United States District Court, Northern District of Illinois, E.D
August 29, 1983
JOAN DOE # 1, ON HER OWN BEHALF AND AS NEXT FRIEND OF JOAN DOES # 2 AND #3, MINORS, PLAINTIFFS,
CITY OF CHICAGO, A MUNICIPAL CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Moran, District Judge.
MEMORANDUM AND ORDER
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
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
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
III. Joan Does 2 and 3
With respect to Joan Doe # 2 and #3 — the young daughters of
Mr. and Mrs. Doe — the government cannot meet its burden.
Defendants here argue that the officers had probable cause
to believe that the females were concealing contraband or
weapons and that exigent circumstances required the officers
to conduct the search without a warrant. Exigent circumstances
coupled with probable cause, and not probable cause alone, is
a valid exception to the warrant requirement. Payton v. New
York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d
639 (1980). See Coolidge v. New Hampshire,
403 U.S. 443, 460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971).
The deposition testimony of the officers in charge, however,
show that no probable cause for the search actually existed.
The colloquy with Officer Gratz with respect to the ordering
of a strip search reveals no articulable reason to believe
that contraband was hidden in the body cavities of the
Q Which one of the girls had been out of your
supervision during the time you were in the
A I believe the youngest one.
Q What about the oldest one?
A She was in the kitchen [with Mrs. and Mr.
Doe], and she was giving us a little verbal abuse
at that time.
Q Is that why you had her searched?
A No. Just the idea that she was in the
kitchen, she was, you know, possibly a suspect,
you know, as far as the narcotics or any other
narcotics being found.
(Dep. of F. Gatz, at 61-62.)
Sgt. Laskey testified to the reasons for the
search as follows:
Q Okay. And it was based on your conversation
with them that they used marijuana that you
called the matron, is that correct?
A Not in total.
Q What else?
A The fact that when we entered the apartment,
the occupants of the apartment scattered to other
rooms . . . we lost visual sight of everyone for
a period of time.
A . . . the fact that we found controlled
substances and a loaded handgun, automatic
weapon, in the apartment. We found one which
experienced — which led me to believe that there
might be even more in the apartment, other
dangerous weapons -
A — verbal hostility from the members of the
(Dep. of J. Laskey, at 63-64.)
The determination of probable cause and exigent
circumstances "must be based on the circumstances as they
existed at the time of the challenged action and must be
viewed from the perspective then obtaining." United States v.
Dunn, 674 F.2d 1093, 1102 n. 16 (5th Cir. 1982). Probable cause
exists where "the facts and circumstances within [the arresting
officers'] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that
[contraband will be found where they] searched." Carroll v.
U.S., 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543
(1925); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3
L.Ed.2d 327 (1959). See Picha v. Wielgos, 410 F. Supp. 1214,
1221, n. 4 (N.D.Ill. 1976).
Here, the undisputed facts demonstrate that no probable
cause existed to search the persons of Joan Doe # 2 and # 3
for narcotics. See United States v. Travisano, 560 F. Supp. 627,
629 (D.Conn. 1983) (to establish probable cause there must be
reason to believe that evidence of a crime is located at the
place to be searched). At the time the searches were conducted
controlled substances had been discovered, but only in the
bedroom of Mrs. Doe, the kitchen and the back yard window. Mrs.
Doe had admitted ownership of all illegal material seized. Both
Mr. Doe and Mrs. Doe were wholly cooperative. The daughters
were in their nightgowns at the time of the unanticipated visit
and were thereafter out of the sight of the officers at most
for a few seconds. The fact that the youngsters sought to
justify smoking marijuana and were critical of the officers
does not begin to justify undertaking a strip search for drugs
on them at the time of the search. Rather, the conclusion is
inescapable that the two girls were searched merely because
they were the children of a suspected manufacturer-owner of
marijuana, happened to be in the house at the time of the
search, and were less tractable than their parents. "But, a
person's mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable
cause to search that
person. Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889,
1902, 20 L.Ed.2d 917. Where the standard is probable cause, a
search or seizure of a person must be supported by probable
cause particularized with respect to that person. This
requirement cannot be undercut or avoided by simply pointing to
the fact that coincidentally there exists probable cause to
search or seize another or to search the premises where the
person may happen to be." Ybarra v. Illinois, 444 U.S. at 91,
100 S.Ct. at 342 (emphasis supplied).
Nor was there probable cause to believe that the daughters
were hiding weapons in their bodies. The discovery of a gun in
Mrs. Doe's bedroom does not justify the strip search of her
daughters. The girls were wearing nightgowns and the officers
obviously had no real fear that they were hiding weapons on
their person, since they had been at the house for a
significant period of time without even a pat-down search.
Cf. Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981). The
possibility that weapons might be hidden in the females' body
cavities is not realistic with respect to these youngsters, nor
is it generally compelling. As Judge McMillen concluded with
respect to female detainees:
It is unreasonable, in our opinion, to subject
every female arrestee to a visual search of her
private parts, sometimes followed by a physical
search, in view of the small number of instances
in which weapons have been found and the
illogicality of believing that a search for
weapons there would be fruitful.
Jane Does 1-5 v. City of Chicago, No. 79 C 789 (N.D.Ill.,
January 12, 1982).
In addition, the search of the children could not
be justified as valid searches incident to their
arrest for the simple reason that they were never
placed under arrest. Though in his deposition
Sergeant Laskey stated that the children were not
free to leave (Dep. of J. Laskey, at 64), this
detention did not constitute an arrest. Though the
officers had the right to detain briefly occupants
of an apartment they had a warrant to search,
see Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69
L.Ed.2d 340 (1981), there was no probable cause to believe the
children were in possession of drugs and, therefore, no basis
for a search or an arrest. That the children were not, in
fact, formally arrested buttresses this finding.
Because this court finds there was no probable
cause for the search, there is no reason to discuss
any exigent circumstances that may have existed.
Accordingly, this court concludes that the searches
of Joan Doe # 2 or # 3 were unreasonable and in
violation of their Fourth and Fourteenth Amendment
IV. Mrs. Joan Doe
The situation with respect to Mrs. Doe differs
from that of her daughters. At the time of her
search Mrs. Doe had admitted to possession of
several items of contraband found in the house.
Probable cause, therefore, existed for her arrest.
Immediately after the search she was placed under
formal arrest. In Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct.
2556, 65 L.Ed.2d 633 (1980), the Court held that a search
immediately preceding a formal arrest, where the probable cause
for the arrest existed before the search, was a valid
search incident to that arrest. "Where the formal arrest
followed quickly on the heels of the challenged search of
petitioner's person, we do not believe it particularly
important that the search preceded the arrest rather than vice
versa." Id. at 111, 100 S.Ct. at 2564. Under the
Rawlings reasoning, the search of Mrs. Doe falls in the
category of a search incident to arrest.
A search incident to a lawful arrest is a
well-settled exception to the warrant requirement.
United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467,
471, 38 L.Ed.2d 427 (1973); United States v. Garcia,
605 F.2d 349, 353 (7th Cir. 1979), cert. denied,
446 U.S. 984, 100 S.Ct. 2966, 64 L.Ed.2d 841 (1980). "Such searches have
been held to be reasonable within the meaning of the Fourth
Amendment when effected for the purpose of disarming the
arrestee or to preserve evidence probative
of criminal conduct." United States v. Garcia, 605 F.2d at
This presumption of reasonableness is not
irrebuttable. The valid arrest of a person does not
automatically subject the person to "any search
which the arresting officer feels is necessary."
Tinetti v. Wittke, 479 F. Supp. 486, 490 (E.D.Wis. 1979), aff'd
620 F.2d 160 (7th Cir. 1980). The search must also be
reasonable under the circumstances existing at the time of the
search. Id. In Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct.
1861, 1884, 60 L.Ed.2d 447 (1979), the Supreme Court discussed
the application of this reasonableness standard in
determining the constitutionality of strip searches of
The test of reasonableness under the Fourth
Amendment is not capable of precise definition or
mechanical application. In each case it 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.
Following these principles, the Seventh Circuit affirmed a
finding that a strip search of a non-misdemeanor traffic
violator was not a reasonable search incident to an arrest and
therefore exceeded the bounds of the Fourth Amendment. See
Tinetti v. Wittke, 620 F.2d 160 (7th Cir. 1980), aff'ng
479 F. Supp. 486 (E.D.Wis. 1979). Also following these principles,
Judge McMillen held that the routine strip search of female
arrestees was unreasonable and violative of the Fourth
Amendment. Jane Does 1-5 v. City of Chicago, No. 79 C 789
(N.D.Ill., January 12, 1982).
Mrs. Doe was arrested for possession of drugs. She was
searched incident to that arrest. The question that remains to
be determined is the reasonableness of that search in light of
the circumstances that existed before and at the time of her
arrest. The reasonableness of police conduct under the Fourth
Amendment is a question of fact to be determined by a jury.
Keeler v. Hewitt, 697 F.2d 8, 12 (1st Cir. 1982). See Hampton
v. Hanrahan, 600 F.2d 600, 625 (7th Cir. 1979), modified on
other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670
(1980). The jury must make its decision "from the totality of a
number of specific and, in many instances, disputed facts."
Keeler v. Hewitt, 697 F.2d at 8. In the present case, where the
balancing required turns on a number of factual issues and
where the record before the court is not entirely clear as to a
number of these issues, the court refuses to usurp the jury's
role in determining the reasonableness of the search of Mrs.
Salinas v. Breier, 695 F.2d 1073 (7th Cir. 1982), rehearing
denied, February 11, 1983, is not controlling on the question
of the reasonableness of Mrs. Doe's search. In that case,
Robert Salinas was arrested pursuant to a valid arrest warrant
while driving with his wife and four of his children, the
plaintiffs in the action. Salinas' arrest was for possession
and transportation of heroin. Plaintiffs were taken into
custody and strip-searched. The Seventh Circuit held that,
assuming the confinements of the plaintiffs were legal arrests,
as the district court had assumed, the strip searches of the
plaintiffs were reasonable under the circumstances and
In the circumstances here, the only realistic
explanation for the legality of the arrests and
confinement, if they were legal, is that there
was probable cause to believe that [the wife] and
each of the children was in possession of a
controlled substance. When a person is lawfully
arrested for this reason, of course, post arrest
searches of the body are generally permissible.
Id. at 1083.
There are a number of crucial distinctions
between Salinas and the present case. First, and most
important, in Salinas the court assumed that because the
arrests were legal the police had "probable cause to believe
that a controlled substance [was] hidden on or within the
person's body." Id. at 1085. In the present case,
no such probable cause can be assumed. It is up to
the jury to decide whether the police had
sufficient justification to believe Mrs. Doe was
hiding evidence on her body to warrant the search.
Another difference is that at the time of the
search of the plaintiffs in Salinas the drugs which had
constituted the probable cause basis for their arrest had, not
yet been found. In the present case, however, the drugs that
were the basis for Mrs. Doe's arrest had already been given
to the officers by Mrs. Doe. Further, in Salinas the police
were searching for heroin, a drug frequently carried and stored
in small amounts. In the present case the drug
involved was marijuana, some in the form of growing plants.
Marijuana is most frequently not stored in small amounts and,
especially with regard to the plants, is not susceptible to
being hidden within the body. Indeed, a trier of fact could
well conclude that marijuana plants in full view on a
back porch are hardly indicative of the possibility of
commercial drug trafficking, concealment, or propensity towards
violence, and the record lends considerable support to the view
that the officers had no such concerns or reasons for such
The facts in Salinas are, in short, far different from those
here. Accordingly, plaintiffs' motion for partial summary
judgment as to Jane Does # 2 and # 3 is granted, and as to Jane
Doe # 1 is denied. No decision is being made concerning
plaintiffs' equal protection claim pending further briefing on
the issue by both parties.
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