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August 29, 1983


The opinion of the court was delivered by: Moran, District Judge.


This case arises from a Chicago police officer's spotting some marijuana grown in a planter or planters on the back porch of a Hyde Park apartment. Before the court is plaintiffs' motion for partial summary judgment as to liability on the claims raised in count I of their first amended complaint. In brief, this count alleges that the strip search of each of the plaintiffs in their home during the execution of a search warrant violated their Fourth Amendment right to be free from unreasonable searches. For the reasons noted below, plaintiffs' motion for summary judgment is granted as to Jane Does # 2 and # 3 and denied as to Jane Doe # 1 [Mrs. Doe].

I. Factual Background

On September 14, 1978, Police Officer Frank Gatz secured a warrant authorizing the search of a "Male White Approx. 40 yrs. old, 6 1/2" Med. Build and East 48th Street Apartment/Unit 1B Chicago, Illinois." The warrant permitted the seizure of "marijuana and all other narcotics and narcotic paraphernalia which have been used in the commission of or which constitutes evidence of the offense of manufacture/possession of marijuana." At approximately 10:30 p.m. on September 14, Officer Gatz, accompanied by at least six other officers, arrived at plaintiff's home to execute the warrant. At home at the time of the search were Mr. and Mrs. Doe, their two teen-age daughters, and a young male friend of the family, all in their night clothes.

The officers seized the plants on the back porch. The Does, upon request, turned over to the officers some additional marijuana, including another plant or plants, some marijuana which had been picked but was still green, and some which had been dried and crushed. During the search the officers found a dot, which one of them says Mrs. Doe told him was LSD, although it apparently could not later be identified because the quantity was too minute. The officers also found a very small quantity of white powder in a small envelope which one officer thought might be cocaine. Although the record is not entirely clear on this point, it was apparently an amphetamine, and the record does not disclose whether it was or was not a prescription drug. Those two items were on Mrs. Doe's dresser. Finally, a loaded handgun was also in the apartment, a handgun which the officers were advised had been lent to the Does by another police officer and which, the record indicates without being explicit, was later established to be properly registered. Mrs. Doe acknowledged ownership of the marijuana and the other substances the officers thought might be illegal.

Subsequently, the officers sent for a matron, Officer Phyllis Townsend, to conduct a search of the three females. Each plaintiff was taken to the bathroom, where she was told to lift her nightgown and to lower her underpants. With these garments displaced each was required to turn to allow a visual inspection of her person and was told to squat several times. The matron did not touch the women during the search. No contraband nor any weapons were found on the plaintiffs as a result of the search. Mr. Doe was patted down by a male officer.

After the strip searches took place Mr. and Mrs. Doe were formally arrested and taken to the station. They later pled guilty to possession of marijuana, for which they received a four-months'"par. 710 probation," Ill.Rev.Stats. ch. 56 1/2, ¶ 710 (1978), essentially a supervision without conviction, followed by expungement. All other charges against the couple were dismissed.

II. Legal Principles

The Fourth Amendment protects the security and privacy of persons by barring unreasonable searches and seizures. It accomplishes this by requiring (1) a showing of probable cause and (2) a search warrant, particularly describing the things to be seized, issued by a detached and neutral magistrate. See Doyle v. Wilson, 529 F. Supp. 1343, 1353-54 (D.Del. 1982), citing Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

The requirement that probable cause be determined by "a neutral and detached magistrate" is central to the Fourth Amendment's protections. As Justice Jackson recognized in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436 (1948):

    The point of the Fourth Amendment, which often
  is not grasped by zealous officers, is not that
  it denies law enforcement the support of the
  usual inferences which reasonable men draw from
  evidence. Its protection consists in requiring
  that those inferences be drawn by a neutral and
  detached magistrate instead of being judged by
  the officer engaged in the often competitive
  enterprise of ferreting out crime. Any assumption
  that evidence sufficient to support a
  magistrate's disinterested determination to issue
  a search warrant will justify the officers in
  making a search without a warrant would reduce
  the amendment to a nullity and leave the people's
  homes secure only in the discretion of police
  officers. . . . When the right of privacy must
  reasonably yield to the right of search is, as a
  rule, to be decided by a judicial officer, not by
  a policeman or government enforcement agent.

Accord, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See United States v. Heldt, 668 F.2d 1238, 1256 (D.C. Cir. 1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).

Accordingly, even if supported by probable cause, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347 at 357, 88 S.Ct. 507 at 514, 19 L.Ed.2d 576 (1967). The burden of proving the application of these narrowly defined exceptions is on those seeking the exemption to the warrant requirement. Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979).

It is undisputed that the police possessed a warrant based on probable cause to search the premises where the plaintiffs lived, and to search Mr. Doe. But the prohibition against "open-ended" or "general" warrants means that a "warrant to search a place cannot normally be construed to authorize a search of each individual in that place." Ybarra v. Illinois, 444 U.S. 85, 92, n. 4, 100 S.Ct. 338, 342, n. 4, 62 L.Ed.2d 238 (1979). Thus, the question becomes whether the government has met its burden of showing that one of the "jealously and carefully drawn" exceptions to the warrant requirement has been met, and whether exigent circumstances made the procurement of a warrant impracticable in this situation. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

III. Joan Does 2 and 3

With respect to Joan Doe # 2 and #3 — the young daughters of Mr. and Mrs. Doe — the ...

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