Luis A. Serna v. Kevin Goodno

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3441
___________
Luis A. Serna, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
Kevin Goodno; Jerry Zimmerman, *
*
Defendants - Appellees. *
___________
Submitted: November 12, 2008
Filed: June 3, 2009
___________
Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
___________
MELLOY, Circuit Judge.
Luis A. Serna is an involuntarily civilly committed “sexually dangerous person”
currently detained as part of the Minnesota Sex Offender Program (the “Program”)1
at a treatment facility in Moose Lake, Minnesota. Staff at Moose Lake discovered a
cell-phone case in a common area, considered cell phones to be security and treatment
risks, and began to search for a suspected contraband phone. They first searched the
common area and then viewed a surveillance videotape, but they found no phone and
1
We previously discussed the term “sexually dangerous person” and the
Minnesota Sex Offender Program in Senty-Haugen v. Goodno, 462 F.3d 876, 880–81
(8th Cir. 2006).
were unable to determine who had dropped the case. Administrators next instituted
facility-wide, visual body-cavity searches of all patients. The body-cavity searches
did not result in discovery of a phone.
Serna brought a 42 U.S.C. § 1983 civil-rights claim against a Program
administrator and against the head of Minnesota’s Department of Human Services in
their official and individual capacities. Serna alleged that the search was unreasonable
under the Fourth Amendment of the U.S. Constitution and sought damages and
injunctive relief. The district court2 held that the state had not waived its sovereign
immunity and that the Eleventh Amendment of the U.S. Constitution barred Serna’s
official-capacity claims for damages. Regarding Serna’s other claims, the district
court granted summary judgment, holding that the search was not constitutionally
unreasonable. In the alternative, the district court rejected the individual-capacity
claims, holding that Serna failed to allege sufficient personal involvement by the
present defendants.
Serna does not appeal the Eleventh Amendment dismissal of the official-
capacity claims for damages. Regarding the official-capacity claims seeking
injunctive relief and the individual-capacity claims, the particular facts of Serna’s case
present a close question of constitutional law, but, ultimately, we hold that the search
was not unreasonable. Accordingly, we affirm the judgment of the district court.
2
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of Susan Richard
Nelson, United States Magistrate Judge for the District of Minnesota.
-2-
I. Background
Prior to his commitment, Serna had been convicted of sex offenses and had
completed his criminal sentences. A state court determined in civil proceedings in
2000 that Serna was a “sexually dangerous person” and committed him to the custody
of the Program for an indeterminate number of years pending completion of his
treatment. The Program has held Serna in civil custody for approximately nine years.3
Staff discovered a cell-phone case at the Moose Lake facility on October 28,
2003, in a common area accessible by patients, staff and some visitors. Staff searched
the common area where they discovered the case, but they found no phone. Staff then
viewed a surveillance videotape of the common area. The videotape revealed some
identifiable patients, but staff were unable to determine whether one of the identifiable
patients had dropped the case. The defendants claim that, based on this information,
administrators suspected a patient was the source of the cell-phone case (and
potentially harbored a phone) but believed they could not narrow their suspicion to
any one patient or group of patients. Administrators ordered facility-wide room
searches and visual body-cavity searches to find a contraband phone. There is no
evidence to suggest that the less-invasive room searches preceded the visual body-
cavity searches.
Teams consisting of two male staff members conducted the visual body-cavity
searches on the patients, all of whom were male. The teams conducted the searches
3
The Program has a duty “to provide care and treatment” to committed persons
in its Moose Lake facility, Minnesota Statute § 246B.02, and it attempts to teach
detainees how to control their dangerous sexual behaviors so that they can eventually
return to the community. Serna submitted a petition for discharge in 2006. The State
denied his petition, in part, because he “failed to explain why he was no longer in need
of in-patient treatment and supervision.” Serna v. Goodno, No. A06-331, 2006 WL
1985765, at *1 (Minn. Ct. App. July 18, 2006) (unpublished).
-3-
pursuant to written and oral instructions that directed staff members to ask for
compliance with the search, conduct each search individually in a large private
bathroom, and visually inspect the patients’ bodies according to a set protocol. As a
part of that protocol, staff asked each patient to lift his genitals. Staff also instructed
each patient to turn, bend over slightly, and spread his buttocks. There was no
physical contact with the patients during the searches. It appears undisputed that
personnel conducted searches of approximately 150 patients. Serna does not contend
that facility personnel executing the searches breached the protocol or otherwise acted
in an unprofessional manner. He does allege, however, that his consent to the search
was not valid given the custodial nature of the environment, a threat of discipline if
he failed to consent, and his apparent lack of choice in the matter.
There is no suggestion that officials suspected Serna, in particular, possessed
the phone presumed to have accompanied the case. In fact, Serna had been confined
at Moose Lake for three years prior to the search and had not possessed any drugs,
weapons, or other contraband during that time. Other patients in the Program had
been found in recent possession of cell phones, however, and had used cell phones in
ways counter to security and treatment goals. Given such instances, administrators
deemed cell phones to pose a treatment and security threat to patients and a security
threat to staff, past victims, and prospective victims.
Administrators did not focus their search efforts on the patients identified in the
surveillance tape or on patients with a recent history of possessing cell phones or other
contraband. In fact, in their briefing to our court, the defendants present arguments
broader than the facts of Serna’s case, claiming that they may use facility-wide, visual
body-cavity searches anytime they harbor a generalized suspicion of contraband.4
4
We note that the Program maintains a separate facility that has adopted a
policy imposing stricter limits on the use of visual body-cavity searches. The
defendants in the present case distinguish that facility from the Moose Lake facility
as involving different treatment and security concerns.
-4-
Ultimately, the facility-wide, visual body-cavity searches failed to reveal a cell
phone. Based on a tip from a patient, however, staff discovered a phone in the room
of a patient in a protective-isolation unit two days after commencing the body-cavity
searches. Because the patient was in protective isolation, he did not have access to the
common area where the case was found, and the defendants argue that this fact
demonstrates that the phone was an object capable of being passed among detainees
and secreted on or within patients’ bodies.
II. Discussion
A. Involuntarily Civilly Committed Persons Retain Liberty Interests
Analogous to Pretrial Detainees
Neither we nor the Supreme Court have determined the appropriate standard for
considering whether a particular search violates the Fourth Amendment rights of a
person who is involuntarily civilly committed. We have, however, identified the
constitutional standard applicable to an alleged violation of the Fourth Amendment
rights of an involuntarily committed person based upon a seizure. See Andrews v.
Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). The plaintiff in Andrews, who was
lawfully involuntarily committed, brought a 42 U.S.C. § 1983 suit alleging that a
seizure using excessive force violated his Fourth Amendment rights. Id. at 1055,
1061. In a matter of first impression, we determined that such a Fourth Amendment
seizure claim “should be evaluated under the . . . standard usually applied to
excessive-force claims brought by pretrial detainees.” Id. at 1061.
In making this determination, we considered whether involuntarily committed
persons are more like arrestees, pretrial detainees, or convicted prisoners. Id. We
concluded that the best analogy is to pretrial detainees because “confinement in a state
institution raise[s] concerns similar to those raised by the housing of pretrial detainees,
such as the legitimate institutional interest in the safety and security of guards and
-5-
other individuals in the facility, order within the facility, and the efficiency of the
facility’s operations.” Id. Other circuits have relied upon Andrews in considering
constitutional claims raised by involuntarily committed individuals. See, e.g., Hydrick
v. Hunter, 500 F.3d 978, 997–98 (9th Cir. 2007); Davis v. Rennie, 264 F.3d 86, 102,
108 (1st Cir. 2001). But see Aiken v. Nixon, 236 F. Supp. 2d 211, 236 (N.D.N.Y.
2002) (finding civilly committed persons akin to prison visitors for the purpose of
considering the constitutionality of visual body-cavity searches), aff’d, 80 F. App’x
146, 147 (2d Cir. 2003) (unpublished).
The similarity in the grounds for detaining persons awaiting trial and persons
determined to be sexually dangerous supports application of the analogy to pretrial
detainees in the present case. One reason pretrial detainees are kept in custody prior
to trial is “because there is cause to believe that they are dangerous.” Johnson-El v.
Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). For example, under the Bail Reform
Act of 1984, individuals charged with federal criminal offenses shall be detained prior
to trial if “no condition or combination of conditions will reasonably assure . . . the
safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). Similarly,
commitment under Minnesota law as a sexually dangerous person “requires a finding
of future dangerousness.” Hince v. O’Keefe, 632 N.W.2d 577, 581 (Minn. 2001)
(quotation omitted). An individual committed as a sexually dangerous person in
Minnesota is, by statutory definition, “dangerous to the public.” Minn. Stat. §
253B.02, subdivs. 17, 18(c).
Although decided under the Due Process Clause of the Fourteenth Amendment,
another Supreme Court case, Youngberg v. Romeo, 457 U.S. 307 (1982), further
supports application of the pretrial-detainee standard in Serna’s case. There, the Court
considered the constitutionality of the conditions of confinement for an involuntarily
committed, mentally disabled man. Youngberg, 457 U.S. at 309. In its analysis, the
Court stated, “Persons who have been involuntarily committed are entitled to more
considerate treatment and conditions of confinement than criminals whose conditions
-6-
of confinement are designed to punish.” Id. at 321–22. After determining that the
involuntarily committed, mentally disabled man retained constitutionally protected
liberty interests, the Court considered whether the infringement upon his liberty
interests violated due process. Id. at 319–23. The Court drew an analogy between
pretrial detainees and civilly committed persons as two groups that could be subjected
to liberty restrictions “reasonably related to legitimate government objectives and not
tantamount to punishment.” Id. at 320–21.
Against this backdrop, we can discern no justification for treating a Fourth
Amendment claim based upon a search differently than a claim based upon a seizure.
Thus, Andrews, which addresses a seizure claim, articulates the appropriate standard
for considering whether an involuntarily committed person has been subjected to an
unconstitutional search. See Andrews, 253 F.3d at 1061. Youngberg illustrates the
strength of the analogy between civilly committed persons and pretrial detainees,
concluding these groups are similar even outside the context of a Fourth Amendment
claim. See Youngberg, 457 U.S. at 321–22.
B. The Test for Reasonableness of a Search of Pretrial Detainees or
Involuntarily Civilly Committed Persons
In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court articulated a
balancing test for determining whether searches conducted on pretrial detainees were
reasonable under the Fourth Amendment. The Court stated:
The test of reasonableness . . . 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.
-7-
Id. at 559. The searches challenged as unreasonable in Bell were visual body-cavity
searches conducted upon detainees’ re-entry to a detention facility following their
contact visits with outside persons. Id. at 558. The Court ultimately rejected the
detainees’ claims and concluded that the searches at issue were not unreasonable. Id.
As justification for the searches, officials had cited security concerns and stated the
searches were necessary to “discover . . . [and] deter the smuggling of weapons, drugs,
and other contraband into the institution.” Id. Officials also had noted that the
searches were in lieu of invasive monitoring of visits between detainees and outside
persons. Id. at 559 n.40. The Court noted the highly invasive nature of the search,
stating, “We do not underestimate the degree to which these searches may invade the
personal privacy of inmates.” Id. at 560. Ultimately, however, the Court determined
that the security concerns outweighed the inmate’s privacy interests because “[a]
detention facility is a unique place fraught with serious security danger. Smuggling
of money, drugs, weapons, and other contraband is all too common an occurrence.”
Id. at 559.
In rejecting the Fourth Amendment challenge to the visual body-cavity searches
and in rejecting several other claims related to different aspects of the detainees’
conditions of confinement, the Court in Bell adopted a general tone of deference to
detention-center officials. See id. at 562 (“The wide range of ‘judgment calls’ that
meet constitutional and statutory requirements are confided to officials outside of the
Judicial Branch of Government.”). Subsequent cases involving pretrial detainees also
employ this same tone and reasoning. See, e.g., Block v. Rutherford, 468 U.S. 576,
588–91 (1984) (noting the limited scope of review under Bell in considering pretrial
detainees’ claims and stating that the determination of a protocol for room searches
was “a matter lodged in the sound discretion of the institutional officials”). In Block,
the Supreme Court emphasized the need for deference to institutional officials in
“difficult and sensitive matters of institutional administration and security,” and
highlighted the “limited scope of the judicial inquiry under [Bell].” Block, 468 U.S.
at 588, 589.
-8-
Although Bell clearly articulated a broad balancing test for assessing the
reasonableness of a visual body-cavity inspection, Serna and the present defendants
phrase their arguments regarding the reasonableness inquiry in terms of the
individualized suspicion or degree of suspicion necessary to justify a search. The
defendants state probable cause is not required (which Serna does not contest) and
appear to argue that no level of individualized suspicion is required. Serna argues that
something akin to individualized reasonable suspicion must exist to justify visual
body-cavity searches. We believe that the Court in Bell made a clear choice to
employ the balancing test rather than build its analysis on a degree-of-suspicion
framework. Accordingly, the parties’ focus is misplaced, and, for the reasons set forth
below, we reject the parties’ invitation to champion this one aspect of the inquiry over
the other factors present in the balancing test.
We note that the parties’ suspicion-based approach is not surprising given the
usual standards and analyses applicable in the context of Fourth Amendment claims
outside the context of criminal or civil detention. The Court in Bell addressed the
issue of individualized suspicion only in passing, however, and did not clearly
articulate what level of individualized suspicion it found to exist based on the facts of
the case. The Court stated, “[W]e deal here with the question whether visual body-
cavity inspections . . . can ever be conducted on less than probable cause.” Id. at 560.
Clearly, then, the Court viewed the officials in Bell as lacking probable cause to
justify their searches. A dissenting Justice in Bell went so far as to characterize the
majority as not requiring reasonable suspicion; although, the majority did not
characterize its own holding as such. See id. at 563 (Powell, J., dissenting in part) (“In
view of the serious intrusion on one’s privacy occasioned by such a search, I think at
least some level of cause, such as reasonable suspicion, should be required to justify
the anal and genital searches described in this case.”). The Eleventh Circuit
subsequently stated that because the majority elected not to amend its opinion to
address Justice Powell’s concern, the majority likely did not demand even reasonable
suspicion. See Powell v. Barrett, 541 F.3d 1298, 1307–08 (11th Cir. 2008) (en banc).
-9-
Whether this is true, the Eleventh Circuit’s commentary, at a minimum, highlights the
fact that the Court in Bell did not clearly articulate a particular level of individualized
suspicion required to justify visual body-cavity searches.
Regardless of what level of individualized suspicion existed in Bell—something
less than probable cause, reasonable suspicion, or something less than reasonable
suspicion—the facts and holding of Bell illustrate that some unarticulated level of
individualized suspicion was present and that the Court necessarily considered this
fact in its application of the balancing test. The detainees in Bell were subjected to
invasive visual body-cavity searches upon re-entry after contact visits with outsiders.
Accordingly, those detainees subject to search were persons who had heightened
access to contraband materials. The facts of Bell, then, preclude us from adopting the
defendants’ argument that Bell involved a blanket policy applied without attempts to
distinguish between different members of a detainee population. Given the facts of
Bell, and the Court’s articulation of the balancing-test factors, suspicion is relevant to
the analysis, and we should treat it as part of the “scope,” “manner,” or “justification”
factors of the balancing test. See Bell, 441 U.S. at 559.
We reach this conclusion because certain justifications for searches and certain
circumstances in which searches are conducted demand less individualized suspicion
than others. For example, had the triggering evidence in this case suggested the
presence of a more acute danger such as lethal drugs or a weapon (rather than a cell
phone, which as discussed below, presents an indirect form of danger within a facility
housing sexually dangerous persons), the administrators’ apparent rush to conduct
highly invasive searches of the entire population, on balance, more clearly would have
been reasonable. If the triggering evidence had been a prohibited but relatively benign
object, however, it would have seemed, on balance, less reasonable to move quickly
towards a method of searching that is so highly and personally invasive. Similarly,
if the common area had been common only to a small subset of the detainees at Moose
Lake, it would have been much less reasonable to conduct facility-wide, visual body-
-10-
cavity searches. As these hypotheticals indicate, we view the question of
individualized suspicion as an inherent component of the Court’s balancing test, and
we decline the parties’ invitation to rest our analysis too heavily on this factor.
C. Application of the Test to Determine whether there was a Violation of
a Clearly Established Constitutional Right.
The defendants assert qualified immunity as a defense to suit based on Serna’s
claims against them in their individual capacities. Qualified immunity generally
shields “[g]overnment officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). We employ a two-part inquiry to determine
whether a lawsuit against a public official alleging a constitutional violation can
proceed in the face of an assertion of qualified immunity. See Saucier v. Katz, 533
U.S. 194, 200–01 (2001).
In Saucier, the Court set forth the two-part test with a mandatory sequence for
analysis. First, courts were to consider whether, “[t]aken in the light most favorable
to the party asserting the injury, . . . the facts alleged show the officer’s conduct
violated a constitutional right[.]” Id. at 201. The “existence or nonexistence of a
constitutional right” was, therefore, a threshold question. Id. Second, courts were “to
ask whether the right was clearly established.” Id. This second question is a fact-
intensive inquiry that “must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Id. “For a right to be deemed clearly established,
the ‘contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Buckley v. Rogerson, 133 F.3d
1125, 1128 (8th Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). In other words, “[o]fficials are not liable for bad guesses in gray areas; they
-11-
are liable for transgressing bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th Cir.
2004) (quotation omitted).
The Court’s primary rationale in Saucier for making the sequential analysis
mandatory was to ensure the development of clear standards as to the underlying
questions of constitutional law. Saucier, 533 U.S. at 201. After Saucier, several
Justices criticized, or at least expressed doubt as to the wisdom of, the mandatory,
sequential nature of the two-part test. See, e.g., Morse v. Frederick, 127 S. Ct. 2618,
2641–42 (2007) (Breyer, J., concurring in the judgment and dissenting in part) (noting
the tension between the rule of Saucier and the general principal that courts should
avoid constitutional issues when possible, and also noting difficulties associated with
forcing courts to address constitutional claims even when those claims may not be
well presented). Recently, the Court embraced these concerns, reversed itself, and
eliminated the mandatory aspect of Saucier’s sequential analysis. See Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009). According to Pearson, although it is “often
appropriate” to address the substantive claims in qualified-immunity cases, lower
courts are now “permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id.
Qualified immunity only applies to claims against public officials in their
individual capacities. See Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (noting
that personal-immunity defenses are unavailable in official-capacity actions). Also,
in accordance with Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment
bars damages claims against the states, but generally does not bar claims for
prospective injunctive relief against public officials in their official capacities.
Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007); see Nix v. Norman,
879 F.2d 429, 432 (8th Cir. 1989) (“[T]he Eleventh Amendment bars suits by private
parties ‘seeking to impose a liability which must be paid from public funds in the state
treasury . . . .” (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974))). Because
-12-
neither form of immunity applies to official-capacity claims for injunctive relief, the
discretion that the Supreme Court returned to lower courts through Pearson will not,
as a practical matter, be available in every case. Rather, where an action includes
individual and official-capacity claims, and where a demand for injunctive relief
against state officials is outstanding, as in the present case, it will remain necessary
to address the underlying constitutional issues or decide the case on other grounds
entirely.
Turning to the application of the Bell test to the facts of Serna’s case, we
consider the justification for the search, as compared to the scope, manner, and
location of the intrusion. Bell, 441 U.S. at 559. This amounts to a balancing of the
need for the visual body-cavity search against the intrusion upon Serna’s personal
rights. See Goff v. Nix, 803 F.2d 358, 364–66 (8th Cir. 1986) (applying Bell in the
context of a prison).
Regarding the defendants’ general justification for the search, security at
detention facilities, prisons, and mental institutions alike, is undoubtedly important.
See Block, 468 U.S. at 586 (“[T]here is no dispute that internal security of detention
facilities is a legitimate government interest . . . .”). Specifically, security at
institutions dedicated to the containment and treatment of mental patients is crucial
to safety as well as treatment:
The governmental interests in running a state mental hospital are similar
in material aspects to that of running a prison. Administrators have a
vital interest in ensuring the safety of their staff, other patients, and of
course in ensuring the patients’ own safety.
Morgan v. Rabun, 128 F.3d 694, 697 (8th Cir. 1997). Thus, “the government may
take steps to maintain security at its institutions” where sexually violent persons are
confined. Seibert v. Alt, 31 F. App’x 309, 312 (7th Cir. 2002) (unpublished).
-13-
In the instant case, the defendants rightly proffer institutional security as a
justification for the visual body-cavity search of Serna. While illegal drugs or
weapons are the contraband typically sought during personally invasive searches
within detention facilities, the administrators at Moose Lake explained that cell
phones present a “grave security threat” in the context of sexually violent persons.
The threat includes the potential to conduct criminal activity, including contacting past
victims, grooming future victims, or securing child pornography. See, e.g., United
States v. Mentzos, 462 F.3d 830, 836–37 (8th Cir. 2006) (describing a patient who
used a phone to secure child pornography while confined in Moose Lake). Many cell
phones also have photographic capabilities, which could be used to undermine
institutional security by transmitting images of personnel or buildings to persons
outside the facility. These context-specific concerns demonstrate that possession of
a cell phone may “significantly increase the possibility that there will be breaches of
security and that the safety of others will be placed in jeopardy.” Block, 468 U.S. at
588. Cell phones and their potential to grant access to past or future victims for illegal
purposes or to procure sexually explicit material also have the potential to negatively
interfere with the Program’s treatment goals. In fact, the reaction of a Moose Lake
detainee who actually had a phone illustrates this point. See e.g., Senty-Haugen, 462
F.3d at 883–84 (noting the violent reaction from a patient at Moose Lake when the
cell phone he surreptitiously had been using was seized).
Further, the administrators at Moose Lake had specific evidence and heightened
concerns regarding cell phones—the cell-phone case, the surveillance video, and a
specific history regarding contraband phones and patients’ use of phones to commit
crimes. See Mentzos, 462 F.3d at 836–37 (discussing criminal activity conducted via
phone from within Moose Lake by a patient in 2001); see also Franklin v. Lockhart,
883 F.2d 654, 656 (8th Cir. 1989) (considering, in the context of a prison, the “history
of contraband in the building” in finding justification for visual body-cavity searches
sufficient). These facts indicate that the general justification for a search was based
upon concrete information and not merely upon “perceived security concerns.” See
-14-
Goff, 803 F.2d at 363; cf. Jones v. Edwards, 770 F.2d 739, 741 (8th Cir. 1985)
(finding justification for the strip search of a petty misdemeanor arrestee insufficient
where, among other things, officers had no reason to suspect possession of
contraband). Ultimately, “[t]he public’s interest in safe and orderly [institutions] is
significant.” Goff, 803 F.2d at 365. As such, the general security concerns listed by
the facility administrators in this case are “legitimate and weighty.” Id.
The factors to consider in looking at the intrusion Serna suffered include the
manner, location, and scope of the search. Bell, 441 U.S. at 559. A visual body-
cavity search unquestionably is “intrusive and unpleasant.” Goff, 803 F.2d at 365;
see also id. at 372–74 (Bright, J., dissenting) (discussing the nature of the intrusion
and its impact upon the persons being searched). The intrusion of such a search is
significant. See Franklin, 883 F.2d at 656. Like the search we upheld in Goff,
however, the search in this case was “not any more intrusive or demeaning than” the
search the Court approved in Bell. Goff, 803 F2d at 365. Staff members conducted
the searches in private bathrooms, not in public or semi-public areas. See id. at 366
(upholding search conducted “in as private a location as security concerns will
allow”). There were no extraneous personnel or patients present; only those involved
in the search could observe Serna’s unclothed body. Cf. Jones, 770 F.2d at 742
(noting that a strip search of an arrestee conducted in the alcove of a hallway was only
fortuitously private in finding search unreasonable). Staff executed the searches in a
professional manner in same-sex teams of two. Goff, 803 F.2d at 366 (considering
the fact that the visual body-cavity search of a prisoner was conducted by an officer
of the same sex in upholding the search as reasonable). Further, the search was
“strictly a visual search.” Id. Staff members did not touch Serna during the search;
rather, they asked him to make available for visual inspection portions of his anatomy
capable of concealing contraband. There is nothing in the record to indicate that the
search was conducted in an abusive manner. See Bell, 441 U.S. at 560 (noting that
a visual body-cavity search on a pretrial detainee may not be conducted in an abusive
fashion).
-15-
The scope of the overall response to the discovery of a cell-phone case, namely,
the apparent rush to conduct facility-wide, visual body-cavity searches suggests a
disproportionate reaction. Without belaboring the point, we note that a body cavity
is not necessarily the first place reasonable persons normally would look for a cell
phone. Serna does not argue, however, that a cell phone cannot be secreted in this
fashion or that cell phones are substantially different than other objects smuggled by
this means.
Also, the failure to apply any one of several apparent and less invasive search
methods militates against a finding of reasonableness. The justifications the
defendants offer are general in nature, not specific to Serna, and the administrators
possessed information that would have allowed them to partition the population into
groups viewed as more or less likely to be in possession of the cell phone (e.g.,
persons on the surveillance tapes or persons with a history of possessing contraband).
In other words, although administrators had information in their possession that
clearly directed individualized suspicion at certain patients rather than others, the
administrators chose not to rely upon this information.
Further, there is no suggestion that staff conducted pat-down searches of any
inmates prior to subjecting all inmates to visual body-cavity searches. Similarly, there
is no suggestion that staff conducted room searches prior to conducting the visual
body-cavity searches. By all accounts, it appears that they jumped straight to facility-
wide, visual body-cavity searches after a review of the surveillance video failed to
show which patient had dropped the cell-phone case.
That is not to say that officials are required in all cases to apply the least-
intrusive methods or proceed through a series of progressively more invasive
techniques en route to conducting highly invasive searches. The Court in Bell refused
to adopt a less-invasive-means test. See id. at 559 n.40 (“[T]he logic of such elaborate
-16-
less-restrictive-alternative arguments could raise insuperable barriers to the exercise
of virtually all search-and-seizure powers.” (quotation omitted)). And strict
application of such a methodology would effectively deprive institutional
administrators of the deference noted in Bell.
Nevertheless, the Court in Bell proceeded to “assum[e] that the existence of less
intrusive alternatives is relevant to the determination of the reasonableness of the
particular search method at issue,” and addressed several less restrictive alternatives.
Id. Further, our court, post-Bell, has identified the availability of less invasive search
techniques as being material to the reasonableness of particular strip searches or body-
cavity searches. See, e.g., Jones, 770 F.2d at 742 (holding the strip search of a leash-
law violator was unreasonable and noting “that neither the officers nor the jailers
attempted a less intrusive pat-down search, which would have detected the proscribed
items they sought without infringing [the arrestee’s] constitutional protections”);
Franklin, 883 F.2d at 656–57 (holding that semi-public, visual body-cavity searches
of segregated prisoners upon movement between housing units or following contact
with outsiders were not unreasonable, and stating that “the record does not support a
finding that a less public means of searching exists that would not compromise those
security concerns”). Thus, our cases dictate that, while it is not necessary for officials
to employ the least-invasive search techniques available, it is proper for courts to
consider the availability of simple, safe, and less invasive techniques that officers
elected not to pursue when assessing the reasonableness of performing body cavity
searches en mass on a treatment center population.
In balancing these factors, we expressly reject the defendants’ attempt to
establish a wide-reaching rule that any suspicion of contraband is sufficient to justify
facility-wide, visual body-cavity searches. The defendants’ argument would
champion the broad words and the deferential spirit of Bell over its facts and relatively
narrow holding—the approval of invasive searches of a limited category of persons
-17-
based on something less than probable cause. We previously have recognized the
limitations of Bell, and we have held that not all search techniques may be swept
under the rug of deference to detention-center decisionmakers:
Although we recognize that the security of detention facilities is an
important concern of correction officials who are, in part, responsible for
the safety of their charges, we also recognize that security cannot justify
the blanket deprivation of rights of the kind incurred here.
Jones, 770 F.2d at 742.
Ultimately, however, while we hold that the specific facts of Serna’s case
present a close question of constitutional law, the searches were not unreasonable.
The defendants’ security and treatment concerns are genuine and serious; the searches,
while invasive, were conducted privately, safely, and professionally; and the facility
was reacting to a recurring problem. We view Serna’s case as an outer limit under the
Bell test and, as such, caution facility administrators to recognize that courts’
deference under Bell is not without limits.
We affirm the judgment of the district court.
______________________________
-18-