decided: June 8, 1984; As Amended July 24, 1984.
Appeal from a final judgment of the United States District Court for the Southern District of New York, Carter, Judge, dismissing plaintiff's complaint seeking relief for alleged violations of rights guaranteed by the fourth and fourteenth amendments of the United States Constitution and 42 U.S.C. § 1983 (Supp. V 1981).
Van Graafeiland, Pierce and Wisdom,*fn* Circuit Judges. Judge Van Graafeiland concurs in part and dissents in part in a separate opinion.
Plaintiffs appeal from a final judgment of the United States District Court for the Southern District of New York, Robert Carter, Judge, entered January 31, 1983, dismissing plaintiffs' complaint seeking declaratory, injunctive and monetary relief for alleged deprivations of rights, privileges and immunities guaranteed by the fourth and fourteenth amendments of the United States Constitution and 42 U.S.C. § 1983 (Supp. V 1981).*fn1
It is axiomatic that, as long as convicted persons are imprisoned, guards will be required to maintain security in the institutions to which the prisoners are sentenced. It is not unexpected or surprising that some of these guards or correction officers breach security by smuggling contraband into correctional facilities. Once contraband, including drugs, money, weapons, and myriad other items, is introduced into the prison environment, the order and routine that must be maintained to achieve stability and security in these facilities is apt to be undermined and disrupted. The consequence obviously can place the lives and well-being of both staff and inmates in serious jeopardy. So, since guards must guard inmates, it is not rhetorical to ask, "who are to guard the guards?"*fn2
We are confronted herein with two specific types of warrantless disrobe searches of guards for contraband.*fn3 The district court used the term "strip search" in referring to an inspection of the naked body of the person searched and we will continue to use the term in that sense. The district court used the term "strip frisk search" to describe a search including a visual examination of the anal and genital areas of the person searched. We will refer to this latter type of inspection as a "visual body-cavity search" rather than a "strip frisk search" since this latter terminology tends to evoke images of touching, probing or physically intruding into the body. It is important for analytical purposes to note that none of the searches of the correction officers herein involved any touches, probes or other bodily intrusions.*fn4
Contrary to the district court's analysis, which established two categories of searches and hinted at another, there are three aspects of the New York State Department of Correctional Services' ("Department") search procedures that must come under constitutional scrutiny: (1) the strip searches; (2) the visual body-cavity searches; and (3) the random-search policy, which includes both strip searches and visual body-cavity searches of correction officers not suspected of bringing contraband into correctional facilities. We hold: (1) that a reasonable suspicion standard governs strip searches of correction officers and that therefore the warrantless strip searches herein did not per se violate the fourth and fourteenth amendment rights of the officers; (2) that the warrantless visual body-cavity searches of correction officers herein were unreasonable and did violate the fourth and fourteenth amendment rights of the officers; (3) that the warrantless searches based on the Department's random-search policy of correction officers not suspected of bringing contraband into the correctional facilities were unreasonable and violated the fourth and fourteenth amendment rights of those officers; and (4) that qualified immunity from liability for damages is available to those correction officials who ordered certain unreasonable strip searches, the visual body-cavity searches and the searches based on the Department's random-search policy.
All persons employed by the Department as correction officers rceived a booklet in which the following policy statement appeared: "All persons on institution property and any employee while on duty shall be subject to search. Such search shall be supervised by a custodial employee above the rank of correction officer. . . . Refusal of an employee to submit to a search shall constitute grounds for preferring charges." New York State Department of Correctional Services Rule Book, Revised 1969 § 4.20 (known as "Rule 4.20"). Each of the employees searched herein received at the commencement of employment a rule book containing this rule or its quite-similar successor, Rule 201.21.
On June 6, 197, John Roe,*fn5 a correction officer assigned to the Coxsackie Correctional Facility ("Coxsackie"), an institution within the prison system operated by the Department, was scheduled to begin work at 3:00 p.m. At approximately noontime of that day, Correction Captain Anthony Umina, the acting superintendent, received information concerning Officer Roe from a staff person and Correction Officer Vincent.
Vincent and the staff person reported that a Coxsackie inmate had a sexual encounter with Roe on June 5, 1977, and that Roe had agreed to bring the inmate marijuana or wine the following day. Captain Umina, who had known the staff person and Vincent for approximately six months, questioned the staff person about the source of his information. The staff person stated that he had received the information from the inmate, who purportedly had engaged in the sexual encounter with Roe. Based on this information, Umina decided that when Roe reported to work that day he would be searched, and accordingly Umina called the Department's Central Office in Albany and so informed it.
When Roe reported to his assignment, a correction sergeant directed him to report to Umina at the deputy superintendent's office. Roe reported to that office along with two other correction officers who were summoned randomly. When the three officers arrived at the deputy superintendent's office, Sergeant Coons informed them that they would be searched. While Roe was waiting to enter the deputy superintendent's office for the search, Sergeant Coons observed Roe place what appeared to Coons to be a marijuana cigarette on the windowsill of the outer office. It was later determined that the cigarette contained marijuana. At that point, Umina took Roe into the inner office and informed him that he would be searched pursuant to Rule 4.20. Captain Umina ordered Roe to disrobe completely to determine if there was contraband in his clothing or taped to his body. Roe was subjected to a strip search, but was not required to submit to a visual body-cavity search. No additional contraband was found.
On July 2, 1977, Correction Officer Bill Doe,*fn6 who was assigned to work at the Department's Wallkill Correctional Facility ("Wallkill"), was searched. Previously, on June 22, 1977, Correction Lieutenant Louis Lorenz received information from an inmate informant that Doe was trafficking in drugs and that Doe, and possibly others, were planning to aid five inmates in an escape planned for August 1977. Lorenz relayed the information to Superintendent William Quick, to the Department's Inspector General's Office and to the New York State Police Bureau of Criminal Investigation. On or about June 24, 1977, the informant delivered marijuana to Lorenz in response to his request to see samples of the drugs allegedly brought into Wallkill by Doe. Also pursuant to a request by Lorenz, on or about June 27, 1977, the informant delivered hashish to him.
On or about June 28, 1977, Lieutenant Lorenz and the inmate met with representatives of the Department's Inspector General's Office and the State Police Bureau of Investigation at the state police barracks at Newburgh, New York. During the meeting, the informant repeated his allegations concerning the escape plan and Doe's drug trafficking. The Department made arrangements to permit the informant to leave Wallkill on a furlough to meet with Doe for the purpose of electronically recording an escape-related conversation between the informant and Doe.
Between June 22 and June 30, 1977, the informant provided Lieutenant Lorenz with additional information, on an almost daily basis, concerning Doe's drug trafficking. On June 30, 1977, the informant was allowed to go on furlough. On or about the morning of July 2, 1977, the informant met with Doe, who agreed to bring hacksaw blades and marijuana into Wallkill on his next tour of duty, which was scheduled to begin at 3:45 p.m. on July 2, 1977.
At approximately 2:00 a.m. on July 2, 1977, a representative of the Inspector General's Office telephoned Lieutenant Lorenz at home and informed him of the informant's report concerning the meeting between the informant and Doe and of Doe's agreement to bring hacksaw blades and marijuana into the facility on July 2, 1977. At approximately 3:00 a.m. on July 2, 1977, Lorenz telephoned Superintendent Quick and relayed the information about Doe. Quck instructed Lorenz to be at Wallkill at 2:00 p.m. on July 2, 1977.
At approximately 2:00 p.m. on July 2, 1977, Quick instructed Lorenz to wait for Doe in the lobby of Wallkill and to escort him directly to the superintendent's office. When Doe and Lieutenant Lorenz arrived at that office, Quick informed Doe that they were going to search him. After being directed by Quck to empty his pockets, Doe placed the contents of his pockets on a table. As Doe did so, a Sergeant Meinsen checked these items.
At this point, Superintendent Quick directed Doe to remove his clothes. Doe complied and handed them to Meinsen and Lorenz for inspection. Doe, when completely disrobed, was subjected to a strip search and a visual body-cavity search.
When Lorenz looked at the items that Doe had placed on the table, he noticed a sealed envelope which he picked up and found to be lumpy. Doe, observing Lorenz handling the envelope, stated that it was his envelope, that it contained a letter and that he wanted it back immediately. Superintendent Quick ordered Lieutenant Lorenz to open the envelope. As Lorenz was about to open it, Doe lunged across the table, grabbed the envelope, put it into his mouth and tried to chew it. Doe was restrained, the envelope retrieved and opened, and subsequently its contents were tested and determined to be marijuana.
On August 28, 1977, Jane Boe*fn7 and Sue Coe*fn8 were correction officers working at the Department's Mid-Orange Correctional Facility ("Mid-Orange"). At approximately 1:10 a.m. on August 28, 1977, Correction Lieutenant Countryman observed Boe and Coe standing and conversing at the perimeter fence of the facility. Twenty minutes later, Countryman approached the two officers and smelled what he believed to be marijuana smoke. Countryman relieved the officers from duty and directed them to report to the administration building; the two officers then left Countryman's presence.
Countryman called his superior, Correction Captain James, at home and informed him of his observations concerning Boe and Coe. When Countryman and James arrived at the administration building, they found Boe and Coe present. On Captain James' orders, Countryman called Mid-Orange Superintendent Gardineer at home and informed him of his observations concerning the officers, whereupon Gardineer came to the facility.
Shortly after Gardineer arrived, James and he consulted the Department's rules and regulations. Then, Gardineer informed Boe and Coe that they would be searched. Superintendent Gardineer, Captain James and Lieutenant Countryman escorted the officers to the female infirmary and the officers were subjected to strip searches by a female officer and a female nurse. No contraband was found.
On December 23, 1977, Correction Officer Steve Woe*fn9 was assigned to work at the Department's Fishkill Correctional Facility ("Fishkill"). On three or four occasions over a period of several weeks prior to this date, an inmate informant told Inspector General George Seyfert of the Department that Woe was bringing drugs into Fishkill and selling them to inmates. During their first meeting, the informant told Inspector General Seyfert that Woe came to work with a leather shoulder bag that he left in his car until he had punched his time card and had checked to make sure that no shift searches were being conducted. Then, Woe would go back to his car and return with the leather shoulder bag, which purportedly contained drugs that he would sell to inmates.
Sometime prior to December 23, 1977, Seyfert passed this information on to Correction Lieutenant Ronald Miles. On December 22, 1977, Seyfert gave money to the informant and instructed him to purchase marijuana from Woe on December 23, 1977. Seyfert notified Lieutenant Miles of his instructions to the inmate informant. Miles, in turn, relayed this information to a superior officer and stated that he would be at Fishkill the next morning.
At approximately 6:00 a.m. on December 23, 1977, when Woe arrived at Fishkill, Miles ordered him to enter a room, informed him that it was his turn to be searched and directed him to empty his pockets. Woe complied. Miles pat frisked Woe, directed him to disrobe completely and then subjected him to a strip search and a visual body-cavity search. No contraband was found.
On June 26, 1979, David Rogers, Richard Bullock, Robert J. Mizerak, Thomas J. Lynch, Richard Budd, Richard J. Schrade, Pedro Berrios, James Foe*fn10 and Larry Goe*fn11 were correction officers assigned to the Department's Eastern Correctional Facility ("Eastern"). Prior to that date, Eastern Superintendent Walter Fogg had received many general rumors that Foe and Goe were bringing contraband into the facility and supplying it to inmates. Fogg received these rumors from two uniformed supervisors and one inmate informant. The informant, who had been an informant for Fogg at another correctional facility, told Fogg that he had heard rumors that Foe and Goe were dealing heavily in drugs. The inmate did not inform Fogg that he had seen Foe or Goe in possession of contraband. Further, the uniformed supervisors did not inform Superintendent Fogg of specific information concerning either Foe or Goe vis-a-vis contraband.
Superintendent Fogg took no steps to determine whether the rumors concerning Foe or Goe were true, but based on the general rumors and the amount of contraband that was entering the facility, he ordered searches of Foe and Goe and he assigned a Lieutenant Demskie to oversee the searches. Fogg also authorized the searches of several other correction officers so that Foe and Goe would not suspect that they were the particular targets of the searches, thereby jeopardizing possible future searches and investigations.
The other officers, selected solely at random for the searches, were Officers Rogers, Bullock, Mizerak, Lynch, Budd, Schrade and Berrios. Each of these officers was taken individually into a room and ordered by two uniformed sergeants to disrobe. Each of the officers disrobed and was subjected to a strip search and a visual body-cavity search. No contraband was found. At the time that he authorized the search, Superintendent Fogg, it is conceded, did not believe that he had a sufficient basis to obtain a search warrant from a court for any of the searches.
On August 16, 1979, Correction Officer Debbie Noe*fn12 was assigned to the Department's Otisville Correctional Facility ("Otisville"). Several months prior to August 16, 1979, an inmate informant told the facility's Lieutenant Thomson that Officer Noe was bringing liquor into Otisville in a shopping bag or pocketbook and leaving it in the law library. The informant also told Thomson that inmates obtained liquor by taking it from the pocketbook or the shopping bag in the library and putting money in its place. Finally, the informant told Lieutenant Thomson that he personally had not observed any of these events.
Within one or two weeks, Lieutenant Thomson discussed the information that he had received from the informant with a subordinate, Sergeant Zelinsky. Zelinsky told Thomson that he had received similar information from an unnamed inmate source.
Thomson and Zelinsky received similar information from inmates over a period of several months prior to August 16, 1979, but prior to this date Lieutenant Thomson did not observe Noe bring any contraband into Otisville, nor did Zelinsky tell Thomson that he had observed Noe bring any contraband into the facility. In mid-July, 1979, Otisville Superintendent Philip Coombe, Jr., learned through one Captain Payton that Thomson and Zelinsky had received these rumors concerning Officer Noe.
On August 16, 1979, between 3:00 p.m. and 4:00 p.m., Sergeant Zelinsky brought Noe and a shopping bag to Lieutenant Thomson's office. Zelinsky showed Thomson a bottle of rum that he had found in the bag when Noe reported to work.
Thomson notified Captain Payton and Superintendent Coombe about the rum; Coombe ordered that Noe be searched.Lieutenant Thomson directed a nurse and two female correction officers to search Noe and she was subjected to a strip search. No further contraband was found.
On December 26, 1979, the Department issued Interim Direction #4936. The subject of the directive was "Search of [Department] Employees." In addition to stating the purpose*fn13 for such searches, the directive set ...