Swain v. Roe ( 1997 )


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  • 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, for _____________ _____________________
    appellant.
    Douglas I. Louison, with whom Regina M. Gilgun and Merrick & ___________________ __________________ _________
    Louison were on brief, for appellees. _______

    ____________________

    June 25, 1997
    ____________________





















    LYNCH, Circuit Judge. Kelli Swain was subjected to LYNCH, Circuit Judge. _____________

    a strip search and visual body cavity inspection, while being

    held in a cell in the North Reading, Massachusetts police

    station. This search occurred after Swain had been in the

    cell for twenty minutes, and more than an hour after she was

    arrested. She was arrested with her boyfriend as a result of

    his shoplifting; she was suspected of having possessed a

    small baggie of marijuana. The search was ordered, she says,

    by a police officer immediately after he had interrogated

    her, while knowing she was 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. 1983 and Mass.

    Gen. Laws ch. 12, 11H, 11I, alleging that the search

    humiliated her and caused lasting emotional damage. The

    district court granted summary judgment for the defendants.

    The court held that there were no material facts in dispute

    which would support Swain's claims that the search was not

    reasonable under the Fourth Amendment and that the officers

    were not entitled to immunity. We hold that, as alleged by

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



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    a reasonable suspicion, and that the jury should have the

    opportunity to resolve the factual disputes pertinent to the

    issue of whether the officers were entitled to the

    protections of qualified immunity. Swain fails, however, to

    meet the exacting standards for municipal liability under

    1983, even on her version of the facts. 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. On May 18, 1993,

    Kelli Swain and her boyfriend, Christopher Milbury, went

    apartment hunting in the Danvers, Massachusetts area. Around

    10:00 a.m., after the couple had been driving for a little

    while, Milbury told Swain that he needed to pick up some

    things at Moynihan Lumber. Swain waited in the car while

    Milbury went into the store; he was gone about ten minutes.

    When Milbury got back, he placed a bag behind the seat and

    started to leave the parking lot. As they drove out of the

    parking lot, Swain saw 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. She began questioning

    Milbury about what was going on. Then, after they had driven



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    200 or 300 yards, the police cruiser, which had been

    following the couple since the parking lot, turned on its

    blue lights and its siren; Milbury pulled their car over.

    Officer Robert Marchionda then approached the vehicle and

    Milbury got out of the car. Swain remained in the car for a

    minute or two, and then got out when she saw Milbury being

    handcuffed. As Swain got out, she dropped a baggie of

    marijuana on the ground about three feet away from the car.

    Officer Marchionda had seen Swain put her hands behind her

    back and drop an object onto the grass, but could not, at

    that point, identify the object. Officer Marchionda radioed

    for backup, and another officer, Officer Romeo, arrived soon

    thereafter. Swain then approached the officers, but was

    stopped by one of them, who restrained her with his hands.

    She asked what was going on, and was told that Milbury was

    suspected of taking things from Moynihan Lumber. Officer

    Marchionda then arrested Swain and handcuffed her. While he

    was handcuffing her, he saw that the dropped object was a

    baggie of marijuana. He retrieved it. Swain was pat frisked

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

    When the police searched the car, they found $400

    worth of hardware in the trunk, which had been taken from

    another store in Gloucester, Massachusetts, and another $400

    worth of sawblades, wrapped in a hardware flyer, under the

    front seat. Swain was surprised to see the merchandise



    -4- 4













    there. The police implied that she was an accomplice to

    Milbury's theft; she kept saying that she did not know

    anything about it. Milbury also told the police that Swain

    was innocent.

    Neither of the officers ever asked her about the

    marijuana on the ground. Swain did not see anyone pick up

    the marijuana and did not know if anyone had seen her drop

    it.

    After about thirty minutes at the scene, Swain and

    Milbury were transported in a police cruiser to the North

    Reading Police Station. When she got to the station, her

    handcuffs were removed. Swain was seated at a booking desk,

    and an officer had her sign a rights card. Matron Laura

    Spinney, the chief of police's secretary, was called to the

    booking desk because a female was under arrest.

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

    bathroom. Matron Spinney escorted her to a bathroom, but

    did not come in with her. Swain was allowed to close the

    door almost all of the way, leaving it open just a little.

    Spinney stood outside the door to the room, where she could

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

    Swain then returned to the booking area, and was told that

    she could make a phone call. She was shown to a small

    office, and a police officer stood outside. She called her

    attorney and spoke with him for five to ten minutes.



    -5- 5













    While Swain was seated in the booking area, her

    pocketbook was searched by Spinney. Spinney found cigarette

    rolling papers in the pocketbook. No one discussed these

    papers with Swain. At that point, one of the officers

    advised Swain that marijuana had been found at the scene and

    that she was going to be charged in connection with it.

    Swain denied that it was her marijuana.

    Swain was then fingerprinted and photographed.

    Officer Ed Hayes, the prosecuting officer and detective

    department supervisor, ordered Matron Spinney to take Swain

    to a cell. Spinney pat frisked Swain before taking her to

    the cell and found nothing on her. Swain was left alone in

    the cell for about twenty minutes. According to Swain,

    Sergeant Hayes then came to her cell and 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 stayed with Swain in the

    cell area for approximately one minute. He has no

    recollection of what he discussed with Swain, but asserts

    that it would be normal procedure for him to talk to

    detainees to advise them about their arraignments. He does



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    not recall interrogating Swain about Milbury's activities,

    but cannot state that he did not do so. Milbury, who was

    located in another cell where he could hear but not see

    Swain, stated that he heard Hayes talking to 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 to strip search Swain. It is Hayes'

    testimony that he believes he would have ordered such a

    search prior to speaking with Swain. Spinney does not know

    whether the search was ordered before or after Hayes spoke

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

    when he originally told Spinney to take Swain to the cell.

    Spinney states, however, that the order to strip search came

    almost immediately after she brought Swain to the cell, and

    not a significant amount of time later.

    Swain could not understand why she was being

    searched and began crying again. Spinney then ordered Swain

    to remove all of her clothing except for her bra. Spinney

    shook out each item as Swain took it off. Spinney then made

    Swain bend over and spread her buttocks. Swain was very

    upset and shaking uncontrollably the entire time. Swain was

    then told she could get dressed. Spinney found nothing

    during her search. The entire procedure lasted fifteen

    minutes. Hayes had not told Spinney what to look for, but



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    Spinney knew that marijuana had been found at the scene, and

    assumed that she was looking for drugs.

    Swain asserts that, before she was asked to strip,

    Spinney assured Swain that the video camera in the cell area

    was already off. Swain did not see her turn the camera off.

    Chief of Police Henry Purnell testified, however, that the

    station cameras, including the one in the female cell, are

    constantly left on. Videotapes are sometimes made from these

    cameras, but the Department has no policies or procedures

    concerning the making, storage, or retention of these tapes.

    Matrons are instructed to turn the cell camera off, by

    pressing a button, when conducting a search. Spinney states

    that she turned the camera off with a wall switch before

    searching Swain, but does not recall telling Swain that the

    camera was off or making any comments about the camera at

    all.

    Milbury, who had an extensive criminal record, was

    never strip searched. Hayes was aware of Milbury's history

    of drug convictions and knew that Milbury was on probation,

    having pulled the records while booking Milbury. Swain had

    no prior criminal convictions.

    Officer Hayes, for his part, tells a different

    story. He asserts that he ordered the strip search of Swain

    immediately upon his arrival at the booking desk, which

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



    -8- 8













    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 informed him that Swain was a

    principal suspect in a narcotics incident. He also asserts

    that he suspected Swain of carrying a concealed weapon,

    although he acknowledges that this was a generalized

    suspicion of narcotics suspects, rather than a 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 were eventually "nol prossed" or

    continued without a finding. Swain suffered continuing

    emotional trauma as a result of the search and sought

    counseling.

    The Town of North Reading's policy on strip

    searches is outlined in a memo on "Inventory Search Policy,"

    prepared in 1989 by training officer Lieutenant Edward Nolan.

    The Policy states that: "A strip search of the arrestee is

    warranted only if the police have probable cause to believe

    that the arrestee is concealing contraband or weapons on his

    body." 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.





    -9- 9













    The Municipal Police Institute (MPI), a statewide

    police association, publishes a book called "Police Manual:

    Policies & Procedures." Chief Purnell testified that the

    North Reading police adhere to the MPI policies. The

    relevant MPI policy is as follows:

    A strip search of an arrestee is
    warranted only if officers have
    reasonable suspicion to believe that the
    arrestee is concealing contraband or
    weapons on his body.

    1. All body strip-searches must be approved
    by the officer-in-charge, who shall
    consider the following question:

    Is the crime one that is normally
    associated with weapons or
    contraband?

    Only if the answer to this question is
    yes and there is a reasonable suspicion
    that the arrestee has weapons or
    contraband on his person will a body
    strip-search be authorized.

    2. Body cavity searches should not be
    conducted without the express approval
    of the officer-in-charge, and require a
    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. Hayes testified that it was his

    policy to strip search individuals whenever narcotics were

    involved in the case. Nonetheless, he did not order a strip

    search of Milbury.



    II.


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    Swain claims, under 42 U.S.C. 1983 and Mass. Gen.

    Laws ch. 12, 11H, 11I, that Laura Spinney, Edward Hayes,

    and the Town of North Reading violated her rights under the

    United States and Massachusetts Constitutions by subjecting

    her to an unreasonable search. On defendants' motion for

    summary judgment, the district 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 Fourth Amendment. It

    thought Klein unaffected by Bell v. Wolfish, 441 U.S. 520 _____ ____ _______

    (1979). The district court further held that the individual

    defendants were, in any event, entitled to qualified immunity

    from suit. As to the Massachusetts law claims, the court

    found that, in this area, Massachusetts constitutional law

    tracked the federal standards. Finally, the district court

    found that Swain had failed to meet the exacting standards

    for municipal liability under 1983.

    Swain argues on appeal that the police must have

    probable cause to believe that an arrestee is 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 a reasonable suspicion, no such suspicion was

    present and that the officers are thus not entitled to the

    protections of qualified immunity.







    -11- 11













    We review the district court's grant of summary

    judgment de novo. EEOC v. Amego, Inc., 110 F.3d 135, 141 _______ ____ ___________

    (1st Cir. 1997).

    III.

    A strip and visual body cavity search of an

    arrestee must be justified, at the least, by a reasonable

    suspicion. Because a jury could find that Officer Hayes

    acted without a reasonable suspicion that Swain was

    concealing drugs or weapons, we find that Swain has stated a

    claim against the individual defendants sufficient to

    withstand a motion for summary judgment. Furthermore, while

    some courts have suggested that a higher standard may be ______

    necessary to justify a strip search and visual body cavity

    inspection, it was clearly established at the time of the

    search that the Fourth Amendment requires at least a _________

    reasonable suspicion to conduct these types of searches.

    Significant factual disputes remain, rendering it impossible

    to resolve conclusively the immunity 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 full

    search of the person is not only an exception to the warrant

    requirement of the Fourth Amendment, but is also a

    'reasonable' search under that amendment." United States v. _____________



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    Robinson, 414 U.S. 218, 235 (1973). Thus, under Robinson, if ________ ________

    the arrest was lawful, a searching officer does not need to

    have any further justification for performing a full body

    search of an arrestee. See United States v. Bizier, 113 F.3d ___ _____________ ______

    214, 217 (1st Cir. 1997). Moreover, a search incident to

    arrest need not occur at the scene of the arrest, but "may

    legally be conducted later when the accused arrives at the

    place of detention." United States v. Edwards, 415 U.S. 800, _____________ _______

    803 (1974).

    However, Robinson did not hold that all possible ________

    searches of an arrestee's body are automatically permissible

    as a search incident to arrest. To the contrary, any such

    search must still be reasonable:

    Holding the Warrant Clause inapplicable
    to the circumstances present here does
    not leave law enforcement officials
    subject to no restraints. This type of
    police conduct "must [still] be tested by
    the Fourth Amendment's general
    proscription against unreasonable
    searches and seizures."

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

    1, 20 (1968)). In Robinson itself, the Court noted that the ________

    search at issue, while thorough, did not have "extreme or

    patently abusive characteristics." 414 U.S. at 236 (citing

    Rochin v. California, 342 U.S. 165 (1952)). Later, in ______ __________

    Illinois v. Lafayette, 462 U.S. 640 (1983), the Court ________ _________

    explicitly stated that "[w]e were not addressing in Edwards, _______

    and do not discuss here, the circumstances in which a strip


    -13- 13













    search of an arrestee may or may not be appropriate." Id. at ___

    646 n.2. "Robinson simply did not authorize" a strip and ________

    visual body cavity search. Fuller v. M.G. Jewelry, 950 F.2d ______ ____________

    1437, 1446 (9th Cir. 1991); see also Mary Beth G. v. City of ________ ____________ _______

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

    court simply did not contemplate the significantly greater

    intrusions that occur[]" in a visual body cavity

    inspection.).

    A strip and visual body cavity search thus requires

    independent analysis under the Fourth Amendment. In Bell v. ____

    Wolfish, 441 U.S. 520 (1979), the Supreme Court noted that _______

    "[t]he test of reasonableness under the 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 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.

    Id. In Wolfish, the Supreme Court applied this balancing ___ _______

    test to a prison policy that required arraigned pre-trial

    detainees to "expose their body cavities for visual

    inspection as a part of a strip search conducted after every

    contact visit with a person from outside the institution."

    Id. at 558. Noting that "this practice instinctively gives ___


    -14- 14













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

    that visual body cavity searches can "be conducted on less

    than probable cause." Id. at 560. In so holding, Wolfish ___ _______

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

    of general application that a search be justified as

    reasonable under the circumstances." Weber v. Dell, 804 F.2d _____ ____

    796, 800 (2d Cir. 1986).

    In applying the Wolfish balancing test to searches _______

    of the type to which Swain was 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 only to

    strip naked in front of a stranger, but also to expose the

    most private areas of her body to others. This is often, as

    here, done while the person arrested is required to assume

    degrading and humiliating positions. Our circuit has

    "recognize[d], as have all courts that have considered the

    issue, the severe if not gross interference with a person's

    privacy that occurs when guards conduct a visual inspection

    of body cavities." Arruda v. Fair, 710 F.2d 886, 887 (1st ______ ____

    Cir. 1983). The Seventh Circuit has described "strip

    searches involving the visual inspection of the anal and

    genital areas as demeaning, dehumanizing, undignified,

    humiliating, terrifying, unpleasant, embarrassing, repulsive,

    signifying degradation and submission." Mary Beth G., 723 _____________



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    F.2d at 1272 (internal quotation marks omitted); see also ________

    Wood v. 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 personal privacy, as well as an

    offense to the dignity of the individual."); Kennedy v. Los _______ ___

    Angeles Police Dep't, 901 F.2d 702, 711 (9th Cir. _______________________

    1990)("Strip searches involving the visual exploration of

    body cavities are dehumanizing and humiliating.").

    On the other side of the scales, courts must weigh

    the legitimate needs of law enforcement. Institutional

    security has been found to be a 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"). Some

    courts have held that a warrantless strip search may also be

    justified by the need to discover and preserve concealed

    evidence of a crime. See, e.g., Justice v. Peachtree City, ___ ____ _______ ______________

    961 F.2d 188, 193 (11th Cir. 1992). But see Fuller, 950 F.2d _______ ______

    at 1446 (strip and visual body cavity search with less than

    probable cause only permitted to protect institutional safety

    and security; search for evidence must be justified by

    probable cause).



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    Balancing these interests, courts have concluded

    that, to be reasonable under Wolfish, strip and visual body _______

    cavity searches must be justified by at least a reasonable

    suspicion that the arrestee is concealing contraband or

    weapons.1 See, e.g, Justice, 961 F.2d at 192; Masters v. ___ ___ _______ _______

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

    at 802; Stewart v. Lubbock County, 767 F.2d 153, 156 (5th _______ _______________

    Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. _____ ________

    1984); Mary Beth G., 723 F.2d at 1273. This court has held _____________

    that the reasonable suspicion standard is the appropriate one

    for justifying strip searches in other contexts. See Wood, ___ ____

    89 F.3d at 929 (prison visitors); United States v. _______________

    Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991)(non- ___________________

    routine border searches); cf. Burns v. Loranger, 907 F.2d ___ _____ ________

    233, 236-38 (1st Cir. 1990) (officers protected by qualified

    immunity for warrantless strip search of arrestee where there

    were exigent circumstances and probable cause to believe

    controlled substance would be found on arrestee's person).

    Accordingly, it is clear that at least the reasonable

    suspicion standard governs strip and visual body cavity

    searches in the arrestee context as well.




    ____________________

    1. As noted above, the Ninth Circuit has held that, absent a
    threat to institutional security, the higher showing of
    probable cause is required to justify such a search. Fuller, ______
    950 F.2d at 1446.

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    Defendants, and the court below, rely upon United ______

    States v. Klein, 522 F.2d 296 (1st Cir. 1975). In that case, ______ _____

    the 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. This court approved that search as ___

    "[a] post-arrest search of the person, plainly approved by

    Edwards," and found that a lack of individualized suspicion _______

    that the suspect was harboring evidence did not render the

    search unreasonable. Id. at 300 & n.2. ___

    Klein was decided before significant Supreme Court _____

    precedent in the area, and we are bound by the Supreme

    Court's developing doctrine. Klein predates Lafayette, _____ _________

    decided in 1983, where the Supreme Court stated that Edwards _______

    did not answer the question of when a strip search was

    appropriate. Lafayette, 462 U.S. at 646 n.2. Klein also _________ _____

    predated Wolfish, with its explicit recognition of the _______

    invasiveness of strip and visual body cavity searches.

    Wolfish, 441 U.S. at 558. Subsequent to Klein, and sensitive _______ _____

    to the developing doctrine, this circuit has repeatedly

    recognized that strip and/or visual body cavity searches are

    not routine, and must be carefully evaluated. See Burns, 907 ___ _____

    F.2d at 236-37; Bonitz v. Fair, 804 F.2d 164, 170-72 (1st ______ ____

    Cir. 1986); Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir. _________ ____

    1985); Arruda, 710 F.2d at 887. Accordingly, to the extent ______

    that Klein held that strip and visual body cavity searches _____



    -18- 18













    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 a jury could find that the search was

    unreasonable and thus violated the Fourth Amendment.

    Accordingly, we find that Swain has stated a trialworthy

    claim under 42 U.S.C. 1983. On these facts, there appears

    to be the distinct possibility that Officer Hayes ordered the

    strip search in retaliation for his failed interrogation of

    Swain in her cell, imposing sexual humiliation on her as a

    punishment for what he perceived as her non-cooperation.

    Hayes' angry response to Swain's inability to provide

    information about Milbury's activities and the timing of the

    search raise this inference. This possibility distinguishes

    this 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 invalidate a search for exclusionary rule
    purposes, so long as the search was objectively reasonable
    under the circumstances. Whren, however, also stressed that _____
    "the Constitution prohibits selective enforcement of the law
    based on considerations such as race," id. at 1774, and, we ___

    -19- 19













    whether, on these facts, an objective officer would have had

    a reasonable suspicion that Swain was concealing drugs or

    contraband on her person. Three factors suggest that there

    were not adequate grounds to justify the strip and visual

    body cavity search of Swain. First, there is the timing of

    the search. Swain had been alone in the cell for some period

    of time before she was searched and no one thought it

    important to search her before she angered Hayes by not

    giving him the information he sought. Perhaps more

    importantly, she had been allowed to go to the bathroom by

    herself, unobserved, prior to being taken to her cell. This

    also indicates that no one thought she had secreted drugs in

    her private parts. Cf. Burns, 907 F.2d at 238 (common ___ _____

    knowledge that drug users and dealers with 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 the destruction of concealed evidence,

    Swain already had had ample opportunity to destroy any such

    evidence. 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 U.S. 335, 344 ______ ______
    (1986), balances different interests than those in a 1983
    action. ("While we believe the exclusionary rule serves a
    necessary purpose, it obviously does so at a considerable
    cost to the society as a whole, because it excludes evidence
    probative of guilt. . . . On the other hand, a damages
    remedy for [a Fourth Amendment violation] imposes a cost
    directly on the officer responsible . . ., without the side
    effect of hampering a criminal prosecution.").

    -20- 20













    evidence still existed, further delay to obtain a warrant

    would not have significantly increased the risk of

    destruction. This was particularly true because 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 cavity searches is

    institutional security. It is uncontroverted that, prior to

    her arraignment, Swain was the only person in the women's

    holding cell of the North Reading Police Station. Her

    arraignment was later the same afternoon, and she was then

    released, on her own recognizance. There was no risk that

    she would come into contact with other prisoners, or be able

    to smuggle contraband or weapons into a secure environment.

    Hayes stated that he believed that Swain, as a narcotics

    suspect, might have been carrying a concealed weapon but he

    did not assert that Swain posed a threat to his safety or

    that of others in the police station. The institutional

    security justification thus appears to be absent from this

    case.

    Third, there is the differential treatment by the

    police of the young woman and her boyfriend. Swain and

    Milbury were first pulled over because of Milbury's

    shoplifting activities. Officer Hayes stated that, prior to

    searching Swain, he had examined both Swain's and Milbury's



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    records. Officer Hayes knew that Milbury was on probation and

    had a history of drug convictions. By contrast, Swain did

    not have a criminal record. Milbury had told officers,

    including Hayes, that the marijuana was his. Yet Milbury was

    not strip searched. If there was an objective basis -- apart

    from retaliation -- for stripping Swain, it would have been

    objectively reasonable, and more so, to search Milbury as

    well.

    On the other hand, Swain did drop a baggie of

    marijuana at the scene of the crime. Officer Hayes expressed

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

    a strip search was justified whenever narcotics are involved

    in the case. This is not consistent with either the Town

    policy, which requires probable cause, or the MPI policy,

    which requires an individualized suspicion, even where the

    crime involves contraband or weapons. The record does not

    reveal how much marijuana was in the baggie Swain dropped,

    nor does it reveal whether possession of that amount

    constitutes a misdemeanor or a felony under Massachusetts

    law. Nothing in the record suggests that Swain was suspected

    of being a distributor of marijuana. The fact that Swain may

    have possessed some unspecified amount of marijuana is not

    enough to overcome, as a matter of law, the factors,

    discussed above, under which a jury could find the search of

    Swain unreasonable.



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    Accordingly, we hold that a jury could lawfully

    find that there was no objectively reasonable basis for strip

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

    claim for violation of her Fourth Amendment right to be free

    from unreasonable searches that survives defendants' motion

    for summary judgment.

    C. Qualified Immunity _____________________

    Defendants assert that they are, in any event,

    entitled to qualified immunity from suit. There are two

    prongs to the qualified immunity analysis. First, was the

    constitutional right in question clearly established at the

    time of the alleged violation? St. Hilaire v. Laconia, 71 ___________ _______

    F.3d 20, 24 (1st Cir. 1995). That is a question of law for

    the court. Elder v. Holloway, 510 U.S. 510, 516 (1994). _____ ________

    Second, would a reasonable, similarly situated official

    understand that the challenged conduct violated that

    established right? St. Hilaire, 71 F.3d at 24. ___________

    The Fourth Amendment right to be free from

    unreasonable strip searches has long been clearly established

    in this circuit, as elsewhere. See Burns, 907 F.2d at 236; ___ _____

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

    . . in 1977, [there was] a 'clearly established' Fourth

    Amendment right to be free of unreasonable searches."). As

    discussed above, Klein's holding that such a search is a _____

    reasonable search incident to arrest had been abrogated by



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    subsequent Supreme Court and First Circuit cases, and had

    been squarely rejected by the other circuit courts to

    consider the issue. See Fuller, 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 in Klein are __ _____

    only constitutional where there is a reasonable belief that

    arrestee is concealing 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 searches of arrestees was unconstitutional, and

    citing "ten opinions from seven circuits" that refused to

    condone such searches). Defendants themselves agree that the

    search must be evaluated under the reasonableness standard

    articulated by the 1979 Supreme Court decision in Wolfish. _______

    The question is thus whether an objectively

    reasonable officer would understand that a strip search of

    Swain was, under these circumstances, unreasonable. This

    prong of the inquiry, 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. 2 Nahmod, Civil Rights and Civil Liberties ____________________________________





    -24- 24













    Litigation: The Law of Section 1983 8.08, at 136-39 (3d ed. ___________________________________

    1991).

    The ultimate question of whether a
    reasonable police officer, on the basis
    of information known to him, could have
    believed his actions were in accord with
    constitutional rights is a question of
    law, subject to resolution by the judge
    not the jury. But if there is a factual
    dispute, that factual dispute must be
    resolved by a fact finder.

    St. Hilaire, 71 F.3d at 24 n.1 (internal citations omitted); ___________

    Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1041 (1st Cir. __________________ ______

    1988)("While the qualified immunity inquiry is ultimately a

    question of law, it may also necessitate determining certain

    of the essential facts.")(citing Anderson v. Creighton, 483 ________ _________

    U.S. 635 (1987)); see also Consolo v. George, 58 F.3d 791, ________ _______ ______

    794 (1st Cir.) (where law is clearly established, and there

    is ample evidence that officers acted unreasonably, proper to

    submit issue of objective reasonableness to the jury on

    special interrogatories), cert. denied, 116 S. Ct. 520 _____________

    (1995).

    We recognize that the immunity question should be

    resolved, where possible, in advance of trial. See, e.g., ___ ____

    Veilleux v. Perschau, 101 F.3d 1, 2 (1st Cir. 1996). ________ ________

    However, disposition of the question on summary judgment is

    not always possible. Here, some material facts are

    significantly in dispute. Swain's story and that of Officer

    Hayes conflict on the timing of the relevant events. Some



    -25- 25













    proffers are supported or contradicted by other witnesses,

    including Spinney and Milbury. Hayes contends that, as the

    officer in charge of the investigation, he ordered the search

    immediately upon being informed that a narcotics violation

    had occurred. The timing of when the search was ordered is

    essential to a determination of whether defendants' conduct

    was objectively reasonable. There are thus factual issues,

    potentially turning on credibility, that must be resolved by

    the trier of fact. Only after the resolution of these

    conflicts may the trial court apply the relevant law on

    objective reasonableness.3

    We also recognize that police officers are

    protected in close cases by the doctrine of qualified

    immunity, and that immunity serves to protect law enforcement

    from the chilling threat of liability. Vargas-Badillo v. ______________

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

    1997); Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir. _____ _________________

    1997) (patent violation of law necessary to strip police

    officers of qualified immunity). On the other hand,

    qualified immunity does not protect "those who knowingly

    violate the law." Malley v. Briggs, 475 U.S. 335, 341 ______ ______

    ____________________

    3. In St. Hilaire, we noted that the proper division of ____________
    functions between judge and jury on the objective
    reasonableness inquiry may be accomplished either through
    special interrogatories or through carefully structured jury
    instructions. St. Hilaire, 71 F.3d at 24 n.1; see also ___________ ________
    Nahmod, supra, 8.08, at 137. We leave that decision here _____
    to the trial court.

    -26- 26













    (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 "a fairly

    wide zone of protection." Roy v. Inhabitants of the City of ___ ___________________________

    Lewiston, 42 F.3d 691, 695 (1st Cir. 1996). On the facts as ________

    related by Swain, Officer Hayes used a warrantless strip

    search and visual body cavity inspection as a tool to

    humiliate and degrade her in retaliation for her refusal to

    respond to interrogation.

    Independently of the issue of allegations that

    Officer Hayes deliberately violated the law in order to

    retaliate, as forbidden by Malley, Swain also asserts the ______

    search is not, on its facts, objectively reasonable. This

    search, on Swain's allegations, occurred after she had ample

    opportunity to dispose of any hidden evidence and when she

    was alone in a monitored cell, posing no danger to others

    that might justify hastily proceeding without a warrant.

    Such allegations, if true, do not represent a "close case"

    but a flagrant violation 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 North Reading is

    liable for the injuries that she suffered. The Supreme Court





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    has recently clarified the necessary showing for a claim of

    municipal liability under 1983:

    [I]n Monell and subsequent cases we have ______
    required a plaintiff seeking to impose
    liability on a municipality under 1983
    to identify a municipal "policy" or
    "custom" that caused the 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. The plaintiff must
    also demonstrate that, through its
    deliberate conduct, the municipality was
    the "moving force" behind the injury
    alleged. That is, a plaintiff must show
    that the municipal action was taken with
    the requisite degree of culpability and
    must demonstrate a direct causal link
    between the municipal action and the
    deprivation of federal rights.

    Board of the County Comm'rs v. Brown, 117 S. Ct. 1382, 1388 ___________________________ _____

    (1997) (discussing Monell v. 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 and who may

    authorize them. This failure to train, Swain alleges, rose

    to the level of 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.




    -28- 28













    The Supreme Court addressed failure to train claims

    in Brown: _____

    We concluded in Canton that an ______
    "inadequate training" claim could be the
    basis for 1983 liability in "limited
    circumstances." We spoke, however, of a
    deficient training "program," necessarily
    intended to apply over time to multiple
    employees. Existence of a "program"
    makes proof of fault at least possible in
    an inadequate training case. If a
    program does not prevent constitutional
    violations, municipal decisionmakers may
    eventually be put on notice that a new
    program is called for. Their continued
    adherence to an approach that they know
    or should know has failed to prevent
    tortious conduct by employees may
    establish the conscious disregard for the
    consequences of their action -- the
    "deliberate indifference"--necessary to
    trigger municipal liability.

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

    378 (1989)).

    Swain does not, however, point to any other

    incidents in which the North Reading police force violated

    the rights of arrestees through strip and visual body cavity

    searches. There was thus "no notice to the municipal

    decisionmaker, based on previous violations of federally

    protected rights, that his approach is inadequate." Id. ___

    The Supreme Court has left open the possibility

    that a failure-to-train claim can succeed without showing a

    pattern of constitutional violations. "[I]n a narrow range

    of circumstances, a violation of federal rights may be a

    highly predictable consequence of a failure to equip law


    -29- 29













    enforcement officers with specific tools to handle recurring

    situations." Id. at 1391. ___

    This is not that case. Officer Hayes and Chief

    Purnell agreed that every officer was supplied with policy

    guidelines, including periodic updates. Lieutenant Nolan's

    memo requiring strip searches to be justified by probable

    cause was such an update. The police officers also agreed

    that the MPI, colloquially known as the "police manual," was

    to be followed by, and was available to, the North Reading

    force. Apparently, not all the officers had a consistent

    understanding of those materials. However, it is undisputed

    that North Reading did have an appropriate policy that was

    distributed to the force; absent prior claims, it cannot be

    reasonably inferred that Chief Purnell knew, or should have

    known, that his officers were not executing that policy.

    Accordingly, Swain cannot make the requisite showing of

    "deliberate indifference" to her constitutional rights. We

    affirm the grant of summary judgment as to the Town of North

    Reading.

    E. State Law Claim __________________

    The Massachusetts Declaration of Rights, article

    14, gives every person the right to 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



    -30- 30













    either federal or state law. The district court concluded

    that the protections of article 14 tracked the Fourth

    Amendment protections of the federal Constitution, and that

    the search of Swain was reasonable under both federal and

    state law. We agree that cases like Rodriques v. Furtado, _________ _______

    575 N.E.2d 1124 (Mass. 1991), indicate that the state

    constitution provides at least the level of protection

    against strip and visual body cavity searches as does the

    federal Constitution. However, in some instances, the

    Supreme Judicial Court has concluded that "art[icle] 14

    provides more substantive protection to criminal defendants

    than does the Fourth Amendment." Commonwealth v. Upton, 476 ____________ _____

    N.E.2d 548, 556-57 (Mass. 1985) (rejecting federal standard

    for determining probable cause based on confidential

    informant tips); see also Commonwealth v. Blood, 507 N.E.2d ________ ____________ _____

    1029 (1987). The Supreme Judicial Court has also noted that

    the Massachusetts law on body cavity searches under article

    14 remains uncharted territory. Rodriques, 575 N.E.2d at 884 _________

    n.8. The SJC did remark, however, that the federal cases on

    searches in prisons were not "germane" to a body cavity

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

    Fourth Amendment rights of prisoners and their visitors."

    Id. (citations omitted). This remark certainly suggests the ___

    possibility that Massachusetts law might place greater





    -31- 31













    limitations on the use of strip and visual body cavity

    searches of arrestees than the federal Constitution does.

    We need not attempt to predict fully what course

    Massachusetts law will take. The Massachusetts Constitution

    certainly does not provide less protection than federal law. ____

    Having found that the search of Swain may have been

    objectively unreasonable under the federal Constitution, 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 perpetrated by "threats, intimidation, or

    coercion" as required under Massachusetts law. See, e.g., ___ ____

    Planned Parenthood League v. Blake, 631 N.E.2d 985, 990 ___________________________ _____

    (Mass. 1994). The Supreme Judicial Court has accepted that a

    "threat" may be defined as an "exertion of pressure to make

    another fearful or apprehensive of injury or harm"; that

    "intimidation" may be defined as "putting [a person] in fear

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

    "coercion" may be defined as the application of physical or

    moral 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



    -32- 32













    resistance to her questioning. This could indeed constitute

    "intimidation" or "coercion" within the meaning of the

    statute.

    The judgment of the court below is affirmed with affirmed ________

    respect to the Town of North Reading, and reversed with reversed ________

    respect to the individual defendants.









































    -33- 33