Well, Where Else Would You Expect To Find CRACK!? QI Saves Officer From Suit

RICHMOND v. CITY OF BROOKLYN CENTER, USCA-8 Nos. 05-3770, 05-3771, 2007 U.S.App. LEXIS 14710, on appeal from USDC-MND, before USCJs Melloy, Smith, Gruender, opinion by Gruender, dissent by Smith, filed 21 Jun 2007.


LONG STORY SHORT: It was not clear to officer who strip-searched arrestee and removed a small package containing cocaine from arrestee's rectum that his actions violated established constitutional rights, and arrestee could not recover. Binding in AR, IA, MN, MO, ND, NE, SD.

FACTS: Brooklyn Center, Minnesota police got an anonymous tip that drugs were being sold at three particular rooms of a motel. Officers, including Defendant, knocked on Plaintiff's room, and Plaintiff partially opened the door. Plaintiff gave a false name in response to questions about drug sales. Officers learned his real name, and he admitted there was a warrant for his arrest. Officers came in and arrested Plaintiff, finding $1,300 in currency, cell phones, pagers, tear-offs (corners of baggies for tying up small amounts of drugs), and a little marijuana. Officers checked Plaintiff's real name again, discovering an extensive history of drug dealing. All officers present were male.

Defendant told Plaintiff he believed that Plaintiff had more drugs on him, and was going to check Plaintiff's "crotch area." Officer Flesland held Plaintiff while Defendant removed Plaintiff's pants, then lowered Plaintiff's boxer shorts. Defendant observed that Plaintiff was clenching his buttocks, and (accounts of the participants differed) either told Plaintiff to bend over and he complied, or forcibly bent Plaintiff over a table. Defendant saw a piece of tissue sticking out of Plaintiff's buttocks, put on a latex glove, and (again, accounts differed) either quickly swiped the tissue out and let it fall on the floor, or inserted two or three fingers into Plaintiff's rectum and probed around, to the point that Plaintiff felt he was being raped. The tissue contained 3.7g of cocaine.

PROCEDURE: The state criminal court ruled the officers' search illegal, suppressed the cocaine, and dismissed all charges. Plaintiff sued Defendant in U.S. District Court for the District of Minnesota per 42 U.S.C. § 1983 for violating his Fourth Amendment right against unreasonable search and excessive force. Defendant moved for summary judgment on qualified immunity grounds, but the trial court ruled that material facts as to the alleged body cavity search were still in dispute. QUALIFIED IMMUNITY DENIED. A jury found that the police did not use excessive force, and the body cavity search did not occur, and would have been reasonable if it had occurred. However, the jury found that Defendant did not conduct the strip search in a reasonable manner, and awarded Plaintiff $35,000 nominal damages, since the search caused him no actual injury. The trial court denied all defense posttrial motions, except to reduce the damages to $1. Defendant appealed to the U.S. Court of Appeals for the Eighth Circuit.

DECISION: The Fourth Amendment reasonableness of a strip search turns on the scope of a particular intrusion, the way it is done, the justification for starting it, and the place where it is done. Defendant did not dispute on appeal the jury's finding that the search was unreasonable, meaning that the first half of qualified immunity did not help him, so the Eighth Circuit would go to the second half. Whether a right is clearly established is a matter of law for the court, and the trial court erred by putting that question to the jury.

When the incident happened, it was not clear to a reasonable officer in Defendant's position that a strip search of a subject, supported by reasonable suspicion, in the subject's private motel room, using a latex glove, and probably not forcibly bending the subject over, was a violation of the subject's Fourth Amendment rights. Though the police could have transported Plaintiff to the police station and searched him there, police do not have to use the absolute least intrusive means possible, and also Plaintiff might have disposed of the evidence on the way there. Defendant was entitled to qualified immunity and all other questions were moot. VACATED AND REMANDED for entry of judgment in Defendant's favor.

The dissent would have ruled that Plaintiff's right to be free from strip searches of this type to have been clearly established. Field strip searches are very rare and certainly are not justified simply as incident to arrest. Objectively reasonable officers should have known that it was unreasonable and illegal to forcibly restrain Plaintiff and strip off his clothes for inspection of his privates.

EDITORIAL: I've heard of pulling victory out of one's behind, but this is the first time I've seen it happen. If it was me there, and I saw this guy had a tissue probably containing drugs sticking out from where the sun don't shine, I'd be inclined to tell him HE CAN KEEP IT, with my compliments. But if dope could be there, so could a razor blade, or a handcuff key, or a toothbrush shank, and with his hands cuffed in back and a few minutes' ride back to the station, he could do something bad. I don't know if I would have done the same thing these officers did, but I garontee, I would have done SOMEthing.

51 to 49%, I agree with the result. It was just luck of the draw to get two judges on the case who did too. It could easily have gone the other way.