Burns v. Loranger

• Decision Date: 07 March 1990
• Docket Number: No. 89-2103,89-2103
• Citation: 907 F.2d 233
• Parties: Karen BURNS, Plaintiff, Appellant, v. David LORANGER, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 233

907 F.2d 233

Karen BURNS, Plaintiff, Appellant, v. David LORANGER, et al., Defendants, Appellees.

No. 89-2103.

United States Court of Appeals First Circuit.

Heard March 7, 1990.

Decided June 29, 1990.

James B. Haddow with whom Professional Resource Associates, P.A., Craig J. Rancourt and Law Offices of Craig J. Rancourt were on brief, for plaintiff, appellant.

Mary Kahl, Mary Tousignant and James Boone with whom Edward Caron and Caron and Boone were on joint brief, for defendants, appellees David Loranger, Priscilla Murray and the City of Saco.

Before CYR, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

CYR, Circuit Judge.

After Karen Burns was subjected to a warrantless strip search by a local police officer acting under color of state law, she brought the present civil rights suit under 42 U.S.C. Sec. 1983 to redress alleged violations of her fourth amendment rights. The United States District Court for the District of Maine entered summary judgment in favor of the defendant police officers on their qualified immunity claims and dismissed the companion section 1983 claim against the City of Saco. ¹ We affirm.

I FACTS

On October 3, 1986, defendants David Loranger and Priscilla Murray, attached to the York County Cocaine Task Force, attended a briefing of law enforcement officers who were to participate in the execution of five search warrants later that evening. The warrants were read aloud at the briefing, and the officers were alerted that there would be strip searches. The Chief Deputy Sheriff of the York County Sheriff's Department instructed Deputy Sheriff Murray to remain on call to assist with any female suspects.

Plaintiff Burns was strip-searched during the execution of a warrant to search the Daniel Guarino residence. ² The police had made two controlled drug buys from Guarino at his residence; one about a month before the search, the other the day before the search. For approximately two hours immediately prior to the execution of the search warrant, the police followed a car which was being driven by Guarino in the company of Burns. At one point the police saw the Guarino car stop at the residence of Gene Michaud, a known cocaine Sergeant Loranger of the Saco Police Department was assigned to the Guarino residence search party. Loranger saw Guarino and Burns enter the Guarino residence together at about 10:30 p.m. Shortly thereafter Michaud entered the Guarino residence, followed a few moments later by the police, search warrant in hand. Immediately upon entering, Loranger saw Michaud, Guarino and Burns standing near, and facing, one another, at the kitchen table; Loranger saw Guarino handing cash to Michaud as Michaud gave Guarino a small plastic baggie containing cocaine. Michaud ran to another door, but was blocked by other officers entering the premises. Guarino and Michaud were arrested, handcuffed, searched, and later removed from the premises. ³ The ensuing searches disclosed approximately $6,000 in cash, small amounts of cocaine and hashish, drug records, and drug paraphernalia. ⁴

dealer, and watched as Guarino entered the Michaud residence.

All members of the search party were male police officers. Before being strip-searched, Burns twice asked if she could use the bathroom, but was refused permission to do so. Burns states that Sergeant Loranger summoned Deputy Sheriff Priscilla Murray to 20 Staples Street to conduct the strip search. ⁵ Soon after Murray arrived at the Guarino residence she escorted Burns to a private bedroom where she conducted a visual strip search, with no one else present. No body cavity search was performed. The only tactile contact occurred when Murray searched plaintiff's coiffure for contraband; none was found. ⁶

II DISCUSSION

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that "government officials performing discretionary functions [ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." More recently, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Court refined the appropriate qualified immunity inquiry in a civil rights action against a law enforcement officer involved in a warrantless premises search.

The contours of the right [allegedly violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Id. at 640, 107 S.Ct. at 3039 (citation omitted).

Thus, appellate assessment of a qualified immunity claim is apportioned into two analytic components. First, if the right asserted by the plaintiff was "clearly established" at the time of its alleged violation, we are required to assume that the right was recognized by the defendant official see Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Rodriguez v. Comas, 888 F.2d 899, 901 (1st Cir.1989); second, we will deny the immunity claim if a reasonable official situated in the same circumstances should have understood that the challenged conduct violated that established right, see Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039; Rodriguez, 888 F.2d at 901.

Clearly Established Law

At the time of the constitutional violation asserted in the present case, clearly established fourth amendment law entitled Burns to be free from any unreasonable search of her person. Blackburn v. Snow, 771 F.2d 556, 569 (1st Cir.1985) ("It can hardly be debated that ..., in 1977, [there was] a 'clearly established' Fourth Amendment right to be free of unreasonable [strip] searches."). Then, as now, however, a warrantless search was permissible, in exigent circumstances, where there was probable cause to believe that evidence would be found, United States v. Moore, 790 F.2d 13, 15 (1st Cir.1986) (decided May 9, 1986), unless the scope of the search did not comport with the justification for its inception, New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985).

Objective Reasonableness

We weigh the objective reasonableness of the challenged conduct of the defendant officers against the clearly established fourth amendment strictures governing warrantless searches in the actual circumstances confronting the officers. ⁷ Moore, 790 F.2d at 15.

A. Probable Cause

There was probable cause to search Burns if, " 'given all the circumstances, there [was] a fair probability that contraband or evidence [would] be found....' " Moore, 790 F.2d at 15 (quoting United States v. White, 766 F.2d 22, 25 (1st Cir.1985)). " 'In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949)).

Upon witnessing the commission of a felony offense in Burns' immediate presence, Sergeant Loranger possessed sufficient reliable information to support an objectively reasonable belief that there was a fair probability that readily-disposable incriminating evidence would be found on her person. See Moore, 790 F.2d at 15. Burns was in the immediate presence of Guarino and Michaud, both known drug dealers, as they exchanged money for cocaine. The police possessed information that Guarino's girlfriend was a seller and user of drugs. Earlier that day, Burns and Guarino had been riding around together for more than two hours. They had left the Michaud residence just minutes before Michaud appeared at the Guarino residence. On two previous occasions the police had made controlled drug buys from Guarino at the same premises, one only twenty-four hours earlier.

Despite the absence of any eyewitness evidence that Burns left Guarino's car, or that Michaud was at home, when Guarino entered Michaud's house, and notwithstanding her quarrel with the magistrate's finding that she was Guarino's girlfriend, we cannot ignore an entire amalgam of forceful inferences reasonably drawn from the uncontroverted circumstantial evidence: that she had been riding around in Guarino's car for an extended period of time before Guarino stopped at Michaud's home; that very soon thereafter all three were seen in Guarino's kitchen as Guarino and Michaud openly conducted a felonious cocaine distribution in her immediate presence; that on the kitchen table in front of them there was a mirror with cocaine residue; that a packet of cocaine was found on the kitchen floor; and that the premises search, and the searches of Michaud and Guarino, disclosed hashish, a substantial amount of cash, and drug paraphernalia.

Thus, it cannot be said that this was an attempt to predicate probable cause on a suspect's mere presence at the scene of the crime. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.... [Probable cause to search a person] must be supported by probable cause particularized with respect to that person.") (emphasis added).

Therefore, we conclude, as a matter of law, that an objectively reasonable police officer in these circumstances could determine that there was a fair probability that Burns was either a drug dealer, or a drug user, on whose person a controlled substance would be found. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039 ("The...