USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-2035

KELLI SWAIN,

Plaintiff, Appellant,

v.

LAURA SPINNEY, EDWARD HAYES, AND THE TOWN OF NORTH READING,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
___________________

____________________

Before

Stahl, Circuit Judge

_____________
Bownes, Senior Circuit Judge
____________________
and Lynch, Circuit Judge.
_____________

____________________

Michael Tyler,
_____________

with whom Michael Edward Casey was

_____________________

on brief,

appellant.
Douglas I. Louison,
___________________

with whom

Regina M. Gilgun and

__________________

Louison were on brief, for appellees.

_______

____________________

Merric
______

June 25, 1997

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

Kelli Swain was subjected to

a strip search and visual body cavity inspection, while being

held in

station.

a cell

his

North Reading,

This search occurred

cell for twenty

arrested.

in the

her,

after Swain had

been in the

minutes, and more than an hour after she was

She was arrested with her boyfriend as a result of

shoplifting; she

was

suspected of

small baggie of marijuana.

by

Massachusetts police

a police

having possessed

The search was ordered, she says,

officer immediately

while knowing she was

after he

had interrogated

represented by counsel.

He had

become angry with Swain for saying she knew nothing about her

boyfriend's shoplifting.

Swain's

boyfriend, who was also in

custody, whose shoplifting had triggered the arrests, and who

had an extensive criminal

record, including drug crimes, was

not

strip-searched.

The

charges

against

Swain

were

eventually nol prossed.

Swain brought suit under 42 U.S.C.

Gen.

Laws

ch. 12,

humiliated

her and

district court

11H,

caused

11I,

1983 and Mass.

alleging that

lasting emotional

granted summary judgment for

damage.

there were no material facts

which would support

Swain's claims that

the Fourth Amendment and

were not entitled to immunity.

The

the defendants.

The court held that

reasonable under

the search

in dispute

the search was

not

that the officers

We hold that, as

alleged by

Swain, a jury could find that the search was not justified by

-22

a reasonable suspicion,

and that

opportunity to resolve the

issue

of

whether

the

officers

were

her version

the

entitled

to

the

Swain fails, however, to

exacting standards for municipal

1983, even on

should have

factual disputes pertinent to the

protections of qualified immunity.

meet the

the jury

of the facts.

liability under

Accordingly,

the

judgment of the district court with respect to the individual

defendants is reversed, but the grant of

summary judgment as

to the Town of North Reading is affirmed.

I.

We

review the facts in the light most favorable to

Swain, the party opposing summary judgment.

Kelli

Swain and

her

boyfriend,

On May 18, 1993,

Christopher Milbury,

apartment hunting in the Danvers, Massachusetts area.

10:00

while,

a.m., after the couple

Milbury told

things at Moynihan

had been driving

Swain that

Lumber.

Milbury went into the

When Milbury got back,

Swain waited in

he placed a bag

lot.

Around

for a little

to pick

store; he was gone about

started to leave the parking

parking lot, Swain saw

he needed

went

up some

the car

while

ten minutes.

behind the seat

As they drove out

and

of the

Moynihan Lumber employees pointing at

the car; she

also saw a police cruiser pulling

into the lot

just as she and Milbury were pulling out.

Swain

became very

upset.

Milbury about what was going on.

She

began questioning

Then, after they had driven

-33

200

or

300

yards,

the

police

cruiser,

which

had

been

following the

blue lights

couple since

and its

Officer Robert

siren; Milbury

Marchionda then

Milbury got out of the car.

minute or two,

handcuffed.

As

Swain

Officer Marchionda

that point, identify the

for backup, and another

thereafter.

stopped

Swain

got out,

then

by one of them,

dropped a

about three feet away from

put her hands

onto the grass,

object.

car over.

and

car for a

when she saw Milbury

she

its

the vehicle

Swain remained in the

had seen Swain

drop an object

turned on

pulled their

approached

and then got out

marijuana on the ground

back and

the parking lot,

being

baggie

of

the car.

behind her

but could not,

at

Officer Marchionda radioed

officer, Officer Romeo, arrived soon

approached the

officers, but

who restrained her

was

with his hands.

She asked what

suspected

was going on,

of taking

and was told that

things from

Milbury was

Moynihan Lumber.

Marchionda then arrested Swain and handcuffed her.

was handcuffing her,

he saw

that the dropped

baggie of marijuana.

He retrieved it.

Officer

While he

object was

Swain was pat frisked

at the scene, but nothing was found on her person.

When the police searched

worth of hardware

in the

the car, they found $400

trunk, which had

been taken

another store in Gloucester, Massachusetts, and

worth of

front

sawblades, wrapped in

seat.

Swain

was

-44

another $400

a hardware flyer,

surprised to

see

from

under the

the merchandise

there.

Milbury's

The

police implied

theft;

she kept

anything about it.

that she

saying

was an

that

she

accomplice to

did not

Milbury also told the police

know

that Swain

was innocent.

Neither of

marijuana on the

the officers

ground.

the marijuana and did

Swain did

not know if

ever asked her

about the

not see anyone pick

anyone had seen her

up

drop

it.

After about thirty minutes at the scene, Swain and

Milbury were transported

in a

police cruiser

Reading Police Station.

When

she got to

handcuffs

Swain was seated at a booking desk,

and an

were removed.

officer had

Spinney, the chief

her sign

to the

North

the station,

a rights card.

of police's secretary, was

Matron

her

Laura

called to the

booking desk because a female was under arrest.

While in the booking area, Swain asked to go to the

bathroom.

did not

Matron Spinney escorted

come in with

door almost all of

her.

Swain

her to a

was allowed to

the way, leaving it

Spinney stood outside the

bathroom,

open just a

door to the room, where

but

close the

little.

she could

hear Swain using the facilities, but could not see Swain.

Swain

she

then returned to the

could

make a

office, and a police

booking area, and

phone call.

She

was

officer stood outside.

was told that

shown to

She

a small

called her

attorney and spoke with him for five to ten minutes.

-55

While

Swain was

seated in

the booking

area, her

pocketbook was searched by

rolling papers

papers

with Swain.

advised

that

in the

Spinney.

Spinney found cigarette

pocketbook.

At that

No one

point,

discussed these

one of

the

officers

Swain that marijuana had been found at the scene and

she

was going

to be

charged

in connection

with it.

Swain denied that it was her marijuana.

Swain

Officer

Ed

was

Hayes,

then

the

department supervisor,

to a

cell.

the

cell

Sergeant

prosecuting

Hayes

then

photographed.

officer and

detective

to take Swain

frisked Swain before taking

found nothing on her.

for about

and

ordered Matron Spinney

Spinney pat

the cell and

fingerprinted

twenty

came

Swain

minutes.

to her

cell

her to

was left alone in

According

and

to Swain,

attempted

to

question

her

about Milbury's

criminal

activities.

Hayes

yelled at Swain, telling her that she was lying, and that she

should tell him

what was going

on.

Swain, who was

crying

hysterically, kept repeating that she honestly knew nothing.

According to Swain,

Hayes' questioning lasted

approximately

fifteen minutes and then he "walked out in a huff."

Hayes states that he only

cell

area

for

recollection

that

it would

detainees

approximately

of what

be

one

he discussed

normal

procedure

to advise them about

-66

stayed with Swain in the

minute.

with Swain,

for

him

He

has

no

but asserts

to

their arraignments.

talk

to

He does

not

recall interrogating

but cannot state

located

in

Swain about

that he did not

another cell

Swain, stated that

where he

he heard

Milbury's activities,

do so.

could

Milbury, who was

hear but

Hayes talking to

not see

her and

also

heard Swain crying and saying that she was innocent.

About five

to ten minutes after

Hayes' departure,

Spinney returned and apologetically informed Swain that Hayes

had

ordered her

testimony

to

that he

strip

believes

search prior to speaking

whether

the search was

search

Swain.

he would

with Swain.

It

have

is

ordered such

Spinney does

ordered before or

Hayes'

not know

after Hayes spoke

with Swain, but knows that Hayes did not order a strip search

when

he originally told Spinney

Spinney states, however, that the

almost

to take Swain

to the cell.

order to strip search came

immediately after she brought Swain

to the cell, and

not a significant amount of time later.

Swain

searched and

Swain

not

understand

why

began crying again. Spinney

to remove all of

shook out

could

her clothing except for

each item as Swain took it off.

bend over

and spread

her buttocks.

she

was

being

then ordered Swain

her bra.

Spinney

Spinney then made

Swain

was very

upset and shaking uncontrollably the entire time.

then

told she

during

minutes.

her

could

search.

get dressed.

The

entire

Hayes had not told

Swain was

Spinney found

nothing

procedure lasted

fifteen

Spinney what to look

for, but

-77

Spinney

knew that marijuana had been found at the scene, and

assumed that she was looking for drugs.

Swain asserts that, before

Spinney

assured Swain that the video camera in the cell area

was already off. Swain did not

Chief of

Police Henry

constantly left on.

but the

see her turn the camera

Purnell testified, however,

station cameras, including

cameras,

the one in

are

Department has

instructed to

she turned

that the

the female cell,

no policies

are

the camera

searching Swain, but

or procedures

or retention of these tapes.

turn

pressing a button, when conducting

that

off.

Videotapes are sometimes made from these

concerning the making, storage,

Matrons

she was asked to strip,

the

cell

a search.

off with

a wall

does not recall telling

camera off,

by

Spinney states

switch before

Swain that the

camera was off

or making

any comments about

the camera

at

all.

Milbury, who had an extensive criminal record,

never strip searched.

Hayes was aware of Milbury's

of drug convictions and

having pulled the

knew that Milbury was

was

history

on probation,

records while booking Milbury.

Swain had

no prior criminal convictions.

Officer

story.

Hayes,

for his

part,

tells

He asserts that he ordered the strip

immediately

upon

his arrival

at

the

a different

search of Swain

booking desk,

which

occurred as soon as he was informed that the arrests had been

-88

made,

and, he believes, before he spoke with her.

According

to Hayes, he ordered the search because the arresting officer

showed

him the marijuana and

principal suspect

that

he

although

suspicion

in a narcotics incident.

suspected Swain

he

informed him that

of

acknowledges

of narcotics

carrying

that

suspects,

this

Swain was a

He also asserts

a concealed

was

rather

than a

weapon,

generalized

suspicion

based on any characteristics of Swain.

Later that day, Milbury and Swain were arraigned in

Woburn District Court and released on their own recognizance.

All charges

against Swain

continued

without a

emotional

trauma

were eventually "nol

finding.

as

result

Swain

of

the

prossed" or

suffered

continuing

search

and sought

counseling.

The

Town

searches is outlined

of

North

Reading's

policy

on

strip

in a memo on "Inventory Search Policy,"

prepared in 1989 by training officer Lieutenant Edward Nolan.

The

Policy states that: "A

warranted only if the

that

body."

strip search of

the arrestee is

police have probable cause

to believe

the arrestee is concealing contraband or weapons on his

Chief Purnell testified that, in any arrest involving

drugs, all arrestees are strip searched.

The shift commander

-- normally the highest-ranking officer

on duty -- makes the

determination of when a strip search is warranted.

-99

The Municipal Police

Institute (MPI), a

statewide

police

association, publishes a

Policies

North

& Procedures."

Reading

police

book called "Police Manual:

Chief

adhere

Purnell testified

to

the

MPI

that the

policies.

relevant MPI policy is as follows:

strip

search

of

warranted

only

if

an

arrestee
officers

reasonable suspicion to believe

arrestee

is

concealing

is
have

that the

contraband

or

weapons on his body.

1.

All body strip-searches must

by

the

officer-in-charge,

be approved
who

shall

consider the following question:

Is

the crime

associated

one that
with

is normally

weapons

or

contraband?

Only if

the answer

to this

yes and

there is a

reasonable suspicion

that

the

contraband

arrestee
on his

has

person

question is

weapons
will

or
body

The

strip-search be authorized.

2.

Body

cavity

conducted

searches

should

not

be

without the express approval

of the officer-in-charge,

and require

search warrant signed by a judge.

However,

both

Sergeant Hayes

and Matron

Spinney testified

that they were unaware that North Reading had any policy with

regard

to strip searches.

policy

to strip

Hayes testified that

search individuals whenever

involved in the case.

Nonetheless, he

search of Milbury.

II.

-1010

it was his

narcotics were

did not order a strip

Swain claims, under 42 U.S.C.

1983 and Mass. Gen.

Laws ch. 12,

11H, 11I, that Laura Spinney,

and the Town of

North Reading violated her rights

under the

Massachusetts Constitutions by

subjecting

United States and

her to

an unreasonable

search.

summary judgment, the district

Edward Hayes,

On defendants'

motion for

court held that, under United

______

States v. Klein, 522 F.2d 296 (1st Cir. 1975), the search
______
_____

of

Swain

was within

the bounds

of the

thought

Klein unaffected
_____

by Bell
____

(1979).

The district court further

Fourth Amendment.

v. Wolfish, 441
_______

It

U.S. 520

held that the individual

defendants were, in any event, entitled to qualified immunity

from suit.

As to

found that,

in this

tracked the

federal standards.

found that

the Massachusetts law

area, Massachusetts

Swain had failed

for municipal liability under

Swain argues

probable

cause to

court

constitutional law

Finally,

the district court

to meet the

exacting standards

1983.

on appeal

believe

claims, the

that the police

that an

arrestee is

must have

concealing

weapons or contraband in order to strip search that arrestee.

She further argues that, even if the search needed only to be

supported by

present

a reasonable

suspicion, no such

and that the officers

are thus not

protections of qualified immunity.

-1111

suspicion was

entitled to the

We

judgment

review

de novo.
_______

the district

EEOC v.
____

court's grant

Amego, Inc., 110

___________

of summary

F.3d 135, 141

(1st Cir. 1997).

III.

strip

arrestee must

suspicion.

acted

claim

Because

a jury

body

cavity

the least,

could find

reasonable

search

by a

that

suspicion

of

an

reasonable

Officer Hayes

that

Swain

was

drugs or weapons, we find that Swain has stated a

against

the

individual

withstand a motion for

some

visual

be justified, at

without

concealing

and

courts have

summary judgment.

suggested that

necessary to justify

defendants

a higher
______

a strip search

sufficient

to

Furthermore, while

standard may

and visual body

be

cavity

inspection, it

search

that

was clearly

the

Fourth

reasonable suspicion

to

established at

the time

Amendment

requires

conduct these

types

Significant factual disputes remain, rendering

to

resolve

conclusively the

immunity

of the

at least
_________

of

searches.

it impossible

question on

summary

judgment.

A. Strip Searches, Visual Body Cavity Inspections, and the

_____________________________________________________________

Fourth Amendment
________________

"[I]n the case of a lawful custodial arrest a

search of the person is not only an exception

requirement

of

the

Fourth

'reasonable' search under that

Amendment,

amendment."

full

to the warrant

but

is

also

United States v.
_____________

-1212

Robinson, 414 U.S. 218, 235 (1973).

________

the arrest was lawful,

have

any further

214, 217 (1st

a searching officer does not

justification for

search of an arrestee.

Thus, under Robinson, if

________

performing a

need to

full body

See United States v. Bizier, 113 F.3d

___ _____________
______

Cir. 1997).

Moreover, a

search incident

to

arrest need not

occur at the scene

of the arrest, but

accused arrives at

"may

legally be conducted

later when the

the

place of detention."

United States v. Edwards, 415 U.S. 800,

_____________
_______

803 (1974).

However, Robinson
________

searches

as a

did not hold

that all

possible

of an arrestee's body are automatically permissible

search incident to

arrest.

To the

contrary, any such

search must still be reasonable:

Holding

the Warrant

to

circumstances present

not

the

leave

law

Clause inapplicable

enforcement

subject to no restraints.

here does
officials

This type

of

police conduct "must [still] be tested by

the

Fourth

proscription

Amendment's
against

searches and seizures."

general
unreasonable

Edwards, 415 U.S. at 808 n.9 (quoting Terry v. Ohio, 392 U.S.
_______
_____
____

1, 20 (1968)).

search at

In Robinson
________

issue, while

patently abusive

Rochin
______

Illinois
________

v.

thorough, did

characteristics."

California,
__________

v.

Lafayette,
_________

342 U.S.

462

explicitly stated that "[w]e

and do not discuss

itself, the Court noted that the

U.S.

not have "extreme

414 U.S.

165

640

or

at 236 (citing

(1952)).

(1983),

Later, in

the

Court

were not addressing in Edwards,

_______

here, the circumstances in which

-1313

a strip

search of an arrestee may or may not be appropriate."

646 n.2.

visual

"Robinson simply
________

body cavity search.

did not authorize"

a strip

and

Fuller v. M.G. Jewelry, 950 F.2d

______
____________

1437, 1446 (9th Cir. 1991); see also Mary Beth G.

________ ____________

Chicago,
_______

Id. at
___

v. City of
_______

723 F.2d 1263, 1271 (7th Cir. 1983)("[T]he Robinson

________

court simply

intrusions

inspection.).

did not

that

contemplate the

occur[]"

in

significantly greater

visual

body

cavity

A strip and visual body cavity search thus requires

independent analysis under the Fourth Amendment.

Wolfish,
_______

441 U.S. 520

"[t]he test

(1979), the Supreme

of reasonableness under the

In Bell v.
____

Court noted that

Fourth Amendment is

not capable of precise definition or mechanical application."

Id. at 559.
___

Rather, the evaluation of the constitutionality

of a warrantless search

requires a balancing of the need

for the

particular search against the invasion of

personal rights that the
Courts

must

search entails.

consider the

scope

of the

particular intrusion, the manner in which

it

is

conducted, the

initiating it,

justification for

and the place in which it

is conducted.

Id.
___

In Wolfish,
_______

the Supreme

Court applied this

balancing

test

to a

detainees

inspection

prison policy

to

their

body

arraigned pre-trial

cavities

for

visual

as a part of a strip search conducted after every

contact visit

Id. at 558.
___

"expose

that required

with a

person from outside

Noting that "this

-1414

the institution."

practice instinctively gives

[the Court] the most pause," id. at 559, the Court found only
___

that

visual body cavity

than probable

cause."

searches can "be

Id. at
___

560.

In so

conducted on less

holding, Wolfish
_______

"did not, however, read out of the Constitution the provision

of

general

application

that

reasonable under the circumstances."

search

be

justified

as

Weber v. Dell, 804 F.2d

_____
____

796, 800 (2d Cir. 1986).

In applying the Wolfish balancing

_______

of

the type

to

which

Swain

was

test to searches

subjected,

courts

have

recognized that strip and visual body cavity searches impinge

seriously upon the values that the Fourth Amendment was meant

to protect.

These

searches require an arrestee not

strip naked

in front of a

stranger, but also

only to

to expose the

most private

here, done

degrading

areas of her body to others.

while the person

and

humiliating

"recognize[d], as

have all

issue, the severe if

privacy that

of

Cir.

searches

genital

positions.

Our

courts that have

occurs when guards conduct

The

Arruda v. Fair, 710

______
____

Seventh

involving the

areas

arrested is required

as

to assume

circuit

Circuit

has

has

considered the

not gross interference with a

body cavities."

1983).

This is often, as

person's

a visual inspection

F.2d 886, 887 (1st

described

visual

inspection of

demeaning,

dehumanizing,

"strip

the anal

and

undignified,

humiliating, terrifying, unpleasant, embarrassing, repulsive,

signifying degradation

and submission."

Mary Beth G., 723

_____________

-1515

F.2d

at 1272

Wood v.
____

(internal quotation

marks omitted);

see also
________

Clemons, 89 F.3d 922, 928 (1st Cir 1996) ("[A] strip

_______

search can hardly be characterized

as a routine procedure or

as a minimally invasive means of maintaining prison security.

Indeed, a

strip search, by

its very nature,

constitutes an

extreme

intrusion

upon

offense

to the dignity of

Angeles
Police Dep't,
_______________________

1990)("Strip

personal

privacy, as

well

as

an

the individual."); Kennedy v. Los

_______
___

901

F.2d

searches involving

702,

the

711

(9th

visual exploration

Cir.

of

body cavities are dehumanizing and humiliating.").

On

the

the other side of the scales, courts must weigh

legitimate needs

security

has

been

of

law

found

to

enforcement.

be

Institutional

compelling

reason for

conducting warrantless strip and visual body cavity searches.

See, e.g., Wolfish, 441 U.S. at 559 (prisoner

___ ____ _______

strip searches

after contact visits justified because detention facility "is

a unique place fraught with serious security dangers").

courts

Some

have held that a warrantless strip search may also be

justified

by the

need

evidence of a crime.

to discover

See, e.g., Justice v.

___ ____ _______

961 F.2d 188, 193 (11th Cir. 1992).

at 1446 (strip and

and preserve

concealed

Peachtree City,
______________

But see Fuller, 950 F.2d

_______ ______

visual body cavity search with

less than

probable cause only permitted to protect institutional safety

and

security;

search

for

evidence must

probable cause).

-1616

be

justified

by

Balancing

that, to be

suspicion that

Crouch,
______

See,
___

have concluded

must be justified

the

arrestee

e.g, Justice,
___ _______

is

by at least

concealing

961 F.2d at

visual body

a reasonable

contraband

or

192; Masters
_______

v.

872 F.2d 1248, 1255 (6th Cir. 1989); Weber, 804 F.2d
_____

at 802; Stewart
_______

Cir.

interests, courts

reasonable under Wolfish, strip and

_______

cavity searches

weapons.1

these

v. Lubbock County, 767 F.2d

_______________

1985); Giles v. Ackerman,

_____
________

746 F.2d 614,

1984); Mary Beth G., 723 F.2d at 1273.

_____________

153, 156

(5th

615 (9th Cir.

This court has held

that the reasonable suspicion standard is the appropriate one

for justifying strip

89

F.3d

at

929

searches in other contexts.

(prison

Uricoechea-Casallas, 946
___________________

routine

United
States
_______________

F.2d 162, 166 (1st

border searches);

233, 236-38 (1st Cir.

visitors);

cf. Burns
___ _____

See Wood,
___ ____

v.

Cir. 1991)(non-

v. Loranger,
________

907 F.2d

1990) (officers protected by qualified

immunity for warrantless strip search of arrestee where there

were

exigent circumstances

and

probable cause

controlled substance

would be found on

Accordingly,

clear

suspicion

it

is

standard

governs

that

at

to

believe

arrestee's person).

least

strip and

searches in the arrestee context as well.

the

visual

reasonable

body

cavity

____________________

1.

As noted above, the Ninth Circuit has held that, absent a

threat

to

institutional

security, the

higher

showing

probable cause is required to justify such a search.

of

Fuller,
______

950 F.2d at 1446.

-1717

Defendants, and the

court below, rely upon

United
______

States v. Klein, 522 F.2d 296 (1st Cir. 1975).

______
_____

the

In that case,

defendant, who was arrested after a sale of cocaine, was

subjected to a strip search, including a visual inspection of

his rectum.

Id. at 299.
___

"[a] post-arrest

Edwards," and
_______

that

search of

search unreasonable.

Klein
_____

Court's

the person, plainly

found that a lack

the suspect was

precedent

This court approved that search as

approved by

of individualized suspicion

harboring evidence did

not render the

Id. at 300 & n.2.

___

was decided before significant Supreme Court

in the

developing

area,

and we

doctrine.

are

Klein
_____

bound by

predates

the

Supreme

Lafayette,
_________

decided in 1983, where the Supreme Court stated that

Edwards

_______

did

not answer

appropriate.

predated

the

Lafayette,
_________

Wolfish,
_______

invasiveness

question of

of

462 U.S.

with

strip

its

and

Wolfish, 441 U.S. at 558.

_______

to

the developing

when

a strip

at 646 n.2.

explicit

visual

doctrine,

Bonitz v.
______

this

also

body

cavity

of

the

searches.

circuit

has

repeatedly

visual body cavity searches are

Fair, 804 F.2d

____

1986); Blackburn v. Snow,

_________
____

1985); Arruda, 710 F.2d

______

Klein
_____

recognition

not routine, and must be carefully evaluated.

Cir.

was

Subsequent to Klein, and sensitive

_____

recognized that strip and/or

F.2d at 236-37;

search

at 887.

See Burns, 907

___ _____

164, 170-72

771 F.2d 556,

(1st

564 (1st Cir.

Accordingly, to

the extent

that Klein held

_____

that strip and

visual body cavity

searches

-1818

are simply searches incident to arrest, and do not need to be

further tested for reasonableness under the Fourth Amendment,

it

does not

survive

Lafayette, Wolfish,
_________ _______

and this

court's

subsequent strip search decisions.

B. The Search of Swain

______________________

Turning

to

the

particular search

at

issue,

we

conclude, taking all the facts in the light most favorable to

Swain,

that

unreasonable

jury

and

Accordingly,

could

thus

we find

violated

that

claim under 42 U.S.C.

find

1983.

that

the

Swain has

the

search

Fourth

stated a

was

Amendment.

trialworthy

On these facts, there appears

to be the distinct possibility that Officer Hayes ordered the

strip search

Swain

in her cell, imposing

punishment

Hayes'

in retaliation for his

for

angry

what he

response

sexual humiliation on

perceived

to

failed interrogation of

as

Swain's

information about Milbury's activities

her as a

her non-cooperation.

inability

to

provide

and the timing of the

search

this

raise this inference.

This possibility distinguishes

case from Klein, where

_____

the court found

that there was

"no evidence that the stripping was a pretext to humiliate or

degrade."

Klein, 522 F.2d at 300.2

_____

We

must

thus

examine

____________________

2.

We also recognize that, under United States v. Whren, 116

_____________
_____

S. Ct. 1769 (1996), a police officer's subjective motivations

do not

serve to

purposes, so

invalidate a

long as

search for

the search was

under the circumstances.

exclusionary rule

objectively reasonable

Whren, however, also stressed that

_____

"the Constitution prohibits selective enforcement of the

based on considerations such

as race," id. at 1774,

___

-1919

law

and, we

whether, on these facts, an objective

reasonable suspicion

contraband on her

were

that Swain

person.

not adequate

of

time

grounds to justify

drugs or

suggest that there

the strip

and visual

First, there is the timing

of

Swain had been alone in the cell for some period

before

important to

was concealing

Three factors

body cavity search of Swain.

the search.

officer would have had

she was

search

searched

her before

she

and

no

one thought

angered Hayes

by

it

not

giving

him

the

importantly,

herself,

also

her

information

he

she had been allowed

sought.

to go to

Perhaps

more

the bathroom by

unobserved, prior to being taken to her cell.

This

indicates that no one thought she had secreted drugs in

private parts.

knowledge

that

drug

Cf. Burns,
___ _____

users

and

907

F.2d at

dealers

238

with

(common

controlled

substances on their persons often attempt to flush drugs down

the

toilet).

If a warrantless strip search may be justified

by the need to avoid

Swain already had had

evidence.

the destruction of concealed

evidence,

ample opportunity to destroy any

such

To the extent there was any reason to believe such

____________________

would assume, gender.

The exclusionary rule, as the Supreme

Court

recognized in

Malley
______

v. Briggs,
______

475

(1986), balances different interests than

action.

("While

necessary
cost

we believe the

purpose, it

U.S. 335,

those in a

344
1983

exclusionary rule serves

obviously does

so at

a considerable

to the society as a whole, because it excludes evidence

probative
remedy

of guilt.

for [a

. .

Fourth

directly on the officer

On the

other hand,

Amendment violation]

a damages

imposes a

responsible . . ., without

cost

the side

effect of hampering a criminal prosecution.").

-2020

evidence

still existed,

further delay

to obtain

a warrant

would

not

have

destruction.

significantly

This was

increased

the

particularly true because

risk

of

Swain was

kept under observation and recorded by video camera while

in

the holding cell.

Second, as noted, the most compelling justification

for

warrantless strip

and

visual body

institutional security.

It

her

was the

arraignment, Swain

holding

cell

arraignment

released,

she

of

the North

was later the

cavity searches

is

is uncontroverted that, prior to

only person in

Reading

Police

same afternoon, and

on her own recognizance.

There was

the women's

Station.

Her

she was then

no risk that

would come into contact with other prisoners, or be able

to smuggle

contraband or weapons into

a secure environment.

Hayes

stated that

suspect,

believed that

might have been carrying

did not assert

that of

he

that Swain posed

others in

the police

security justification

Swain, as

a narcotics

a concealed weapon but he

a threat

station.

thus appears

to his safety

The

or

institutional

to be absent

from this

case.

Third, there

police

Milbury

of

the young

were

first

shoplifting activities.

searching Swain,

is the differential treatment

woman and

pulled

her

over

Officer

because

of

Swain and

Milbury's

Hayes stated that, prior to

he had examined both

-2121

boyfriend.

by the

Swain's and Milbury's

records. Officer Hayes knew that Milbury was on probation and

had

a history of drug

not

have a

criminal

convictions.

record.

By

contrast, Swain did

Milbury

had told

including Hayes, that the marijuana was his.

not strip searched.

from

well.

Yet Milbury was

If there was an objective basis -- apart

retaliation -- for stripping Swain,

objectively

officers,

reasonable, and

more so,

it would have been

to search

Milbury as

On

the other

hand,

Swain did

marijuana at the scene of the crime.

drop

a baggie

of

Officer Hayes expressed

the view (belied by his failure to strip search Milbury) that

a strip search was

in

the case.

policy,

justified whenever narcotics are involved

This is

not consistent with

which requires

which requires an

probable cause,

reveal

nor

how much marijuana

does

constitutes

law.

it

or the

individualized suspicion,

crime involves contraband

reveal

or weapons.

was in the

whether

a misdemeanor

or a

either the Town

MPI policy,

even where

the

The record does

not

baggie Swain dropped,

possession

felony

of

that

amount

under Massachusetts

Nothing in the record suggests that Swain was suspected

of being a distributor of marijuana.

The fact that Swain may

have possessed

enough

to

discussed

some unspecified

overcome,

as

amount of marijuana

matter

of

law,

the

is not

factors,

above, under which a jury could find the search of

Swain unreasonable.

-2222

Accordingly,

we

hold that

a jury

could lawfully

find that there was no objectively reasonable basis for strip

searching

claim

Swain and that, on these facts, Swain has stated a

for violation of her Fourth Amendment right to be free

from

unreasonable searches that

survives defendants' motion

for summary judgment.

C. Qualified Immunity
_____________________

Defendants

entitled to

prongs

assert

qualified immunity

to the

the

court.

(1st Cir. 1995).

Elder v.
_____

in

any event,

There are

analysis. First,

question clearly established

of the alleged violation?

F.3d 20, 24

are,

from suit.

qualified immunity

constitutional right in

time

that they

St. Hilaire
___________

That is a

Holloway, 510
________

two

was the

at the

v. Laconia, 71
_______

question of law for

U.S. 510,

516 (1994).

Second,

would

understand

that

established right?

The

reasonable,

the

similarly

challenged

situated

conduct

official

violated

that

St. Hilaire, 71 F.3d at 24.

___________

Fourth

Amendment

right

to

be

free

from

unreasonable strip searches has long been clearly established

in this circuit, as elsewhere.

Blackburn,
_________

236;

771 F.2d at 569 ("It can hardly be debated that .

in 1977,

[there

Amendment right to

discussed

See Burns, 907 F.2d at

___ _____

was] a

established' Fourth

be free of unreasonable

above, Klein's
_____

reasonable search

'clearly

holding

incident to

searches.").

that such

arrest had been

a search

As

is a

abrogated by

-2323

subsequent

been

Supreme Court

squarely

rejected

consider the issue.

and First

by

the

See Fuller,
___ ______

Circuit cases,

other

circuit

and had

courts

to

950 F.2d at 1446, 1449 n.11

(holding that strip search with visual body cavity inspection

was

not justifiable as a

search incident to

arrest but was

governed by higher standard, and rejecting Klein);

Mary Beth

_____

G., 723 F.2d at 1271 n.7 (searches like the one

__

only constitutional

where there is a

arrestee is concealing

_________

in Klein are
_____

reasonable belief that

contraband; routine post-arrest strip

search of misdemeanants is unconstitutional); see also Weber,

___ ____ _____

804 F.2d at 801 nn. 6 & 7, 803 (holding that it was, in 1986,

"clearly established" that policy of routine strip and visual

body cavity

citing

searches of arrestees was

"ten opinions

from seven

condone such searches).

search

must be evaluated

unconstitutional, and

circuits" that

refused to

Defendants themselves agree that the

under the

reasonableness standard

articulated by the 1979 Supreme Court decision in Wolfish.

_______

The

question

is

thus

whether

an

objectively

reasonable officer

Swain

was, under

would understand

that a strip

these circumstances,

prong of the inquiry,

search of

unreasonable.

This

while requiring a legal determination,

is highly fact specific, and may

not be resolved on a motion

for summary judgment when material facts are substantially in

dispute.

Nahmod,

Civil Rights and Civil Liberties

____________________________________

-2424

Litigation: The Law of Section 1983

___________________________________

8.08, at 136-39 (3d ed.

1991).

The

ultimate

question

of

reasonable police officer,

whether
on the

basis

of information known

to him, could

believed his actions

were in accord with

constitutional
law, subject to
not the jury.
dispute,

rights

is a

that

question of

resolution by the
But if there is
factual

have

judge

a factual

dispute must

be

resolved by a fact finder.

St. Hilaire, 71 F.3d at 24 n.1

___________

Figueroa-Rodriguez v.
__________________

1988)("While the

(internal citations omitted);

Aquino, 863 F.2d 1037,

______

qualified immunity inquiry

1041 (1st Cir.

is ultimately a

question of law, it

may also necessitate determining certain

of the essential facts.")(citing

U.S.

635 (1987)); see also

________

794 (1st Cir.)

Anderson v. Creighton,
________
_________

Consolo v. George,
_______
______

(where law is clearly

483

58 F.3d 791,

established, and there

is ample evidence that officers acted unreasonably, proper to

submit

issue

special

of objective

reasonableness

interrogatories),

cert. denied,
_____________

to

116

the jury

S.

Ct.

on

520

(1995).

We recognize that the

resolved,

Veilleux
________

where possible, in

v.

Perschau,
________

However, disposition

not

always

101

immunity question should

advance of trial.

F.3d

1,

of the question on

possible.

Here,

some

(1st

be

See, e.g.,
___ ____

Cir.

1996).

summary judgment is

material

facts

are

significantly in dispute.

Hayes conflict on

Swain's story and that

the timing of the relevant

of Officer

events.

Some

-2525

proffers are supported

including Spinney and

or contradicted

Milbury.

by other

witnesses,

Hayes contends that,

as the

officer in charge of the investigation, he ordered the search

immediately

upon being

had occurred.

essential to

informed that a

The timing of

when the search was ordered

a determination of whether

was objectively

reasonable. There

trier of

conflicts

may

fact.

Only

the trial

after

court

is

defendants' conduct

are thus

potentially turning on credibility,

the

narcotics violation

factual issues,

that must be resolved by

the resolution

apply the

of

relevant

these

law on

objective reasonableness.3

We

protected

in

also

close

recognize

cases

by

that

police

the

doctrine

officers

of

are

qualified

immunity, and that immunity serves to protect law enforcement

from

the chilling

Diaz-Torres,

threat of

liability.

Vargas-Badillo v.
______________

--- F.3d ----, 1997 WL 276662 (1st Cir. May 30,

___________

1997); Joyce v. Town of Tewksbury, 112

_____
_________________

1997)

(patent violation

officers

qualified

violate

of

qualified

immunity does

the law."

of

F.3d 19, 23 (1st Cir.

law necessary

immunity).

not

On

protect

Malley v.
______

to strip

the

other

"those who

Briggs,
______

police

475 U.S.

hand,

knowingly

335,

341

____________________

3.

In St. Hilaire, we
____________

functions

between

reasonableness inquiry
special

noted

judge
may

that the

and

proper division

jury

on

be accomplished

the
either

of

objective
through

interrogatories or through carefully structured jury

instructions.

St. Hilaire,
___________

Nahmod, supra,
_____

8.08,

71 F.3d

at 137.

to the trial court.

-2626

at

We leave

24 n.1;

see also
________

that decision here

(1986).

Here, further

resolution of the facts

is necessary

to determine whether or not this case falls into the category

of "close cases" in

which the police are accorded

wide zone of protection."

Lewiston, 42
________

related

search

and

Roy v. Inhabitants of the City of

___
___________________________

F.3d 691, 695 (1st Cir. 1996).

by Swain,

Officer

visual body

"a fairly

Hayes used

cavity

On the facts as

a warrantless

inspection

as

strip

tool

to

humiliate and degrade her in

retaliation for her refusal

to

respond to interrogation.

Independently

Officer

Hayes

retaliate,

by Malley,
______

on its facts,

was alone in

that

dispose of any

a monitored

might justify

Such allegations,

of

the

allegations

law

Swain also

to

asserts the

This

occurred after she had ample

hidden evidence and

cell, posing no

danger to

hastily

proceeding without

if true, do

not represent a

but a flagrant violation

that

in order

objectively reasonable.

search, on Swain's allegations,

opportunity to

issue

deliberately violated

as forbidden

search is not,

of the

when she

others

warrant.

"close case"

of the Fourth Amendment's guarantee

against unreasonable searches.

Whether those allegations are

true or not must be resolved by the finder of fact.

D. Municipal Liability
______________________

Swain

claims that

the

Town of

liable for the injuries that she suffered.

-2727

North Reading

is

The Supreme Court

has recently clarified the

necessary showing for a

municipal liability under

1983:

[I]n Monell and

______
required
liability
to

plaintiff seeking

to impose

on a municipality under

identify

"custom"

subsequent cases we have

municipal

that

caused

the

1983

"policy"

or

plaintiff's

injury.
. . . .

As

our

1983

municipal liability

jurisprudence illustrates, however, it is

not enough for a

1983 plaintiff merely

to identify conduct properly attributable

to the municipality.
also

demonstrate

that,

deliberate conduct,
the

"moving

alleged.
that

The plaintiff must

through

its

the municipality was

force"

behind

the

injury

That is, a plaintiff must show

the municipal action was taken with

the requisite degree

of culpability

and

must

direct causal

link

demonstrate

between

the

municipal

action

and

the

claim of

deprivation of federal rights.

Board of the County Comm'rs

___________________________

(1997)

v. Brown, 117 S. Ct. 1382,

_____

(discussing Monell v.
______

1388

New York City Dep't of Social

______________________________

Servs., 436 U.S. 658 (1978), and progeny).

______

Here,

Swain

predicates municipal

liability

on a

failure to properly communicate to the police force a uniform

policy on

when strip searches

are appropriate

authorize

them.

to train, Swain alleges, rose

to the level of

This failure

and who

may

conscious indifference to the constitutional

rights of arrestees.

Swain accurately notes that the various

police personnel, including the

police chief, expressed some

confusion as to when strip searches are warranted.

-2828

The Supreme Court addressed failure to train claims

in Brown:
_____

We

concluded

in

Canton
______

that

"inadequate training" claim could

basis

for

1983 liability

circumstances."

We

an

be the

in "limited

spoke, however, of a

deficient training "program," necessarily

intended to apply
employees.

over time to

Existence

of

multiple
"program"

makes proof of fault at least possible in

an

inadequate

program

training

does not

case.

If

prevent constitutional

violations, municipal

decisionmakers may

eventually be

notice that a

put on

new

program is

called for.

Their continued

adherence

to an approach

that they know

or

should know

tortious

has

conduct

failed
by

to

prevent

employees

may

establish the conscious disregard for the

consequences
"deliberate

of

their

action

--

the

indifference"--necessary

to

trigger municipal liability.

Id. at 1390 (discussing and citing Canton v. Harris, 489 U.S.

___
______
______

378 (1989)).

Swain

incidents in

does

which the

not,

however,

point

North Reading police

to

any

other

force violated

the rights of arrestees through strip and visual body

cavity

searches.

There

decisionmaker,

based

was thus

on

"no

notice to

the

municipal

of

federally

previous violations

protected rights, that his approach is inadequate."

The Supreme

that a

constitutional violations.

circumstances, a

highly

left

open the

failure-to-train claim can succeed

pattern of

of

Court has

violation of

predictable consequence

-2929

of

possibility

without showing a

"[I]n

federal

Id.
___

a narrow range

rights may

a failure

to equip

be a

law

enforcement officers with specific tools

situations."

Id. at 1391.
___

This is

Purnell agreed

guidelines,

memo

not that

that every

case.

Officer Hayes

officer was supplied

including periodic updates.

requiring strip

cause

to handle recurring

searches to

with policy

Lieutenant Nolan's

be justified

by probable

The police

officers also agreed

that the MPI, colloquially known as the

"police manual," was

to

was such an update.

and Chief

be followed by, and

force.

Apparently,

was available to,

not all

the officers

understanding of those materials.

the North Reading

had a

consistent

However, it is undisputed

that North

Reading did have

distributed to

the force; absent prior claims,

reasonably inferred

known,

that his

Accordingly,

an appropriate policy

that Chief Purnell knew,

officers

Swain

were not

cannot

"deliberate indifference"

make

that was

it cannot be

or should have

executing that

the

policy.

requisite showing

to her constitutional

rights.

affirm the grant of summary judgment as to the Town of

of

We

North

Reading.

E. State Law Claim

__________________

The

14,

gives

Massachusetts

every

person

Declaration of

the

right

to

Rights, article

be

free

from

"unreasonable searches."

The Massachusetts Civil Rights Act,

Mass. Gen. Laws ch. 12,

11H, 11I, provides a private right

of action for persons who are deprived of rights protected by

-3030

either federal or

that

the

state law.

protections

Amendment protections

the

search of

of

The district court

article

of the federal

Swain was reasonable

14

tracked

concluded

the

Fourth

Constitution, and that

under both

federal and

state

575

law.

N.E.2d

constitution

We agree

1124

that cases like

(Mass.

provides

1991),

at

least

against

strip and visual

federal

Constitution.

However,

Supreme

Judicial

has

provides

Court

determining

(1987).

probable

the

of

in

some

does the

instances,

that

state

protection

searches as

concluded

cause

that

level

the

"art[icle] 14

to criminal defendants

Commonwealth v. Upton, 476

____________
_____

556-57 (Mass. 1985) (rejecting

informant tips);

1029

the

body cavity

than does the Fourth Amendment."

for

indicate

more substantive protection

N.E.2d 548,

Rodriques v. Furtado,
_________
_______

based

see also Commonwealth v.

________ ____________

federal standard

on

confidential

Blood, 507 N.E.2d

_____

The Supreme Judicial Court has also noted that

the Massachusetts

law on body cavity

14 remains uncharted territory.

n.8.

The SJC

searches in

searches under article

Rodriques, 575 N.E.2d at 884

_________

did remark, however, that the federal cases on

prisons

were not

"germane"

to a

body

cavity

search of a suspect for evidence "because of the 'diminished'

Fourth

Amendment

rights of

Id. (citations omitted).

___

possibility

that

prisoners and

their visitors."

This remark certainly suggests the

Massachusetts

-3131

law

might

place

greater

limitations

on

the

use of

strip

and

visual body

cavity

searches of arrestees than the federal Constitution does.

We need

Massachusetts

not attempt

law will take.

certainly does not provide

Having

found

that

the

to predict fully

what course

The Massachusetts Constitution

less protection than federal law.

____

search

objectively unreasonable under

of

Swain

may

have

the federal Constitution,

been

we

conclude that the law of the Commonwealth would at least view

the search

similarly, and

we therefore reinstate

her state

law claim against the individual defendants.

Defendants contend that Swain cannot prove that her

injuries

were

coercion" as

perpetrated

by

required under

Blake,
_____

631

or

See, e.g.,
___ ____

N.E.2d 985,

990

The Supreme Judicial Court has accepted that a

"threat" may be defined

another

intimidation,

Massachusetts law.

Planned Parenthood League v.

___________________________

(Mass. 1994).

"threats,

fearful or

"intimidation" may

as an "exertion of pressure

apprehensive

of injury

to make

or harm";

that

be defined as "putting [a person] in fear

for the purpose of compelling or deterring conduct"; and that

"coercion" may be

moral

defined as the application of

physical or

force so as to force someone to do something she would

otherwise

not have

done.

Id.
___

On

the facts

here, a jury

could

find

that Officer

Hayes

used

the strip

search

to

humiliate or punish Swain and as a means of exerting moral or

psychological

pressure

designed

to

weaken

her

perceived

-3232

resistance to her questioning.

This could indeed constitute

"intimidation"

or

"coercion"

within

the

meaning

of

the

statute.

The judgment

respect

to the

Town

of the

of North

court below is

Reading,

respect to the individual defendants.

affirmed with
affirmed
________

and reversed
reversed
________

with

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