Brown v. Polk Cnty., No. 19-2698

• Decision Date: 13 July 2020
• Docket Number: No. 19-2698
• Citation: 965 F.3d 534
• Parties: Sharon Lynn BROWN, Plaintiff-Appellant, v. POLK COUNTY, WISCONSIN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

965 F.3d 534

Sharon Lynn BROWN, Plaintiff-Appellant,

v.POLK COUNTY, WISCONSIN, et al., Defendants-Appellees.

No. 19-2698

United States Court of Appeals, Seventh Circuit.

Argued April 28, 2020

Decided July 13, 2020

Rehearing and Rehearing En Banc Denied August 18, 2020

Vincent J. Moccio, Attorney, Bennerotte & Associates, P.A., Eagan, MN, for Plaintiff-Appellant.

Danielle Baudhuin Tierney, Attorney, Axley Brynelson LLP, Madison, WI, for Defendants-Appellees.

Before Easterbrook, Ripple, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Sharon Brown was a detainee at the Polk County Jail who underwent a physical search of her body cavities. The institution had a written policy authorizing such a search to be conducted by medical personnel when there was reasonable suspicion to believe an inmate was internally hiding contraband. Fellow inmates had reported that Brown was concealing methamphetamine inside her body, and that prompted jail staff to invoke the policy. Officers took Brown to a hospital, where a doctor and nurse inspected both her vagina and rectum. The search revealed no drugs.

Brown sued Polk County and several jail officials under 42 U.S.C. § 1983 alleging a violation of her Fourth Amendment rights. The defendants moved for summary judgment, and the district court granted the motion, concluding that the defendants had reasonable suspicion that Brown was concealing contraband, their suspicion justified the cavity search, and the ensuing search was reasonable. We agree and affirm.

I

Sharon Brown landed in the Polk County Jail in May 2017 after an arrest for shoplifting. The record does not reveal whether a judge ordered the detention or whether Brown was held while awaiting an initial presentment in court. The next day, Jacqueline Duke, an inmate who shared her housing unit, told Correctional Officer Steve Hilleshiem that Brown was hiding "a large amount" of methamphetamine in a body cavity. Officer Hilleshiem had little background information—he did not know Duke or Brown, what either inmate was in for, or whether they had any relationship—but he relayed the allegation to Nurse Donna Johnson, who was more familiar with Duke.

Nurse Johnson's prior dealings with Duke had left her untrusting of her word, so she decided to consult Amy Nelson, who she considered to be a more reliable inmate living in the unit. Nelson corroborated Duke's accusation with more detail. She said Brown had told other inmates that she was hiding between a quarter gram and an "eight ball"—which amounts to about 3.5 grams—of methamphetamine inside her body. According to Nelson, the drugs were not sealed properly, so Brown had been looking for somewhere else to hide them. Nelson further reported that she had seen Brown use the bathroom multiple times and that other inmates were worried.

Nurse Johnson discussed the situation with Officer Hilleshiem and other staff members, and the group collectively decided to request a cavity search. Polk County has a policy that allows a detainee's body cavities to be searched when an officer has "reasonable grounds to believe that the person is concealing weapons, contraband, or evidence in a body cavity, or otherwise believes that the safety and security of the jail would benefit from a body cavity search." The policy defines "body cavity search" as "an inspection and penetration of the anal or vaginal cavity of a person that is conducted manually, by means of an instrument," or "in any other manner." It further provides that the search must "be performed only by medical personnel licensed in the State of Wisconsin." Officer Hilleshiem contacted Chief Deputy Wes Revels, the jail's administrator, for approval and expressed his view that officials had gathered enough evidence to justify a search under the policy. Based on those representations, Chief Deputy Revels authorized the search.

Officers took Brown to a local hospital, where a doctor and nurse performed the search in a private room without any officers present. The doctor first administered an ultrasound of Brown's abdomen. The procedure revealed no contraband. He then conducted a vaginal exam by inserting a speculum to spread and hold open the vaginal walls to see inside. This exam was brief and similar to a routine pelvic exam

or a pap smear. The rectal exam began in much the same manner—the doctor used a speculum to widen the anus and peer inside. But during the procedure, the doctor's headlamp failed. With the speculum remaining in her anus, Brown had to wait while the doctor looked for an alternate light source. In the end, the search yielded no contraband.

The parties dispute how long these exams lasted. Brown testified that the ultrasound took about five minutes and the vaginal exam "didn't take long at all." As for the rectal exam, Brown did not say how long it lasted but explained that when the doctor's headlamp failed, "it seemed like it took forever for them to find a light that worked." For their part, the defendants point to the testimony of a police officer who transported Brown from the jail to the hospital. He estimated that "under a minute" elapsed between the time the medical personnel entered the room and when Brown left.

Brown sued the County, Officer Hilleshiem, and Chief Deputy Revels. She contended that the Fourth Amendment requires jail officials to get a warrant based on probable cause before ordering a body cavity search and that the defendants’ failure to do so violated her constitutional rights. And because the jail's express policy permitted that practice, she sought to hold the County liable under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The defendants successfully moved for summary judgment. The district court concluded that the Fourth Amendment requires reasonable suspicion to justify the kind of search Brown underwent and that the officers had just that. The court also found the search to have been conducted reasonably, as it was performed by medical professionals in a private, hygienic location and lasted only a short time. Finding no constitutional violation, the court concluded that the Monell claim failed too.

Brown now appeals.

II

Incarceration curbs constitutional protections but it does not extinguish them. See Turner v. Safley , 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Among a pretrial detainee's retained but limited rights is the Fourth Amendment's guarantee of "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." The inspection of Brown's body cavities was a search to which the Fourth Amendment applies, and the defendants are wise to leave that undisputed. See Florence v. Bd. of Chosen Freeholders of County of Burlington , 566 U.S. 318, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (applying the Fourth Amendment to a strip search of a pretrial detainee).

But the Fourth Amendment does not prohibit all searches, only unreasonable ones. See Maryland v. King , 569 U.S. 435, 446–47, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013). We evaluate reasonableness by balancing "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, 60 L.Ed.2d 447 (1979). In doing so, we 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." Id.

Summary judgment is appropriate only if the defendants have shown that no material facts are in dispute and they are entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a). We review de novo the district court's grant of summary judgment, viewing all facts in the light most favorable to Brown and drawing all reasonable inferences in her favor. See Hackett v. City of S. Bend , 956 F.3d 504, 507 (7th Cir. 2020).

A

Our usual starting point for the reasonableness inquiry is whether government officials had "some quantum of individualized suspicion" necessary to justify the search. King , 569 U.S. at 447, 133 S.Ct. 1958 (quoting United States v. Martinez–Fuerte , 428 U.S. 543, 560–61, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) ). But individualized suspicion is not an "irreducible" constitutional mandate. Id . Suspicionless searches are permitted in limited circumstances, like when they serve "special needs, beyond the normal need for law enforcement." City of Indianapolis v. Edmond , 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Indeed, twice the Supreme Court has confronted circumstances under which the special context of a jail—with the unique challenges it presents—allows for suspicionless searches of pretrial detainees’ body cavities.

In Bell v. Wolfish , the Court upheld the constitutionality of a jail policy requiring all inmates to undergo a strip search, including a visual examination of their body cavities, every time they returned from a contact visit. 441 U.S. at 558–60, 99 S.Ct. 1861. In so holding, the Court emphasized the government's interest in performing such searches, observing that "[a] detention facility is a unique place fraught with serious security dangers" and "[s]muggling of money, drugs, weapons, and other contraband is all too common an occurrence." Id . at 559, 99 S.Ct. 1861. Even pitted against the significant privacy invasion that these searches posed to the inmates, the gravity of the jail's security interests nevertheless tipped the scale away from a particularized suspicion requirement and instead counseled in favor of a broader, categorical rule authorizing visual strip searches following contact visits. See id . at 560, 99 S.Ct. 1861.

The Supreme Court reinforced this holding in Florence v. Board of Chosen Freeholders of the County of Burlington , rejecting a Fourth Amendment challenge to a jail policy that authorized an invasive search, which again included visual inspections of body openings, during the intake process for pretrial detainees. 566...