USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-1078

SHARON WOOD ET AL.,

Plaintiffs, Appellants,

v.

JAMES R. CLEMONS ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

John S. Whitman,
________________

with

whom Richardson, Whitman, Large &

______________________________

Badger was on brief, for appellants.

______

Diane Sleek,
___________

Assistant Attorney

General, with whom

Andrew
______

Ketterer, Attorney General of Maine, was on brief, for appellees.

________

____________________

July 22, 1996

____________________

LYNCH,

Circuit Judge.
_____________

Officers

at a

Maine

prison

received

be

a tip that a female inmate's teenage children would

smuggling

drugs

into

granddaughter's booties.

the

confidential

search of the visitors.

in

her

The superintendent of

erroneously believing that the tip

unconnected

prison

of

the

informants,

authorized

district

1983.1

The

turned

up

strip

damages claim

The strip

no

drugs.

superintendent and

the

Department of Corrections under 42

sole question on appeal is

court correctly

plaintiffs'

minors

suit against the

Commissioner of the Maine

U.S.C.

In actuality, the tip had originated

plaintiff

Plaintiffs brought

the prison,

had been confirmed by two

from a single anonymous and uncorroborated source.

search

infant

entered

in

summary

favor

of the

whether the

judgment on

the

superintendent

based on his assertion of the qualified immunity defense.

conclude that the

constitutionality of prison-visitor

searches is governed by

and

that

position

strip

the standard of reasonable suspicion

reasonable

could have

We

official

in

believed, in

the

superintendent's

light of

the information

____________________

1.

The named plaintiffs

in this action are Sharon Wood; her

son Philip Thamert; her daughter

behalf

and as

parent of

Katrina Thamert, on her own

Maria Thamert;

and John

Foss, as parents and next friends of Michelle Hatch,

Thamert's girlfriend.
behalf of
alleged
Center

("MCC").

The

Phillip

They purport to assert their claims on

a statewide class
strip-search

and Mary

of individuals affected

policies

by the

of

the

Maine

Correctional

defendants

are

James

R.

Superintendent of the MCC,

Clemons,

and Donald L. Allen, Commissioner

of the Maine Department of Corrections.

-22

before him, that the searches did not violate the plaintiffs'

constitutional rights.

Accordingly, we affirm.

The record, viewed in the

light most favorable to

plaintiffs, reveals the following.

Sharon

Wood had

Center ("MCC")

been an

inmate

the

Since September of 1993,

at the

in Windham, Maine, serving

Maine Correctional

a three-year term

of confinement for a drug-related conviction.

she

was

first

approximately

incarcerated

every other

(then seventeen

there,

week by

years of age), her

From the

she

her son

was

time

visited

Phillip Thamert

daughter Katrina Thamert

(then sixteen), and Phillip's girlfriend Michelle Hatch (then

seventeen).

daughter

On each visit, Katrina brought along her infant

Maria (then

seven months

old).

Nothing happened

during any of these visits to arouse any suspicion of illegal

activity on

the part of Wood

or her visitors.

Wood had no

record of drug violations while at MCC.

The

visitors

Peter

events

leading

to the

strip

search

of

Wood's

began with a telephone call to the MCC by Detective

Herring,

the

State

Police

Department's

appointed

liaison

to

occasions,

the prison.

Herring

On

had

information obtained from his

criminal activity

"large number"

provided

MCC

of previous

officials

with

own confidential sources about

at the prison.

Herring's information had

invariably turned out to be accurate in the past.

-33

On January 5, 1994,

another tip.

Butts,

Herring called the MCC to

Corrections

provide

Officers Charles Baker and Stephen

both responsible

for criminal

investigations within

the MCC, fielded Herring's call together.

Herring told Baker

and Butts that he had obtained information that inmate Sharon

Wood was receiving drugs from the outside.

he

had been told by

had

heard from an

a confidential informant

anonymous source that

drugs during visits, and

into

the

prison

Herring disclosed

this

Herring said that

in

who, in turn,

Wood was receiving

that the drugs were being

her

to Baker

infant

granddaughter's

and Butts that

he had

smuggled

booties.

obtained

information on a second-hand basis, and that at no time

had Herring spoken directly

about the tip.

Herring

to the original anonymous source

himself had no personal knowledge of

Sharon Wood or the persons who were supposedly bringing drugs

to her.

Herring did not provide Baker or Butts with the name

of either

his confidential informant or

the original source

of the tip.2

Soon after

the phone

written

report of

report,

however, contained

call, Officer

the conversation

Baker prepared

with Herring.

an important

inaccuracy.

Baker's

That

inaccuracy may be what ultimately allowed the strip search to

take place.

The report

implied that the

information about

____________________

2.

The record does not clearly indicate whether Herring ever

knew the identity of the original tipster.

-44

Wood

had

been

provided

to

Herring

by

two

independent,
___________

mutually corroborating confidential informants:

_______________________

Det Peter Herring

he received

advised Butts

information from

that prisoner Sharon

receiving drugs
drugs

are

booties.
and

will

required.

and Baker

that

two separate

CI's

Wood (Dorm 2)

during visits.

hidden

in

request

Supposedly,

Wood's

Security projects

is allegedly

granddaughter's

office

appropriate

the

to monitor

action

when

Thus,

by

indicating

confidential

with

the

that

informants

same

two
___

-- had

information,

unconnected

provided

Baker's

"CI's"

--

Detective Herring

report

significantly

overrepresented the actual reliability of Herring's tip.

Five days later,

R.

on January 10, 1994,

Clemons, Superintendent of

Butts

to conduct

their

matters at the prison.

report of

Clemons

regular weekly

came

met with

Baker and

review of

security

At this meeting, Clemons read Baker's

the information

It is undisputed that,

the MCC,

defendant James

received from Detective

as a result of reviewing

to believe

in

good faith

confidential sources had provided Herring

that

Herring.

the report,

two separate

with precisely the

same tip concerning drug-smuggling by Sharon Wood's visitors.

Clemons

signed Baker's

report

to acknowledge

reviewed it and to confirm that the

that he

had

security projects office

run by Baker and Butts would monitor the situation and notify

Clemons if

Following

and when

the

any further action

January

10

including Clemons, conducted

meeting,

no

became appropriate.

one

at

the

MCC,

any additional investigation or

-55

follow-up concerning the Herring tip.

No action was taken on

the tip prior to the plaintiffs' next visit to the MCC.

That visit

that

morning,

children

on

Recalling

the

came on February

Officer Baker

the

prison

phone

22, 1994.

noticed

visitor

the

names of

schedule

conversation

with

At 10:00 a.m.

for

Peter

Wood's

that

day.

Herring

on

January 5, Baker paged Superintendent Clemons, who was at his

home, to request authorization to

the

conduct a strip search

visitors based on the Herring tip.

later,

Clemons responded

to Baker's

About twenty minutes

page and

strip search of Wood's scheduled visitors.

Detective

Herring to

inform

him of

of

authorized a

Baker then called

the impending

search.

Herring agreed to stand by in case arrests had to be made.

Katrina

Michelle

and

Phillip

Hatch arrived

at

After Katrina, Phillip and

and another officer took

would

Thamert,

the prison

Katrina's

at

baby,

and

about 1:20

p.m.

Michelle signed in, Officer Baker

them aside and told them

that they

have to submit to a search for contraband drugs before

they would be

"consent

permitted to

to search" form

see Sharon Wood.

to the visitors,

their constitutional rights to refuse

Baker read

advising them of

to give consent and to

require the prison to obtain search warrants, and to withdraw

consent

at any time prior

to the conclusion

of the search.

The form also said that if the visitors refused to consent to

the

search, their

visiting privileges would

be immediately

-66

and indefinitely

form

being

terminated.

made clear that the

asked

to consent

finished reading,

Neither Baker

search to which

was a

strip

nor the consent

the visitors were

search.

each of Wood's visitors

After Baker

(except the baby)

signed a consent form.

Katrina Thamert and

her baby

were then

taken by

two

female officers to

by

two

male

Michelle Hatch

a private bathroom, and Phillip was taken

officers

two

waited in the

was asked to remove

the

to

private storage

room,

main reception area.

Katrina

her baby's clothing and diaper.

female officers

checked

the

baby's

Katrina

held

her baby

visually

clothes

at

and

inspected

diaper

all times,

touched the baby during the search.

put the baby's clothes back on.

and

while

One of

the baby

for

and

contraband.

neither officer

Katrina was then told to

Although there were no drugs

found on the baby or her clothing, the searches continued.

In the storage room,

Phillip was told by the

officers to take off his clothing, and he did so.

male

officers

inspected his

searched

through his

mouth and ears.

clothing

two male

One of the

and visually

He was asked to lift his arms

and his

time.

genitals.

Neither officer

He was then permitted to

touched Phillip

at any

dress and was taken back to

the reception area.

Phillip

while

held

Katrina's

baby

in

the

reception area

Katrina was searched in the bathroom by the two female

-77

officers.

After removing her clothing, she was asked to lift

her breasts,

the

officers manually

inspected

touched

dress

then

and then was told

her mouth

to squat and cough.

searched

and

Katrina during

her clothing

and

visually

Neither of

the

officers

ears.

the search.

She

and return to the reception area.

escorted

Michelle Hatch

One of

into

the

was permitted

to

The female officers

bathroom and

went

through the same procedure as they had with Katrina.

None of the

searches having turned up

visitors

were

Phillip,

and Michelle

Following the

the

MCC.

permitted

see

told Wood

visit, Wood

After an

to

Sharon

contraband, the

Wood.

about the

Katrina,

strip searches.

filed an internal

grievance with

internal investigation,

Superintendent

Clemons responded

to Wood

with a memorandum

asserting that

the strip searches had not violated any prison

policy.

Shortly thereafter,

Department of

regulation or

the Commissioner of

Corrections affirmed Clemons'

the Maine

decision.

This

lawsuit followed.

II

The plaintiffs'

injunction, and

amended complaint

sought damages,

declaratory relief for a

an

variety of alleged

constitutional violations and common law torts arising out of

the strip searches.

summary judgment

defendants' motion

The district court, on cross-motions for

and partial

summary judgment,

for summary judgment in

granted the

its entirety and

-88

denied the plaintiffs' motions for class certification and to

file a second amended complaint.

The plaintiffs appeal solely from the district

entry of judgment in

favor of defendant Clemons as

claim

under

for

violations of

damages

1983

based

on

the plaintiffs' Fourth Amendment

his

court's

to their

alleged

rights.

The

only question in

correctly

concluded

immunity from

The

this appeal is

the

plaintiffs

that Clemons

argue

that

Clemons

is

not

1983.

entitled

to

official in

known that the Fourth Amendment

permit officials to undertake a

an uncorroborated

court

to qualified

claim under

because any reasonable

Clemons' position would have

on

is entitled

plaintiffs' damages

qualified immunity here,

does not

whether the district

tip received

strip search based

from a

single anonymous

source.

We

review

judgment de novo.
_______

F.3d 20, 24 (1st

(1996).

the

district

court's

See St. Hilaire v.

___ ____________

grant

question of

summary

City of Laconia,
_______________

Cir. 1995), cert. denied, 64

_____ ______

The ultimate

of

whether a

71

U.S.L.W. 3849

defendant is

entitled,

on

qualified

immunity is

decide.

73

842

a given

set of

a question

See id. at 24 n.1;

___ ___

(1st Cir.

F.2d 556,

facts,

of law

protection of

for the

court to

Prokey v. Watkins, 942 F.2d 67,

______
_______

1990); Cortes-Quinones
_______________

561 (1st

to the

Cir.), cert.
_____

(1988).

-99

v. Jimenez-Nettleship,
__________________

denied, 488
______

U.S. 823

III

The "touchstone" of the qualified immunity

the

concept

Anderson
________

of

"objective

legal

v. Creighton, 483 U.S.

_________

objectively

reasonable official,

question is

reasonableness."

635, 639 (1987).

See
___

Could an

situated similarly

to the

defendant, have believed that his conduct did not violate the

plaintiffs'

established

constitutional

law

and

the

rights,

in

information

light

of

possessed

clearly

by

the

defendant at the time of the allegedly wrongful conduct?

Hegarty v. Somerset County, 53 F.3d

_______
________________

1367, 1373 (1st

See
___

Cir.),

cert. denied, 116 S. Ct. 675 (1995); Singer v. Maine, 49 F.3d

_____ ______

837,

______

844 (1st Cir. 1995).

Clemons'

conduct

violated their

--

_____

Here, the plaintiffs contend that

authorizing

clearly established

the

strip

searches

rights under

--

the Fourth

Amendment and fell below the operative threshold of objective

legal reasonableness.

Clemons disputes the

the level

plaintiffs' position

both as

to

of suspicion required to justify strip searches of

prison visitors, and as to when the legal rule embracing that

level

of suspicion

became "clearly

established."3

On the

____________________

3.

Clemons,

appropriately, makes

the plaintiffs' signing of the

no serious

argument that

"consent to search" forms

on

the day of the visit constitutionally justified the searches.

See
___

Cochrane v. Quattrocchi, 949 F.2d 11, 14 (1st Cir. 1991)

________
___________

("[A]

prison visitor

submitting

to

a strip

cannot provide
is

confronted
search

with

the

or foregoing

choice

between

[sic]

a visit

a 'legally cognizable consent,'"

the very choice to

constitutionally

which [the visitor]

intolerable."

because "it

[is] put that is

(quoting Blackburn
_________

v. Snow,
____

plaintiffs that

a prison-

-1010

first

issue,

visitor strip

suspicion."

we agree

search

with the

must be

Finding no need

predicated

upon

"reasonable

to resolve the second question,

however,

we

conclude

that

the defendant

is

entitled

to

qualified immunity on the record here, accepting arguendo the

________

plaintiffs'

contention as

to when

the relevant

law became

clearly established.

We

begin

by

Amendment protections

as

visitors to

the

examining

the

nature

to which the plaintiffs

MCC.

deference is given to prison

Although

of

the

Fourth

were entitled

a generous

amount

officials on matters of

of

prison

safety, security, and discipline, see, e.g., Bell v. Wolfish,

___ ____ ____
_______

441 U.S. 520, 547-48 (1979), it is clear that visitors do not

relinquish their Fourth Amendment rights at the prison gates.

See Blackburn v.
___ _________

Snow, 771
____

F.2d 556, 563

(1st Cir.

1985).

Prison visitors retain the right to be free from unreasonable

searches and seizures.

13 (1st Cir.

Cochrane v. Quattrocchi, 949 F.2d 11,

________
___________

1991), cert. denied, 504 U.S. 985

_____ ______

(1992).

meaning of "reasonableness" for Fourth Amendment purposes

highly situational.

A search

that

is reasonable

in

The

is

the

prison environment may not be in other contexts less "fraught

with serious security dangers."

Bell, 441 U.S. at 559.

____

The

____________________

771

F.2d 556, 568, 569

(1st Cir. 1985)),

U.S. 985 (1992).

-1111

cert. denied, 504

_____ ______

standard of "reasonableness" that governs searches in a given

context depends, in general, upon a balancing of "the need to

search

against

Camara v.
______

the

invasion

which

the

Municipal Court, 387 U.S. 523,

_______________

search

entails."

536-37 (1967); see

___

also Blackburn, 771 F.2d at 564.

____ _________

In the

volatile

preserve internal

context

security is

of

a prison,

very strong.

the

need

to

See Blackburn,
___ _________

771 F.2d at 562

(quoting Hudson v. Palmer, 468 U.S. 517, 526

______
______

(1984)).

Prison

officials may

visitors

in some manner in order to prevent the smuggling of

contraband (such as

other

side

of

drugs or

the

well have a

need to

weapons) to inmates.

balance,

people

naturally

search

On

have

the

"diminished expectation of privacy" when they enter a prison,

Blackburn, 771 F.2d at

_________

564, and so "those visiting

a prison

cannot

credibly claim to carry with them the full panoply of

rights

they normally enjoy," id.

___

Sowders,
_______

71

F.3d

626,

630

(6th

at 563; see also Spear v.

_________ _____

Cir.

1995)

(discussing

constitutionality of routine visitor searches).

However, a strip search can

hardly be characterized as

routine procedure

or as

minimally intrusive

maintaining prison

security.

its

constitutes

very

nature,

Indeed, "'a strip

an

extreme

means of

search, by

intrusion

upon

personal privacy, as well as an offense to the dignity of the

individual.'"

Loranger,
________

907

Cochrane, 949 F.2d

________

F.2d

233,

235

-1212

at 13

n.6

(quoting Burns
_____

(1st

Cir.

v.

1990)).

Accordingly, a

strip search cannot be

quantum of individualized suspicion.

________________________

justified absent some

See Blackburn, 771 F.2d

___ _________

at 564-65

(invalidating as unconstitutional

requiring

strip

searches

of

all

a prison policy

visitors

without

any
___

particularized suspicion of illegal activity).

In determining

the level
_____

of individualized

suspicion

against which to test the constitutionality of prison-visitor

strip

between

prison

searches with a

view to

respecting the

visitors and

striking the

legitimate

the need

proper balance

privacy expectations

to maintain

of

prison security,

courts have converged upon one common benchmark: the standard

of "reasonable suspicion."

v. Champion, 46
________

116 S. Ct. 387

787 (6th

See Spear, 71 F.3d at

___ _____

F.3d 1013, 1020

(10th Cir.), cert.

_____

(1995); Daugherty v. Campbell, 935

_________
________

Cir. 1991) (Daugherty I), cert.

____________
_____

1060 (1992); Thorne v.

______

denied,
______

F.2d 780,

denied, 502
______

Jones, 765 F.2d 1270, 1277

_____

1985), cert. denied, 475 U.S.

_____ ______

630; Romo
____

U.S.

(5th Cir.

1016 (1986); Hunter v.

______

Auger,
_____

672 F.2d 668, 674 (8th Cir. 1982); accord Varrone v. Bilotti,
______ _______
_______

867

F. Supp.

similarly

albeit

in

1145, 1149

identified

another

constitutionality

the

(E.D.N.Y. 1994).

reasonable

context,

of

a strip

as

the

This

court has

suspicion

standard,

one

search should

See United States v. Uricoechea-Casallas, 946

___ ______________
___________________

by

which

the

be determined.

F.2d 162, 166

(1st Cir. 1991) (stating, in context of border searches, that

"[w]here a search is

not routine (e.g., a strip

____

search), we

-1313

have

applied the

'reasonable suspicion'

standard." (citing

UnitedStates v. Wardlaw, 576F.2d 932, 934-35(1st Cir. 1978)).

____________
_______

Without

deciding

the

reasonable suspicion standard

the

prison

visitor

explicitly state

context

by which

clearly

trivial constraints

strip

554,

create

prison

this

556-57 (6th

Cir.

suspicion" is

That

unfounded

we

now

indeed the

by placing

non-

prison officials to

v. Campbell,
________

33 F.3d

1994) (Daugherty II) (holding

_____________

indicia of

responding

in

standard guards against

searches

reasonable suspicion), but

in

when the

constitutionality of

see Daugherty
___ _________

tips without

officials

or

circuit,4

upon the ability of

search visitors,

uncorroborated

in

to gauge the

prison-visitor strip searches.

or

whether

became clearly established

that "reasonable

proper standard

arbitrary

question

reliability do

that

not

avoids unduly restricting

to

the

demands

of

institutional

thus

security.

preserves

an

legitimate privacy

search.

In

sum,

The reasonable

appropriate

balance

interests and

prison

the

suspicion standard

between

visitors'

government's need

officials

violate

the

to

Fourth

____________________

4.

Clemons

contends that the

was not clearly

1994.

He

reasonable suspicion standard

established in this

observes

that this

court,

published opinion addressing the

reserved

the

searches

require

individualized
Plaintiffs
decisions
that

question,

only

as-yet

suspicion.'"

that

most

recent

suspicion"

standard.

-1414

949

the statement

in other circuits had made

was

visitor

undefined

Cochrane,
________

contend that despite

"reasonable

in its

February

issue before that time, had

saying

"some

circuit as of

strip

'level
F.2d

at

of
13.

in Cochrane,
________

clear by February 1994

indeed

the

governing

Amendment

when

they undertake

a strip

visitor

without reasonable

suspicion of

justify

the

concrete

search.

The

search of

a prison

circumstances that

meaning of

reasonable

suspicion turns on the facts of each particular case.

Plaintiffs can

overcome the

the qualified immunity defense

defendant's assertion

of

only by showing that Clemons'

conduct

was

objectively

established law.

unreasonable in

light

of clearly

Assuming, without deciding, for purposes of

our analysis here, that the reasonable suspicion standard was

clearly

established law by the

date on which the plaintiffs

were strip searched, we conclude that Clemons

qualified immunity.

could have believed that

reasonable official in

is entitled to

his position

there was reasonable suspicion that

the plaintiffs would be bringing drugs to Sharon Wood.5

"reasonable suspicion"

stronger

(1967),

of

than a mere "hunch," Terry

_____

but

something

weaker

wrongdoing is

something

v. Ohio, 392 U.S. 1, 22

____

than probable

cause.

See
___

Alabama v. White, 496 U.S. 325, 330 (1990); Spear, 71 F.3d at

_______
_____
_____

630.

At

minimum,

the

reasonable

suspicion

standard

requires that the decision to search be

factual

information

bearing

at

based on articulable

least

some

indicia

of

____________________

5.

Plaintiffs

required the

do

not

argue

strip searches

that

the

Fourth

to be predicated

stronger than reasonable suspicion.

-1515

Amendment

on any

basis

reliability.

States
______

v.

See, e.g.,
___ ____

Sokolow,
_______

490

White,
_____

U.S.

496 U.S.

1,

at

330; United
______

(1989).

However,

"reasonable suspicion can arise from information that is less

reliable than that required to show probable cause."

496

U.S. at 330.

may

typically

facts or

Although an anonymous tip, standing alone,

fail

anonymous tip that

White,
_____

to

create

reasonable

suspicion,

an

is corroborated in some measure by actual

by other sources may be enough.

United States v. Walker, 7 F.3d 26, 31

_____________
______

See id. at 329-31;

___ ___

(2d Cir. 1993), cert.

_____

denied, 114 S. Ct. 1201 (1994); United States v. McBride, 801

______
_____________
_______

F.2d

1045, 1047-48 (8th

1100 (1987).

Cir. 1986), cert.

_____

denied, 479 U.S.

______

Here, plaintiffs

argue that

the hearsay tip

received

by Detective Herring from his confidential informant, who had

heard it from an anonymous source, did not provide reasonable

suspicion, and that no reasonable official could have thought

differently.

seeks to

with

The difficulty

with this argument

defeat Clemons' claim

of immunity by

notice of facts that were not

is that it

charging him

actually known to him at

the time he made the decision to authorize the searches.

The issue

other

defendant

qualified

Clemons

on appeal

or

immunity.

is whether

potential

The

defendant,

inquiry must

himself acted as a reasonable

determination

can

only be

Clemons, and not

made

"in

is

entitled

focus

on

of

to

whether

official might.

light

any

. . .

That

the

-1616

information

allegedly

[that

Clemons] possessed

unlawful conduct."

McBride
_______

at

the

time of

v. Taylor,
______

his

924 F.2d

386, 389 (1st Cir. 1991); see also Anderson, 483 U.S. at 641;
________ ________

Prokey, 942
______

F.2d at

72.

Here,

there is

no dispute

that

Clemons was

told by

Detective

his staff

Herring

had

and genuinely

learned

confidential informants that

________________________

from

Sharon

believed that

two
unconnected
_________________

Wood's

visitors

were

smuggling drugs into the MCC in her granddaughter's booties.

The plaintiffs

unreasonably

in accepting

conducting further

mistake

nature of

respond by

that led

arguing that

Baker's

report as

investigation.

to

misinformed

to be condoned, we

the totality of the circumstances

in accepting Officer Baker's

value.

the

course

of

without

While the

as to

the

cannot say, on

of this case, that Clemons

was unjustified

Over

true

We disagree.

Clemons being

the tip is not

Clemons acted

their

report at face

five-year

working

relationship, Clemons had grown to trust Baker to provide him

with

reliable information on investigatory matters.

Clemons

provided

testified at

him

with

his deposition

that Baker

accurate information

and,

estimation, was "not one to make assumptions."

Indeed,

had always

in

Clemons'

Similarly, in

Clemons' experience, information provided by Peter Herring to

the

MCC in

a large

always turned out to

to consider Herring

number of

previous investigations

be accurate, and Clemons had

had

thus come

himself to be a reliable and trustworthy

-1717

source of information.

The

plaintiffs do

not allege

that

Clemons' general trust in Baker or in Herring was unjustified

or misplaced.

It

reasonable

is

only

basis

fair

to

to

conclude

believe

that

that

the

Clemons

tip

visitors -- as reported in Baker's memorandum --

been tested for

reliability by both

about

had

Wood's

had already

Herring and Baker,

and

that there was no need for Clemons himself to conduct further

investigation

into

the

tip's

reasonably believed that the

sources.

And,

if

Clemons

tip, as reported, was reliable,

it

would

be inconsistent

with

qualified immunity defense --

reasonable

Clemons

judgments

(1985)

basic

purpose of

the

i.e., to protect an official's

____

from post hoc

_________

attack

-- to

deprive

of that defense merely because the nature of the tip

was, through

him.6

the

See
___

no fault of

United States
_____________

(explaining

that

investigatory stop

erroneous police

based

his own,

erroneously reported

v. Hensley, 469
_______

police

on

U.S. 221,

officers

defensible

who

reliance

bulletin may assert immunity

to

232-33

make

upon

an

an

in civil suit

____________________

6.

There

is

deliberately

no
or

suggestion
systematically

here

that

prison

officials

misreported information

to

Clemons in order to obtain authorizations for strip searches.

Cf. Arizona v. Evans, 115 S. Ct. 1185, 1194 (1995) (O'Connor,
___ _______
_____

J., concurring)
exception

to the

(observing that

exclusionary rule

officer reasonably relied on

making a

even though the

applied where

a police

an erroneous computer record in

false arrest, the same might

computer records relied upon

good faith

not be true where the

were known to be systematically

inaccurate).

-1818

for

Fourth Amendment

Leon-Reyna, 930 F.2d

__________

violations); cf.
___

United States
_____________

396, 399-400 (5th Cir. 1991)

v. De
__

(en banc)

(border officer's reliance

by

dispatcher

Amendment

may

purposes,

be

on erroneous information provided

objectively

even

if

reasonable

error was

for

partly

Fourth

result

of

officer's own negligence).

Once we accept that Clemons

contents

of

Baker's

authorize the

report

in

strip searches,

defensibly relied upon the

making

this case

the

can

viewed (as plaintiffs would characterize it)

an

to

no longer

be

as one in which

official knowingly relied on an uncorroborated, anonymous

tip in carrying

557

decision

out a search.

(rejecting qualified

authorized strip

from "an

search of

anonymous inmate

Cf. Daugherty II, 33 F.3d at

___ _____________

immunity

defense

where

prison visitor based

and . . . a

official

on letters

non-existent person"

and

an uncorroborated assertion

of a corrections officer7).

Instead, Clemons' authorization of

the searches was based on

tip he believed had been received from two unconnected yet

____________________

7.

In Daugherty II, the defendant warden

_____________

letters did

not form

a basis for

contended that he was

conceded that the

reasonable suspicion

entitled to rely on the

the corrections officer.

See id. at 557.

___ ___

statements of

However, there was

no indication in that case that the warden had any reason

be unaware
that

of the information's unreliability

the officer's

statements

here)

statements
were

event, in rejecting the

stated,
the

but

to

or to believe

(unlike Detective

Herring's

independently trustworthy.

In any

warden's argument, the Sixth Circuit

"we do not impose

a duty on

wardens to investigate

reliability of all their officers' conclusions."

557.

-1919

Id. at
___

mutually

corroborating confidential informants, both of whom

Clemons believed had made the highly specific allegation that

visitors

inmate who

we ignore

was

were hiding

drugs in

an infant's

was serving time for a

drug conviction.

that Clemons' assessment of

favorably affected

delivered to the MCC

by

booties for

Nor can

the tip's reliability

his awareness

by Peter Herring,

an

that it

had been

who, to the best

of

Clemons'

knowledge,

had

never

before

provided

prison

officials with information that had turned out to be false.

Viewed

Clemons'

in

this light,

it

is difficult

say that

decision to authorize the searches was "objectively

legally unreasonable."

that "'if there

official's

is a

conduct

Anderson, 483 U.S. at

________

legitimate question as

constitutes a

the official is entitled

641.

Mindful

to whether

an

constitutional violation,

to qualified immunity,'" Singer, 49

______

F.3d at

845 (internal quotations omitted),

Clemons

is entitled to the

we conclude that

protection of that

objectively

reasonable official,

information

in Clemons'

could

to

defense.

presented with all

possession and

An

of the

similarly situated,

very well have believed that there existed a basis for

reasonable suspicion that Wood's

drugs into the MCC.8

Cf.
___

visitors would be smuggling

United States v. Wangler, 987 F.2d

_____________
_______

____________________

8.
any

Plaintiffs do
argument that

precluded

not raise,
the

the existence

and we therefore

tip's focus
of

on

deem waived,

the baby's

individualized suspicion

Katrina Thamert, Phillip Thamert, or Michelle Hatch.

-2020

booties
as to

228,

230

(5th

Cir.

1993) (information

unconnected informants" contributed

provided

by

to reasonable

"two

suspicion

that suspect was carrying drugs).9

IV

We

conclude

qualified immunity

that

defendant

Clemons

from personal liability

is entitled

for his

to

alleged

violation

of the plaintiffs' constitutional right, as prison

visitors,

not to

suspicion that

be strip

they were

searched except

upon reasonable

carrying contraband.

Clemons, in

defensible reliance on written information provided to him by

trusted prison

police

detective

invariably accurate

official, believed

with

in good

proven track

faith

that a

of

feeding

record

investigative information to

the prison

had

learned that two unconnected confidential informants had

___

separately reported

the visitors

the same highly specific allegation that

of a named

female inmate were

smuggling drugs

____________________

9.

Of

course,

reasonable
correct.
1995)

to

say

such

is not to imply
Lowinger
________

("[E]ven

would

that it would

v. Broderick,
_________

erroneous

belief

by

been

have been legally

50 F.3d 61,

decisions

have

65 (1st

officials

may

Cir.
be

entitled to qualified immunity."); Rivera v. Murphy, 979 F.2d

______
______
259, 263

(1st Cir. 1992) ("'The

qualified immunity standard

gives ample room for mistaken judgments by protecting all but

the plainly
law.'"
(per

incompetent or

(quoting Hunter v.
______
curiam)

omitted)).

(internal

Although we

the qualified immunity

(based

existence of

on the

Bryant, 502 U.S.

______
quotation

marks

violate the

224, 229 (1991)

and

citation

sustain the defendant's assertion of

defense, we express no

the legal "correctness" of

had

those who knowingly

opinion as to

any belief that Clemons

facts as

he

knew them)

reasonable suspicion that

may have

concerning the

the plaintiffs

were

engaged in illegal activity.

-2121

into the prison

in her infant

granddaughter's booties.

the record

before us, an objectively

possession

of

situated to

suspicion

this

information

and

Clemons could have decided

to believe

that Sharon

On

reasonable official in

otherwise

similarly

there was reasonable

Wood's visitors

would be

smuggling

properly

drugs into the MCC.

granted

summary

Clemons.

Affirmed.
_________

No costs.
_________

The district court therefore

judgment in

favor

of

defendant

-2222