Tardiff v. Knox County, Civil No. 07-10-P-H.

• Decision Date: 07 August 2008
• Docket Number: Civil No. 07-10-P-H.
• Citation: 573 F.Supp.2d 301
• Parties: Laurie TARDIFF, Plaintiff v. KNOX COUNTY, Defendant.
• Court: U.S. District Court — District of Maine

573 F.Supp.2d 301

Laurie TARDIFF, Plaintiff v. KNOX COUNTY, Defendant.

Civil No. 07-10-P-H.

United States District Court, D. Maine.

August 7, 2008.

William D. Robitzek, Paul F. Macri, Berman & Simmons, P.A., Lewiston, ME, for Plaintiff.

Peter T. Marchesi, William Gagne Holmes Wheeler & Arey, P.A., Waterville, ME, for Defendant.

DECISION AND ORDER ON SUMMARY JUDGMENT PART II: GRANTING PARTIAL SUMMARY JUDGMENT TO THE PLAINTIFF AS TO LIABILITY ON HER SECTION 1983 CLAIM AND DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

D. BROCK HORNBY, District Judge.

The plaintiff has sued Knox County under 42 U.S.C. § 1983 for what she claims was an unconstitutional strip and visual body cavity search conducted at the Knox County Jail in 2001. At the time, she had been arrested on a charge of witness tampering, a felony under the Maine Criminal Code.

The principal issues raised by these cross-motions for summary judgment on the merits of the § 1983 claim are whether Knox County Jail personnel had individualized reasonable suspicion for this search; or whether it occurred merely because County policy in 2001 required a strip and visual body cavity search of every arrestee charged with a felony who would not make bail; and, if the latter, whether that policy was unconstitutional. I conclude that the undisputed facts on the summary judgment record demonstrate that Jail personnel had no individualized reasonable suspicion for this search and that under First Circuit precedents Knox County's blanket search policy in 2001 for all unbailed felony arrestees was unconstitutional as applied to this plaintiff. I therefore GRANT partial summary judgment to the plaintiff on her § 1983 liability claim against Knox County. I DENY Knox County's motion for summary judgment. Damages remain to be determined.

FACTUAL BACKGROUND

Rockland District Court issued an arrest warrant for the plaintiff Laurie L. Tardiff ("Tardiff") on the charge "Tampering with a Witness," a class C crime (felony) under the Maine Criminal Code, 17-A M.R.S.A. § 454(1)(A)(2). See Pl. Laurie L. Tardiff's Statement of Material Facts, Ex. D ("Pl.'s SMF") (Docket Item 105).¹ Tardiff was arrested at her home. PL's SMF ¶ 1; Def.'s SMF ¶ 1. Before leaving her home, Tardiff emptied her pockets in front of the arresting officer. Pl.'s SMF ¶ 5; Def.'s SMF ¶ 5. Upon arriving at the Knox County Jail, she was patted down. Pl.'s SMF ¶ 6; Def.'s SMF ¶ 6.

A superior at Knox County Jail instructed female Corrections Officer Linda C. Simmons ("Simmons") to conduct a strip and visual body cavity search of Tardiff. Pl.'s SMF ¶ 8; Def.'s SMF ¶ 8. At that time (February 2001), Knox County Jail had a written policy that required a strip and visual body cavity search for all arrestees who would be unable to make bail, whenever there was reasonable suspicion that they were concealing contraband such as weapons or drugs, or whenever they were felony arrestees. Def.'s SMF ¶ 88; Pl.'s Response SMF ¶ 88 (Relevant portions of the policy are reproduced in Attachment A (the "Policy")).² As described by the Policy, a Knox County "strip search" is an unclothed search during which the body surfaces and cavities are visually inspected (often described in the caselaw as a "strip and visual body cavity search"). Simmons took Tardiff to a shower area and ordered her to disrobe, squat and cough three times, exposing her vaginal area and anal cavity.³ Pl.'s SMF ¶¶ 9-10; Def.'s SMF ¶¶ 9-10. No contraband was discovered. Pl.'s SMF ¶ 12; Def.'s SMF ¶ 12.

Tardiff was held overnight and released the next day. Def.'s SMF ¶ 78; Pl.'s Response SMF ¶ 78. During her detention, Tardiff remained in a cell separate from the Jail's general population. Pl.'s Resp. SMF ¶ 78.

PROCEDURAL BACKGROUND

On July 29, 2008, I granted in part and denied in part Tardiff's request for summary judgment on arguments that a previous class action controlled the outcome of this case. What remains on the parties' cross-motions for summary judgment is the constitutionality of the search and of the Jail's search policy.

ANALYSIS

Knox County devotes by far the greatest part of its legal argument to two primary assertions: "(1) Plaintiff does not have a cognizable Fourth Amendment privacy right on the facts of this case, and (2) even if she did, that right is limited or entirely circumscribed by a jail regulation which is rationally related to a valid penalogical and/or governmental interest." Def.'s Mot. for Summ. J. at 1, n. 1 (Docket Item 139).

Knox County's first argument, that Tardiff had no cognizable Fourth Amendment rights, cannot succeed at this trial court level. The First Circuit has held clearly that "convicted prisoners and pretrial detainees retain constitutional rights despite their incarceration, including basic Fourth Amendment rights against unreasonable searches and seizures." Roberts v. Rhode Island, 239 F.3d 107, 109 (1st Cir.2001) (citing Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)) (emphasis added); Swain v. Spinney, 117 F.3d 1, 5 (1st Cir.1997). I follow First Circuit precedents.

Knox County's second argument also seeks a change in First Circuit caselaw. It argues that I should apply the constitutional "rational basis" test from Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), a case involving prison regulations restricting mail correspondence among inmates and prohibiting inmates from marrying. But Turner did not address prison regulations that affect Fourth Amendment rights. I therefore follow First Circuit precedents concerning arrestee searches, precedents that are later than Turner.

(1) The First Circuit Standard

To determine whether a strip and visual body cavity search violates the Fourth Amendment in a detention setting, the First Circuit uses the balancing test that the Supreme Court articulated in Bell v. Wolfish:

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.

441 U.S. at 559, 99 S.Ct. 1861; Roberts, 239 F.3d at 110-113; Swain, 117 F.3d at 6-7. Applying Wolfish, the First Circuit has concluded that corrections officers must have a "reasonable suspicion" that an arrestee is concealing contraband or weapons before they can conduct a strip and visual body cavity search of that arrestee, "at least in the context of prisoners held in local jails for minor offenses." Roberts, 239 F.3d at 110 (describing the holding of Swain).

In Swain, a strip and visual body cavity search was performed in a local police station on an arrestee held on suspicion of shoplifting and possession of marijuana. 117 F.3d at 2-5. Using the Wolfish balancing test, the First Circuit emphasized the "severe if not gross interference with a person's privacy that occurs when guards conduct a visual inspection of body cavities." Id. at 6 (quoting Arruda v. Fair, 710 F.2d 886, 887 (1st Cir.1983)).⁴ On the other side of the balance in Swain, the First Circuit noted that "[t]here was no risk that [the arrestee] would come into contact with other prisoners, or be able to smuggle contraband or weapons into a secure environment." 117 F.3d at 8. The First Circuit concluded in Swain, therefore, that for local jails and minor offenses, "strip and visual body cavity searches [of an arrestee] must be justified by at least a reasonable suspicion that the arrestee is concealing contraband or weapons." Id. at 7.

About four years later, the First Circuit assessed the reasonable suspicion standard in the context of more serious institutional security concerns. In Roberts, an arrestee was taken into custody pursuant to an "outstanding body attachment" issued by a family court, apparently for a failure to appear for a judicial proceeding, a misdemeanor. 239 F.3d at 108 & n. 2, 112. He then was held at a "maximum security" Rhode Island facility that had a "lengthy history of contraband problems," where arrestees intermingled freely with the general prison population. See id. at 112. Upon arrival, a strip and visual body cavity search was performed on the arrestee pursuant to a blanket policy that required such a search of every person brought to the facility. Id. at 108-09 & n. 3.

Applying the Wolfish balancing test in Roberts, the First Circuit recognized that sometimes institutional security concerns "may provide a compelling reason for a warrantless strip search absent reasonable suspicion of individual wrongdoing." Id. at 110-11 (emphasis added). Intermingling arrestees with the general prison population presented a "serious security concern that weighs in favor of the reasonableness, and constitutionality, of the search," but alone was not dispositive. Id. at 112-13. Instead, in considering other factors related to security, the court distinguished the security threat that an arrestee presents upon initial detention from that posed by detainees after "contact with outside visitors":

Although [detained arrestees] certainly have the opportunity to introduce contraband to the prison, and may have even done so in the past, it is far less likely that smuggling of contraband will occur subsequent to an arrest (when the detainee is normally in handcuffed custody) than during a contact visit that may have been arranged solely for the purpose of introducing contraband to the prison population. Furthermore, after an arrest the ... authorities should be able to detect contraband on the person of a detainee without the need for a body cavity inspection. In addition, the deterrent rationale for the [Wolfish] search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration.

Id....