McDonell v. Hunter

• Decision Date: 24 February 1987
• Docket Number: No. 85-1919,85-1919
• Parties: , 1 Indiv.Empl.Rts.Cas. 1297 Alan F. McDONELL, M. Lee Curran; and Sally Phipps, Individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER; Jean Sebek; Russell Behrends and Harold Farrier, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1302

809 F.2d 1302

55 USLW 2392, 1 Indiv.Empl.Rts.Cas. 1297

Alan F. McDONELL, M. Lee Curran; and Sally Phipps Individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER; Jean Sebek; Russell Behrends and Harold Farrier, Appellants.

No. 85-1919.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1986.

Decided Jan. 12, 1987.

Rehearing and Rehearing En Banc Denied Feb. 24, 1987.

Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.

Mark W. Bennett, Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, and ROSS and WOLLMAN, Circuit Judges.

ROSS, Circuit Judge.

This is a class action challenging the constitutionality of an Iowa Department of Corrections policy under 42 U.S.C. Sec. 1983. This policy subjects the correctional institution employees to searches of their vehicles and of their persons, including urine, blood, or breath testing, upon the request of Department officials. The named plaintiffs are Alan McDonell, Lee Curran, and Sally Phipps. The certified class consists of all individuals employed by the Iowa Department of Corrections at its various institutions who are covered by the Department's search policy.

The district court ¹ enjoined Department of Corrections officials and their agents from enforcing this search policy except in certain limited circumstances, unless the search is based upon a reasonable suspicion. We affirm the district court's order as herein modified.

I. Facts

Plaintiff McDonell was employed as a correctional officer first at the Men's Reformatory at Anamosa (Anamosa) and later at another correctional institution. Plaintiffs Curran and Phipps, at all times material to this action, were employed at the Iowa Correctional Institution for Women at Mitchellville (Mitchellville).

Defendant Hunter is the Superintendent and chief executive officer of Mitchellville. Defendant Sebek is the Security Director of Mitchellville, and is responsible for the implementation and enforcement of the Department's policy. Defendant Behrends is the Acting Deputy Warden of Anamosa, and is responsible for the implementation of the Department's policy. ² Defendant Farrier is Director and chief administrative officer of the Iowa Department of Corrections, and is responsible for the supervision and operations of Anamosa, Mitchellville, and other correctional institutions.

When McDonell was employed at Anamosa in 1979, he signed a consent to search form. ³ In January 1984 the supervisory personnel at Anamosa requested McDonell to undergo urinalysis because he had been seen with individuals who were being investigated for possible drug-related activities. McDonell refused and as a result his employment was terminated. Shortly thereafter he was reinstated with loss of ten In August of 1983, employees at Mitchellville were presented a search consent form ⁴ to sign. Plaintiffs Curran and Phipps refused to sign. While there was disputed evidence that these employees were told that if they did not sign, they would not receive their paychecks, they did in fact receive paychecks and they have not been discharged or disciplined for refusing to sign.

days' pay and was transferred to another institution.

Plaintiffs sought declaratory and injunctive relief on behalf of themselves and the class ⁵ they represented, claiming the policy ⁶ violates the fourth amendment to the United States Constitution and plaintiffs' constitutional right to privacy.

A preliminary injunction was issued in February 1984. On appeal it was affirmed. McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984). In July 1985, the district court issued its final order 612 F.Supp. 1122. The district court held that searches of correctional employees, including urinalyses, and of their vehicles may be made only on the basis of reasonable suspicion, with certain specified exceptions. ⁷ The district court found that the policy challenged here was designed to serve security requirements at the state's correctional facilities, but that the employees had legitimate, although diminished, expectations of privacy while in the correctional institution. The court balanced the state's interest in security against the infringement upon the individual employee's right to privacy and determined that reasonable suspicion, rather than probable cause, was the appropriate standard for conducting strip searches and urinalyses of employees. The district court order allows vehicle searches within the confines of the institution to be conducted uniformly or by systematic random selection. Searches of employees' vehicles within the institution's confines, other than uniformly or by systematic random selection were permitted only on the basis of a reasonable suspicion.

II. Searches

The fourth amendment to the United States Constitution provides that:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The basic purpose of the fourth amendment, which is enforceable against the states through the fourteenth amendment, New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985), is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials," Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a "standard of 'reasonableness' upon the exercise of discretion by government officials." Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). "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." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60

                L.Ed.2d 447 (1979).   See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983);  Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396
                

A. Strip Body Searches

Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches of corrections officers based on mere suspicion. Defendants also argue that plaintiffs have no reasonable expectations of privacy within the institutions in light of their signing consent forms.

Correctional institutions are unique places "fraught with serious security dangers." Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884. Within the walls of the correctional institution, "a central objective of prison administrators is to safeguard institutional security." Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). To achieve this goal prison administrators have the responsibility "to intercept and exclude by all reasonable means all contraband smuggled into the facility." Id.

In analyzing the intrusion on the individual's fourth amendment interests, there must be a legitimate expectation of privacy. To determine if an individual's expectation of privacy is legitimate, there must be both an actual subjective expectation and, even more importantly, Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984), that expectation must be one which society will accept as reasonable. ⁸ Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

While correction officers retain certain expectations of privacy, it is clear that, based upon their place of employment, their subjective expectations of privacy are diminished while they are within the confines of the prison. Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 202 (2d Cir.1984). We believe that society is prepared to accept this expectation of privacy as reasonable although diminished "in light of the difficult burdens of maintaining safety, order and security that our society imposes on those who staff our prisons." Id.

The Supreme Court has held that warrantless searches "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz, supra, 389 U.S. at 357, 88 S.Ct. at 514. Exceptions have been made "where a legitimate governmental purpose makes the intrusion into privacy reasonable." Carey, supra, 737 F.2d at 203.

In light of the legitimate governmental interest in maintaining security at correctional institutions, it is our view, as it is that of the Second Circuit, that a reasonable suspicion standard should be adopted for strip searches of correction officers while working in correctional facilities. Id. at 204. As this court stated in Hunter v. Auger, supra, "[w]e believe that this standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers." Hunter v. Auger, supra, 672 F.2d at 674.

A reasonable suspicion standard has been upheld as the appropriate standard for conducting body searches of (1) prison visitors: Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); Hunter v. Auger, supra, 672 F.2d at 674; (2) persons at the country's borders: United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir.1978); United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978); (3) arrestees: Jones v. Edwards, 770 F.2d 739 The reasonable suspicion standard requires officials to base strip searches on specific objective facts and...