for further questioning.
Shortly thereafter, Schor was joined by Supervisor Inspector Prospero Ellis. Ellis re-examined Brent's travel documents, clothing and luggage, and questioned her. Both Ellis and Schor then decided to conduct a full body pat-down and strip search. The report form filed by the agents at the time of the search indicated that the reasons for conducting the search were Brent's nervousness and her arrival from a source country.3 Female customs agents Odesta Ashley, Lee Sanchez-Blair and Kathryn Dellane were called in to assist.
The body pat-down and strip search, conducted by Blair and witnessed by Ashley and Dellane, consisted of touching Brent's crotch area, ordering her to pull down her clothes, removing and examining her sanitary napkin, squeezing her abdomen from the pubis to thorax, and monitoring her responsive reactions. The search revealed none of the typical indicators of internal drug smuggling. There was no rigid or distended abdomen, no girdle to hold up the abdomen, no synthetic lubricants, and no contraband could be seen in her body cavities. After the strip search, Brent asked if she could use the bathroom. She was allowed to use the bathroom, but was watched closely by the female agents and told not to flush the toilet. After she had gone to the bathroom, the agents examined Brent's urine for signs of contraband. None were found. At some point during her detention, Brent's name was entered into the Treasury Enforcement Computer Systems to search for frequent travels or past arrests. The inquiry returned nothing suspicious.
Although the pat-down, strip search, and electronic record search revealed nothing, Ellis and Schor nonetheless decided that an x-ray and pelvic examination at the hospital should be performed. The search report form filed the day after the x-ray listed the reasons for conducting the examination as Brent's nervousness and her arrival from a source country. Dellane handcuffed Brent and transported her to Jackson Memorial Hospital. Prior to transport, Brent was presented with a consent form and told that if she refused to sign it she could be held for 35 days or indefinitely until a judge ordered the x-ray. She requested to speak with an attorney and to call home. Both requests were denied. She signed the consent form and waived her Miranda rights after being told she had no choice. Upon arrival at the prison ward of the hospital, Brent was told to sign another consent form. Inspector Francine Williams escorted Brent to the x-ray room and remained with Brent throughout the examination. The examination revealed a complete absence of drugs. Dellane drove Brent back to the airport and, ten hours after she was first detained, made arrangements for Brent to return home to Houston. Brent filed this suit against the United States under the Federal Tort Claims Act ("FTCA") and against nine named customs employees, alleging the commission of common law torts and constitutional violations pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court dismissed with prejudice Brent's FTCA claim for failure to file the action within the statutory time limits. The individual defendants then moved for summary judgment on Brent's Bivens claims based on qualified immunity. The district court granted the motion with regard to Ashley, Pietri, Williams, Grim, Sanchez, Dellane, and Sanchez-Blair, and denied the motion as to Ellis and Schor. This appeal followed.4
We review de novo a district court's ruling on summary judgment, applying the same legal standards as the district court. See Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir.1999). Summary judgment is appropriate only when the evidence before the court demonstrates that "there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
"A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (internal quotations omitted); see also McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir.1999) () (quoting Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)).5 Thus, we address initially the question of whether Ellis and Schor's actions violated Brent's constitutional rights.
Rather than viewing the initial stop, strip search and x-ray examination of Brent as a single incident, the facts of this case compel that each progressive stage of the search be viewed as a discrete occurrence. Accordingly, in determining whether Brent has met her burden to demonstrate the existence of a constitutional violation, we examine the constitutionality of the initial stop, the strip search and the x-ray examination separately.
During the initial stop of Brent, the customs agents isolated Brent from the other passengers, asked her questions about the nature of her trip, and searched her luggage. The decision to stop and search Brent was based upon the fact that she shook her head in disapproval upon seeing the way customs agents were treating a co-passenger. Brent argues that a simple expression of disapproval cannot provide reasonable suspicion sufficient to justify the stop and search and thus the initial stop is constitutionally infirm.
We agree with Brent that her simple disapproving head movement is insufficient to raise reasonable suspicion; however, the law is clear that "[r]outine [border] searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ..." United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985); see United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir.1984). Because the initial stop did not constitute more than a routine border search, Brent has failed to demonstrate that the initial stop violated her Fourth Amendment rights.
The Supreme Court has held that "detention of a traveler at the border, beyond the scope of routine customs search and inspection, is justified at its inception if customs agents considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband ..." Montoya de Hernandez, 473 U.S. at 541, 105...
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