Watt v. City of Richardson Police Dept.

• Citation: 849 F.2d 195
• Decision Date: 15 July 1988
• Docket Number: No. 87-1302,87-1302
• Parties: Lynda L. WATT, Plaintiff-Appellee, v. CITY OF RICHARDSON POLICE DEPARTMENT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 195

849 F.2d 195

57 USLW 2114

Lynda L. WATT, Plaintiff-Appellee, v. CITY OF RICHARDSON POLICE DEPARTMENT, Defendant-Appellant.

No. 87-1302.

United States Court of Appeals, Fifth Circuit.

July 15, 1988.

D. Bradley Dickinson, Janetta S. Walls, M. Leigh Bartlett, Dallas, Tex., for defendant-appellant.

Douglas A. Larson, Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before GARWOOD and JONES, Circuit Judges, and BLACK ^*, District Judge.

EDITH H. JONES, Circuit Judge:

Lynda Watt was subjected to a strip search incident to her arrest for failure to license her dog in the City of Richardson, Texas. Understandably outraged by this incident, she filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 and recovered damages against the city. The district court concluded that a portion of the city's policy governing the conduct of visual strip searches violated the fourth amendment on its face and as applied to Watt. On appeal, the City of Richardson challenges only the district court's finding that the search was constitutionally invalid. We affirm the judgment, because a strip search was unconstitutional under the facts here presented, but we do not invalidate the city's policy. ¹

BACKGROUND

On March 3, 1985, Lynda Watt, accompanied by her 5-year-old son, was stopped by Officer Watson of the Richardson Police Department for operating a motor vehicle with an expired inspection sticker. Upon being informed that the automobile was borrowed from her mother's estate, Officer Watson decided only to issue a warning to Watt. The results of a routine computer check on Watt revealed, however, an outstanding arrest warrant issued for failure to register her dog in the City. Although this offense was punishable only by a fine, Watson was required to arrest Watt.

Watt cooperated politely with Officer Watson during the initial period of her short custody. She did not appear to be under the influence of drugs or alcohol. Watson's search of her purse revealed nothing unusual or suspicious. At the police station, Watt volunteered the necessary booking information, including the admission that in 1974 she had been convicted of a minor drug offense. This conviction had not appeared in the police computer search of her criminal record until she gave the police her surname from a previous marriage. ² Watt underwent a pat-down search.

At some point, Watt was informed that she must post a $160 cash bond, and not having the cash on hand, she called a neighbor to deliver the bond money and pick up her son from the police station. The police were aware that Watt's release would shortly be forthcoming.

Watt was then advised that because of her "criminal history" she must submit to a visual strip search pursuant to the city's policy which pertained to any arrestee detained on a weapons, shoplifting or drug charge, or who had a history of any such offense. Watt reacted like a "caged animal." Despite vigorous protests, she finally submitted to a strip search, including a visual body cavity inspection, by a female communications officer of the Richardson Police Department. The search complied with city policy, in that it was performed in a holding cell barren of windows or television cameras so that no one except the communications officer and her female trainee could observe. The strip search, like the previous searches, was negative.

Watt was placed in a jail cell for between five and ten minutes until she was released on bond. Approximately 54 minutes elapsed between her arrest and release.

ANALYSIS

Analysis of the city's strip search policy and of the actual search conducted on Watt begins, and practically ends, with the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Not the least significant of the Court's determinations in that case was its approval of a policy of a federal pretrial detention center in New York City that required strip searches of all detainees after they received contact visits from outsiders. The Court found this policy a reasonable means to prevent and deter the smuggling of contraband and weapons into the facility, where they could endanger both guards and prisoners. In so doing, it struck the fourth amendment balance in favor of deference to prison authorities' views of institutional safety requirements against the admittedly legitimate claims of inmates not to be searched in a humiliating and degrading manner. The Court explained its conclusion as consistent with the customary standards of fourth amendment jurisprudence:

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 558-559, 99 S.Ct. at 1884.

Following Bell, the courts of appeals have upheld prison strip search policies governing inmates where justified by the demands of institutional security. See, e.g., Hay v. Waldron, 834 F.2d 481 (5th Cir.1988); Goff v. Nix, 803 F.2d 358 (8th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 115, 98 L.Ed.2d 73 (1987); Arruda v. Fair, 710 F.2d 886 (1st Cir.), cert. denied, 464 U.S. 999, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983). Searches of minor offense arrestees who would be detained pending the posting of bond, often for short periods of time, have been scrutinized much more closely. Stewart v. Lubbock County, Texas, 767 F.2d 153 (5th Cir.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 604 (1986); Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied sub nom. Clements v. Logan, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). ³ Exemplary of these decisions is Stewart v. Lubbock County, 767 F.2d 153, in which this court invalidated a blanket strip search policy that had ensnared plaintiffs arrested for public intoxication and issuing a bad check. We held that, "Because Lubbock County's strip search policy was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband," the policy violated the fourth amendment. Stewart, 767 F.2d at 156 (emphasis added). The perhaps enigmatic phrase "category of offenders" was explained more fully by a Ninth Circuit decision which, reaching the same result as that in Stewart, described the fourth amendment standard affirmatively:

... we hold that arrestees charged with minor offenses may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual arrestee is carrying or concealing contraband. Reasonable suspicion may be based on such factors as the nature of the offense, the arrestee's appearance and conduct, and the prior arrest record. (citations omitted)

Giles, 746 F.2d at 617.

The Richardson strip search policy lies analytically between the prisoner and arrestee search cases, because it seeks to define the classes of offenders not yet incarcerated whose characteristics would suggest that they may pose a threat to prison security if they are not subjected to strip search. Richardson Police Department General Order 8.2-83 Sec. II(b)(3) provides in pertinent part:

3. A "strip search" will be conducted only on charges of narcotics, shop-lifting, weapons, and/or for a criminal history of each above charge. On special circumstances an arresting officer may request a strip search but he should be ready to articulate his reasons for such a request. This search will be made in a restroom area of the jail. At no time will a strip search be conducted in view of TV cameras or other officers of the opposite sex. ⁴

Watt does not challenge the propriety of strip searches conducted prior to incarceration on charges of narcotics, shoplifting or weapons violations. Such a challenge would be fruitless. See, e.g., Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1434 (10th Cir.1984), vacated on other grounds, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985); Giles, 746 F.2d 614; Dufrin v. Spreen, 712 F.2d 1084 (6th Cir.1983). Reasonableness under the fourth amendment must afford police the right to strip search arrestees whose offenses posed the very threat of violence by weapons or contraband drugs that they must curtail in prisons.

The issue on which Watt and the district court focused their attention was the validity of strip searches conducted because of an arrestee's criminal history of any such charge. ⁵ The district court found the "criminal history" basis for a strip search untenable because the policy could be applied "regardless of the infraction for which the arrest is made and no matter how ancient the 'criminal history.' " According to the district court, anyone arrested with a criminal history on a named charge, regardless of the disposition of the case, is liable to be strip searched. Even the term "criminal history", according to the district court, was so vague that the court believed, contrary to the defendants' testimony, it was not limited to convictions and arrests.

Although, as will be seen, we conclude that Ms. Watt's criminal history did not justify her strip search, we disagree with the district court's conclusion that the city's policy is too broad ever to justify strip searches of persons with a criminal history of narcotics, weapons or shoplifting violations. First, the wholesome principle that we must not decide constitutional cases not presented to us commands that we construe the Richardson...