socks and belt and was told to roll his pants down several
inches from the top. In addition, plaintiff's handcuff case and
lunch were searched.
Plaintiff contends that this search, based solely on an
anonymous tip, violated his fourth amendment right to be free
from unreasonable searches and that he is therefore entitled to
damages under 42 U.S.C. § 1983.*fn2
Defendants make essentially two arguments in support of their
motion for summary judgment. First, they argue that the search
of plaintiff was "reasonable" within the meaning of the fourth
amendment and that plaintiff's constitutional rights were not
violated. Second, they argue that even if the search violated
the fourth amendment, defendants acted within their qualified
immunity and are therefore not liable for damages under § 1983.
A. Reasonableness of the Search
The fourth amendment prohibits only unreasonable searchs and
seizures. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct.
280, 283, 69 L.Ed. 543 (1925). Determining whether a particular
search was reasonable "requires a balancing of the need for the
particular search against the invasion of personal rights that
the search entails." Bell v. Wolfish, 441 U.S. 520, 559, 99
S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). This balancing
requires a consideration of "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
so conducted." Id.
Courts have recognized that prisons are "unique places
`fraught with serious security dangers.'" Security & Law
Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187,
201 (2d Cir. 1984) (quoting Bell, 441 U.S. at 559, 99 S.Ct. at
1884). It is because of these special security dangers and the
attendant need for special security precautions that the
ordinary constitutional requirement of a warrant based on
probable cause is not required to satisfy the fourth amendment
in some cases where searches have been conducted in prisons.
See, e.g., Carey, 737 F.2d at 203. However, courts have also
recognized that individuals do not lose all of their
constitutional rights when they enter a prison, whether they be
prisoners, visitors, or guards. See, Bell, 441 U.S. at 558-59,
99 S.Ct. at 1884-85 (prisoners); Hunter v. Auger, 672 F.2d 668,
674 (8th Cir. 1982) (visitors); Carey, 737 F.2d at 201
The question is whether this particular search was reasonable
in the absence of a warrant. "In making this determination the
reasonableness test `requires, at a minimum, that the facts
upon which an intrusion is based be capable of measurement
against "an object standard," whether this be probable cause or
a less stringent test.'" Carey, 737 F.2d at 204 (quoting
Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59
L.Ed.2d 660 (1979)). The question then becomes what test or
standard should be required.
Defendants argue that the search of plaintiff was a "frisk,"
that a frisk involves a relatively small intrusion on the
plaintiff, and that frisks are a routine part of prison
procedures so that plaintiff's expectation of privacy is
reduced.*fn3 Defendants argue
that there should therefore be a very low standard, or no
standard at all.
Plaintiff, on the other hand, characterizes this search as a
"strip search" and argues that a standard of "reasonable
suspicion" should be applied. At least two courts have held
that "reasonable suspicion" is the proper standard for
determining whether a strip search of prison employees is
constitutional. See, Carey, supra, 737 F.2d at 204; McDonell v.
Hunter, 612 F. Supp. 1122, 1129 (S.D.Iowa 1985); cf. Mary Beth
G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983)
(requiring reasonable suspicion to strip search minor offender
However this search is characterized, it does not appear to
fall within the description of a "frisk."*fn4 The Court of
Appeals for the Seventh Circuit has identified "the standard
frisk search" as "an outside-the-clothes check for concealed
weapons." Madyun v. Franzen, 704 F.2d 954, 956 (7th Cir.),
cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687
(1983). This emphasis on being "outside-the-clothes" is
consistent with the use of the term in Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the famous case that
made "frisk" a standard term of fourth amendment jurisprudence.
The court in Terry emphasized the minimal scope of the search
at issue in that case:
Officer McFadden patted down the outer clothing of
petitioner. . . . He did not place his hands in
their pockets or under the other surface of their
garments until he had felt weapons. . . .
Terry, 392 U.S. at 29-30, 88 S.Ct. at 1884. In the present case
plaintiff claims that he was required to remove most of his
clothing, a requirement totally inconsistent with the term
It is more difficult to decide whether the search of
plaintiff was a "strip search." The cases cited by plaintiff
that were found to be "strip searches" involved either the
removal of all of a person's clothing, leaving them entirely
naked, or the baring of the genital area. See, e.g., Carey,
supra; United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.
1978). Meanwhile cases in which searches were found not to be
strip searches have involved relatively small matters like the
removal of a shoe or the lifting of one's skirt to the knees.
See, e.g., United States v. Brown, 499 F.2d 829, 833-34 (7th
Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d
640 (1974); United States v. Nieves, 609 F.2d 642 (2d Cir.
1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d
Obviously there are searches that do not qualify as
either "frisks" or "strip searches." The Seventh Circuit has
stated "not every request to remove an article of clothing or
to remove something from pockets will transform a search into a
strip search." United States v. Dorsey, 641 F.2d 1213 (7th Cir.
1981). However, it emphasized that the key factor in such a
decision is "the level of embarrassment and intrusion" that the
person searched feels. Id. at 1217. Unlike the individuals
searched in Brown, supra, and Nieves, supra, plaintiff was
asked to remove most of his clothing. While removing one piece
of clothing may not qualify as a strip search, leaving one
piece of clothing on an individual will not save that search
from being classified as a "strip search." Plaintiff's claimed
level of embarrassment at being asked to remove all of his
clothing but his underpants (the difference between rolling his
pants down and taking them off is
negligible) is insufficient to pose an issue of fact for
It then must be determined if the reasonable suspicion
standard was met in this case. In order to justify the search
of a correction officer under this standard, prison
administrators "must point to specific and objective facts and
rational inferences that they are entitled to draw from those
facts in light of their experience." Hunter v. Auger,
672 F.2d 668 (8th Cir. 1982). Inchoate unspecified suspicions do not
suffice. Id. "Factors that may be taken into account in
determining reasonable suspicion are: (1) the nature of tip or
information; (2) the reliability of the informant; (3) the
degree of corroboration; and (4) other facts contributing to
suspicion or lack thereof." Carey, 737 F.2d 187, 205 (2d Cir.
1984) (citing United States v. Afanador, 567 F.2d 1325, 1329 n.
4 (5th Cir. 1978)).
Applying these factors to the present case, it is clear that
the defendants did not have "reasonable suspicion" when they
searched plaintiff. Suspicion was based only on an anonymous
tip. This could have been made by anyone for any purpose.
Defendants knew nothing about the reliability of the informant.
There was nothing to corroborate the tip and nothing else to
contribute to defendants' suspicion.
B. Qualified Immunity
Defendants also argue that even if this search violated the
fourth amendment, they are protected by the qualified immunity
accorded to certain government officials and are therefore not
liable for damages under 42 U.S.C. § 1983.
"Prison officials receive qualified, not absolute, immunity
from liability in a section 1983 damages suit. Procunier v.
Navarette, 434 U.S. 555, 561 [98 S.Ct. 855, 859, 55 L.Ed.2d
24), . . . (1978)." Lock v. Jenkins, 641 F.3d 488, 498 (7th
Cir. 1981). Such officials "generally are shielded 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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d
396 (1982). The issue of whether the law was clearly
established is a question of law for the court. Bass v.
Wallenstein, 769 F.2d 1173, 1186 (7th Cir. 1985); Llaguno v.
Mingey, 763 F.2d 1560, 1569 (7th Cir. 1985). Therefore the
question becomes whether the constitutional right at issue —
the right of a prison employee to be free from an intrusive
search based only on an anonymous tip — was clearly
established in October of 1984 when the search of plaintiff
Very few opinions have addressed the issue of what standard
applies to intrusive searches of prison employees. The Seventh
Circuit has not considered the question. Of the cases cited by
plaintiff, only Security & Law Enforcement Employees, Dist.
Council 82 v. Carey, 737 F.2d 187 (2d Cir. 1984), and Armstrong
v. New York State Commissioner of Corrections, 545 F. Supp. 728
(N.D.N.Y. 1982), address that specific issue.*fn6
In Carey, a divided panel of the Second Circuit held that a
"reasonable suspicion" standard would apply to "strip searches"
of prison employees and applied that standard to a series of
actual searches that had taken place in New York prisons.
However, there are several reasons why Carey does not "clearly
establish" the law.
First, it is not an opinion of this Circuit. See Joseph v.
Brierton, 739 F.2d 1244, 1250 (7th Cir. 1984). ("One of the
cases [establishing the applicable standard] was a case from
this circuit. As the law was, therefore, established, the
defendants were not entitled to immunity." Id. (emphasis
Moreover, the standard in Carey is not the only standard that
has been applied to such searches. While this Court believes it
should be guided by the majority opinion in Carey, the dissent
in Carey would "place no greater limitation on strip searches
[of prison guards] than that they not be conducted arbitrarily,
capriciously, or in bad faith." Carey, 737 F.2d at 213 (Van
Graafeiland, J., dissenting). This lower standard would be met
in the present case. See also Gettleman v. Werner, 377 F. Supp. 445,
451 (W.D.Pa. 1974) (finding the strip search of a prison
employee to be constitutional and recognizing that "a wide
latitude for judgment and discretion must be extended to state
officials"); United States v. Kelley, 393 F. Supp. 755, 756-57
(W.D.Okla. 1975) (finding the strip search of a reformatory
guard to be constitutional and that the guard "could have no
reasonable expectation of privacy while on prison . . .
Also, it must be noted that Carey was decided only three
months before the search of plaintiff took place. Law
enforcement personnel must be held to a reasonable objective
standard of behavior. It must be a standard which speaks to
what a reasonable officer should or should not know about the
law he is enforcing. Saldana v. Garza, 684 F.2d 1159, 1165 (5th
Cir. 1982), cert denied, 460 U.S. 1012, 103 S.Ct. 1253, 75
L.Ed.2d 481 (1983). It is not reasonable to require prison
officials to be familiar with such a recent decision of another
Finally, the court recognizes that while plaintiff's search
has been characterized as more than a "frisk search," doing so
affects the interpretation of its regulations.
Therefore, because it was not "clearly established" that: (1)
reasonable suspicion was required for intrusive searches of
prison guards or (2) that the search of plaintiff was an
intrusive search in violation of its "limited" "frisk search"
regulations, defendants could reasonably have believed that
their search of plaintiff did not violate plaintiff's fourth
amendment rights. Defendants therefore acted within the scope
of their qualified immunity.
IT IS THEREFORE ORDERED that defendants' motion for summary
judgment is granted and judgment is entered in favor of the