ANGELA CALLOWAY, Plaintiff - Appellant, v. BENJAMIN J. LOKEY, in his individual capacity; JEFFREY L. BROWN, in his individual capacity; EDWARD O. HOSKIE, in his individual capacity; HEIDI M. BROWN, in her individual capacity; HEATHER K. HALE, in her individual capacity; JEREMY J. NELSON, in his individual capacity, Defendants - Appellees, and COMMONWEALTH OF VIRGINIA; JOHN A. WOODSON, Warden, Augusta County Corrections Center; RANDOLPH HOSKIE, in his official and individual capacity; NICHOLAS S. SHIRES, in his individual capacity; JANE DOES 1-2 (TWO UNDIENTIFIED FEMALE CORRECTIONS OFFICERS), in their official and individual capacities, Defendants.
No. 18-2193
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 21, 2020
PUBLISHED. Argued: October 30, 2019. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:16-cv-00081-EKD-JCH)
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge King joined. Judge Wynn wrote a dissenting opinion.
ARGUED: Christopher M. Okay, CHRIS OKAY, ATTORNEY AT LAW, Staunton, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Richard Carson Vorhis, Senior Assistant Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy Solicitor General, Brittany M. Jones, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
In this appeal, we are presented with the question of whether corrections officers had a reasonable suspicion sufficient under the
Prison visitor Angela Calloway commenced this action under On the corrections officers’ motion, the district court entered summary judgment in their favor, concluding that the officers had a reasonable suspicion that Calloway was attempting to pass contraband to Talbert and therefore that the strip search of Calloway was lawful. For the reasons that follow, we affirm. In February 2016, while incarcerated at the Bland Correctional Center, in Bland, Virginia, Travis Talbert and another inmate were caught attempting to smuggle several pounds of tobacco into the prison. The plan was for Talbert’s mother and the other inmate’s sister to leave the tobacco at a predetermined spot on the prison’s property for a third inmate to later retrieve, but the women were discovered and arrested shortly after hiding the tobacco. Talbert was sentenced to 30 days of disciplinary segregation after admitting his involvement in the offense, and he was thereafter transferred to the Augusta Correctional Center, a more secure facility. Shortly after his transfer, Augusta’s Institutional Investigator, Sergeant Benjamin Lokey, learned of Talbert’s disciplinary conviction at Bland and the reason for it. Thereafter, Sgt. Lokey “started to hear the name ‘Travis’ going around with the informants” in the prison, with a few inmates suggesting generally that Lokey should keep an eye on an inmate named “Travis.” Having only the name “Travis,” Lokey was not sure that the tip referred to Talbert, but Talbert’s “history made [Lokey] suspicious.” Then, on Friday, July 15, 2016, Lokey “heard while walking through the prison that Talbert was moving,” a term that Lokey knew to be prison slang for smuggling drugs. Based on this tip and his knowledge of Talbert’s prior smuggling attempt, Lokey became concerned that Talbert would attempt to smuggle drugs into Augusta. Accordingly, as Lokey was leaving work that day, he asked Master Control Officer Jeremy Nelson — who was scheduled to monitor the security cameras posted in the visitation room during that weekend’s visitation session — to pay particular attention to Talbert and any visitor he might receive. As an officer assigned to the “master control” room, Officer Nelson had experience “monitor[ing] streaming video of the offenders and their visitors” to “watch for activity that might be suspicious, such as Around noon on July 17, 2016 — i.e., just two days after Sgt. Lokey had heard that Talbert was “moving” — Angela Calloway arrived at Augusta to visit Talbert. This was her second visit to Augusta to see Talbert, the first having taken place the month before. Calloway, a nursing assistant in her mid-thirties, had received permission to be one of Talbert’s authorized visitors after the Virginia Department of Corrections had conducted a check of her criminal record. As she entered the facility on July 17, Calloway passed through the standard security screening procedures used for all visitors, which included removing her shoes, walking through a metal detector, and being “patted down.” Calloway’s pat down was conducted by Sergeant Heidi Brown. Sgt. Brown later recalled that Calloway “looked a little frazzled and kind of nervous,” but explained that nervous behavior “is normal when anybody comes for the first time because they’re coming into a prison.” Nevertheless, when Sgt. Brown notified Officer Nelson that Talbert had a visitor entering the facility, she specifically mentioned that the visitor “was acting nervous.” Nelson met Calloway in the lobby of the administration building and checked her visitor’s pass before letting her into the visitation room; he too thought that “Calloway appeared to be nervous.” Calloway was assigned to a table at the far end of the busy visitation room where she was soon joined by Talbert. During the course of their hour and a half visit, Officer Nelson closely monitored Talbert and Calloway from his position in the master control room by watching live video footage from two security cameras that he focused on their table. Although the security cameras did not record the live video feed, a “choppy video” comprised of a series of still images taken at approximately five frames per second is part of the record. According to Officer Nelson, Calloway “continued to seem nervous” during her visit with Talbert. More specifically, he noticed her “fidget[ing] with her waistband on several occasions” and “adjust[ing] her clothing several times” in a manner that could be consistent with “moving contraband from underneath her clothing to a position where it could be easier retrieved.” Nelson also thought that “Talbert seemed to be keeping an eye on the correctional officers as they made their rounds” through the visitation room. Then, about an hour into the visit, Nelson observed Calloway adjust her clothing in a manner that “looked [to Nelson] like she [had] reached inside the front of her pants.” Based on that observation from the live video feed, Nelson believed that Calloway had just unbuttoned her pants, and he immediately contacted Sgt. Lokey to report what he had seen. Based on Officer Nelson’s report, Sgt. Lokey contacted Unit Manager Jeffrey Brown, the highest-ranking officer on site at the time. Lokey and Brown discussed the situation and agreed that the visit between Talbert and Calloway should be interrupted and that Talbert should be taken from the visitation room for a strip search. They also agreed to speak to Calloway to request that she consent to such a search. Accordingly, shortly before 2:00 p.m., four corrections officers approached the table at which Talbert and Calloway were sitting. Two of them took Talbert out of After signing the form, Calloway was escorted to a private office by two female officers, Sgt. Heidi Brown and Officer Heather Hale, who were told that Calloway had signed the strip-search consent form. When they reached the private office, Calloway informed the officers that she was menstruating, and so the three women relocated to a women’s restroom. Because the door to that restroom did not lock, Brown told Hale to stand at the door to ensure that no one entered. Brown explained the search procedure to Calloway and then had her remove her clothing one piece at a time, with each item being searched before another was removed. When Calloway had taken off all her clothes, she complied with Brown’s directions to lift her arms and breasts, open her mouth, and lean over and shake her hair. According to Calloway, Brown also put her hands through her hair to check it for hidden contraband. At Brown’s direction, Calloway next went into the bathroom stall and removed her tampon, which Brown inspected before disposing of it. Calloway then twice performed the “squat and cough” maneuver, and, according to Calloway, she also spread her buttocks for the officers’ inspection. When the search revealed no contraband, Calloway’s clothing was returned. She was also offered another tampon but stated that she did not need one. After she dressed, Calloway was taken back to the room where Sgt. Lokey and Unit Manager Brown were waiting. According to Calloway, Lokey stated that he was sorry that they had had to conduct the strip search but that they would allow her to resume her visit with Talbert since she had been so cooperative. Unit Manager Brown then escorted her back to the visitation room where she rejoined Talbert, but she remained “upset by what [had] just happened.” Around this time, Lieutenant N.S. Shires — one of the officers who had searched Talbert and found that he also Calloway commenced this action in December 2016, naming seven corrections officers, in their individual capacity, as defendants — Unit Manager Jeffrey Brown, Lt. Hoskie, Sgt. Lokey, Lt. Shires, Sgt. Heidi Brown, Officer Hale, and Officer Nelson. Calloway later agreed to dismiss her claims against Lt. Shires. In her complaint, Calloway sought damages under On Calloway’s Finally, the court retained supplemental jurisdiction over Calloway’s related state law claims and concluded that the corrections officers were entitled to summary judgment on those claims as well. From the district court’s judgment dated September 10, 2018, Calloway filed this Calloway contends that the district court erred in granting the corrections officers summary judgment on her The parties do not dispute the applicable legal principles for conducting a lawful strip search in the prison context. The Applying these principles in the prison context, the Supreme Court in Bell held that a prison policy requiring all inmates and pretrial detainees to submit to visual body cavity searches following contact visits did not violate the Applying these principles to prison employees, we held in Leverette v. Bell, 247 F.3d 160 (4th Cir. 2001), that even though prison employees enjoy greater privacy interests than do prison inmates or pretrial detainees, the “unique” security concerns in the prison context generally justify officials’ visual body cavity searches of prison employees based on reasonable and individualized suspicion. Id. at 167–68. In so holding, “we emphasiz[ed] that reasonable suspicion is the minimum requirement,” and we instructed that “the more personal and invasive the search activities of the authorities become, the more particularized and individualized the articulated supporting information must be.” Id. at 168. We noted that our conclusion was “bolstered by our sister circuits’ decisions applying the reasonable suspicion standard to searches of prison visitors,” strongly suggesting that the same standard would apply to both prison employees and prison visitors. Id. at 168. Indeed, in an unpublished opinion, we had previously applied the reasonable suspicion standard to evaluate the legality of a prison visitor’s strip search. See United States v. Johnson, 27 F.3d 564, 1994 WL 260806, at *2 (4th Cir. June 15, 1994) (unpublished) (stating that “[a] reasonable suspicion standard applies to strip searches of prison visitors”). Accordingly, we now make clear that, as the parties agree, the standard under the In this case, the record demonstrates beyond genuine dispute that Sgt. Lokey and Unit Manager Brown made the decision to seek Calloway’s consent to a strip search based on a sequence of events that, viewed together, culminated in a reasonable suspicion that Calloway was attempting to pass contraband to Talbert during her July 17 visit. First, Lokey knew To challenge this conclusion, Calloway argues that Sgt. Lokey and Unit Manager Brown acted unreasonably in accepting Officer Nelson’s description of her conduct in the visitation room, rather than replaying the relevant portion of the surveillance video for themselves. But, as the district court correctly reasoned, Lokey and Brown were entitled to rely on Nelson’s report of his observations. As the Supreme Court has made plain, “[t]he difficulties of operating a [prison] must not be underestimated by the courts,” and “[m]aintaining safety and order at these institutions requires the expertise of correctional officials.” Florence, 566 U.S. at 326. By necessity, the officers charged with maintaining safe and secure prisons must assume different roles and responsibilities and be able to rely on each other to perform their differentiated tasks. Here, the record reveals no reason why Sgt. Lokey and Unit Manager Brown should have doubted the accuracy of Officer Nelson’s report, and we thus cannot accept Calloway’s suggestion that it was constitutionally unreasonable for Lokey and Brown to have acted on it. Cf. United States v. Ventresca, 380 U.S. 102, 111 (1965) (recognizing that “[o]bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant”). With respect to Calloway’s claim against Officer Nelson, Calloway argues that he acted unreasonably because he misidentified and made up the facts that he reported to Sgt. Lokey. In addressing this argument, it is important to note that Nelson was not the decisionmaker on whether to conduct the search; indeed, he did not even make a recommendation on the issue. His task was limited to monitoring a live video feed of Calloway and Talbert’s interaction While Calloway argues that Officer Nelson made up the facts of his report, we have reviewed the video of Talbert and Calloway’s visit and agree with the district court that it supports Nelson’s report to Sgt. Lokey. The recorded video is choppier than the live feed that Nelson was monitoring, but it nonetheless shows that, at about an hour into the visit, Calloway brought her hand to the waistband of her pants and adjusted her clothing in such a way that a reasonable officer watching the video feed in real time could readily have believed that Calloway had just unbuttoned her pants. As the district court correctly concluded, “there is nothing in the record that supports any assertion that Nelson made up the conduct that he reported to Lokey” or that he otherwise acted unreasonably in reporting his observations to Lokey. Calloway, 2018 WL 4323951, at *4. In her reply appellate brief, Calloway acknowledges that the video shows her making “several momentary clothing adjustments” but maintains that the “most reasonable interpretation of [these movements] is that Calloway might have been feeling self-conscious, or uncomfortable in her clothing during the nearly 90 minutes she visited Talbert.” This argument, however, is beside the point because Nelson drew no conclusion about why Calloway adjusted her clothing and appeared to unbutton her pants. He only reported what he saw — that Calloway had brought her hand to her waistband and adjusted her clothing in such a way that it looked like she had just unbuttoned her pants. Moreover, the argument overlooks the well settled principle that circumstances “susceptible of innocent explanation,” when taken together, can contribute to the “determination that reasonable suspicion exists.” United States v. Arvizu, 534 U.S. 266, 277 (2002). When Nelson’s information was reported to Sgt. Lokey, it, combined with all of the other information of which Lokey was aware, created a reasonable suspicion that Calloway was hiding contraband. As to Officer Nelson, then, the facts of record continue to show that he acted reasonably in his limited role and therefore that he was entitled to summary judgment. Finally, Calloway’s At bottom, we conclude that Sgt. Lokey and Unit Manager Brown possessed the requisite reasonable suspicion to justify the search because the totality of the circumstances of which they were aware pointed to at least a moderate chance that Calloway was concealing contraband on her person. And nothing in the record shows that Officer Nelson, Sgt. Brown, or Officer Hale acted improperly or unreasonably in their limited support roles. In these circumstances, the corrections officers were entitled to summary judgment on Calloway’s Relying on its ruling that the corrections officers did not violate the * * * Accordingly, we affirm the judgment of the district court. AFFIRMED WYNN, Circuit Judge, dissenting: In this Civil Rights action, the majority opinion breaches the congressional purpose and history of Each year, millions of individuals—mothers, fathers, grandparents, spouses, children, relatives, and friends—visit the nearly 1.5 million prisoners in the United States. Angela Calloway was just one such visitor when she visited an inmate at a But during her visit with the inmate, without any warning, two correctional officers took Ms. Calloway out of the visitation room, through secured doors, and into the prison records office. The officers accused Ms. Calloway of smuggling contraband, and they told her they had justification to “strip search” her. Two additional officers arrived and took Ms. Calloway into a bathroom, where one officer stood in front of the door and the other told Ms. Calloway to take off her clothing one article at a time. After Ms. Calloway completely undressed, the officers ordered her to twice squat and cough forcefully and to spread her buttocks for inspection of her anus. The officers also had Ms. Calloway remove her tampon from her vagina and give it to an officer. As it turned out, Ms. Calloway was completely innocent of the accusation—the officers found no contraband whatsoever. Humiliated, embarrassed, and rightfully believing that the governmental officers had acted “under color of law” to unconstitutionally subject her to an intrusive bodily search, Ms. Calloway brought this action under Every person who, under color of any [law], subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured . . . . Unquestionably, § 1983 focuses on the rights of individuals rather than the rights of those who act “under color of law.” But the majority opinion improperly frames the issue in this case as “whether corrections officers had a reasonable suspicion sufficient under the Fourth Amendment to justify conducting a strip search of a prison visitor.” Ante at 3. Yet, this case is not about “a strip search,” it is about a search significantly more intrusive than a “standard strip search.”1 And more importantly, it is not a case about the officers’ rights; it is about the rights of the individual, Ms. Calloway, to not be subjected to an intrusive bodily search. Upon viewing the evidence in this case—to determine whether Ms. Calloway‘s rights were violated—under the appropriate legal standard, which is in a light most favorable to her, it is evident that a reasonable jury could conclude the intrusive search was not supported by reasonable suspicion based on individualized, particularized facts. With respect for my colleagues in the majority, I must dissent. This case is before us on appeal from the grant of the officers’ motion for summary judgment. Accordingly, we must “construe the evidence” and “view the facts and any reasonable inferences in the light most favorable” to Ms. Calloway, the non-moving party. Betton v. Belue, 942 F.3d 184, 190, 191 (4th Cir. 2019). We must “not weigh the evidence or make credibility determinations.” Id. at 190. And for Ms. Calloway‘s claims “[t]o survive summary judgment, ‘there must be evidence on Although the majority opinion recounts that we “apply[ ] the same standard that the district court was required to apply,” it does not explicitly acknowledge that we must view the evidence in the light most favorable to Ms. Calloway. Ante at 12. On several factual questions, the majority fails to apply that required standard. That failure constitutes a “violation of basic summary judgment principles.” Harris v. Pittman, 927 F.3d 266, 273 (4th Cir. 2019), petition for cert. filed, No. 19-466 (U.S. Oct. 9, 2019). First, the majority opinion aggregates the knowledge of all officers involved in the search of Ms. Calloway—no matter how tangentially—without regard to what information was actually known at the time by the decision-making officers, Lokey and Jeffrey Brown. This is error. This Circuit does not permit the “knowledge of several officers [to] be aggregated to create probable cause” or reasonable suspicion. United States v. Massenburg, 654 F.3d 480, 493–94 (4th Cir. 2011) (quotations and citations omitted). True, under limited circumstances, the action of one officer taken on another‘s instruction “is justified if the instructing officer had sufficient information to justify taking such action herself.” Id. at 492. But this “does not permit us to aggregate bits and pieces of information from among myriad officers, nor does it apply outside the context of communicated alerts or instructions.” Id. at 493. Rather, “we focus on the facts and circumstances confronting the officer ‘immediately prior to and at the very moment‘” the challenged action occurred “and disregard information not known to the officer at that time.” Ray v. Roane, No. 18-2120, slip op. at 2 (4th Cir. Jan. __, 2020) (quoting Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991)). The majority acknowledges that it is “beyond genuine dispute that [Lokey and Jeffrey Brown] made the decision” to search Ms. Calloway. Ante at 15. Nevertheless, the majority opinion relies upon information unknown to those officers at the time of the decision. For example, in his deposition, Lokey stated that no one told him, prior to the search, that Ms. Calloway had been acting nervously. [J.A. 429.] Nonetheless, the majority opinion recounts that Heidi Brown “later recalled that [Ms.] Calloway ‘looked a little frazzled and kind of nervous,‘” and finds that Nelson “thought that ‘[Ms.] Calloway appeared to be nervous.‘” Ante at 5–6. Similarly, although the majority opinion reports that “Nelson also thought that ‘Talbert [the inmate,] seemed to be keeping an eye on the correctional officers as they made their rounds’ through the visitation room,” nothing in the record suggests that Nelson‘s observation was communicated to Lokey or Jeffrey Brown. Ante at 6. Significantly, Nelson and Heidi Brown‘s uncommunicated observations are irrelevant to the analysis of whether Lokey and Jeffrey Brown had reasonable suspicion to justify the intrusive body search. By including these irrelevant details, the majority opinion fails to “disregard information not known to” Lokey and Jeffrey Brown at the time they decided to conduct an intrusive search of Ms. Calloway‘s body. Ray, No. 18-2120, slip op. at 2. That improperly and incorrectly suggests that the decision to conduct an intrusive search of Ms. Calloway‘s Second, in discussing the “tip” heard by Lokey, the majority opinion fails to view the facts in the light most favorable to Ms. Calloway. The majority overstates the informational value of the “tip” when it describes it as “a more concrete tip from an inmate that ‘Talbert was moving.‘” Ante at 15. In his deposition, Lokey acknowledged he could not “recall who said that” Talbert was moving, but that he heard it “through passing.” J.A. 378. Viewing the evidence in the light most favorable to Ms. Calloway, Lokey heard “through passing” from someone—not necessarily an inmate—that an individual named Talbert, an inmate, was “moving.” Importantly, this “tip” stands in stark contrast with those found to support searches in comparable cases. In other cases, the tip came from a known and reliable source, specified the individual of concern, and provided details about that individual‘s plan. For example, in Leverette v. Bell, an informant stated that a specific prison employee planned to smuggle marijuana into the prison by concealing it in a tampon. 247 F.3d 160, 163 (4th Cir. 2001). That informant had previously provided accurate tips. Id. And in Varrone v. Bilotti, which the defendants cited before the district court, the Second Circuit considered a prosecutor‘s tip that an inmate‘s wife and son would soon visit and that they would try to bring heroin into the prison when they did. 123 F.3d 75, 77 (2d Cir. 1997). The court concluded the tip sufficiently established reasonable suspicion to search the wife and son when they visited the prison later that month. Id. at 80 (“The information identified the smugglers by name, stated where and when they would commit the offense and specified the particular drug they would attempt to smuggle.“). The tips provided to the officers in Varrone and Leverette were specific to the persons searched, came from reliable sources, and included details as to the drug or method of smuggling. Varrone, 123 F.3d at 77; Leverette, 247 F.3d at 163. The “tip” in this case bore none of these markers. Lokey was unable to identify who provided the “tip,” which had no indicia of reliability. Nor did the “tip” identify a particular time, method, or material that would be “moved.” And most critically, the “tip” did not identify or even implicate Ms. Calloway. Additionally, the majority opinion does not view the record in the light most favorable to Ms. Calloway when it states that the “tip” Lokey heard “suggested that Talbert might attempt to have an outside visitor sneak contraband into Augusta, as he had attempted to do at Bland.” Ante at 15. In fact, at Bland, which is another correctional facility, Talbert had his mother and another inmate‘s sister leave several pounds of tobacco somewhere near the prison for another inmate to retrieve. So, even if Lokey believed Talbert was likely to attempt to smuggle in contraband, his past methodology did not involve an authorized visitor (like Ms. Calloway) smuggling contraband on her person into the visitation room. Third, the majority fails to view the record in the light most favorable to Ms. Calloway in describing Nelson‘s record of identifying suspicious activity in the visitation room. The district court found that “Nelson had a history of successfully identifying suspicious behavior that led to the interception In short, this evidence does not support the conclusion that “Nelson [had] been very successful in the past [in] identifying suspicious actions.” In fact, that characterization of the record improperly accepts Lokey‘s perception as accurate and draws an inference against Ms. Calloway. Additionally, the majority opinion did not view the facts in Ms. Calloway‘s favor when it failed to properly identify the moment Lokey and Jeffrey Brown concluded they were justified in searching Ms. Calloway. Evidence in the record shows that Lokey and Jeffrey Brown had already decided they had reasonable suspicion to conduct an intrusive search of Ms. Calloway‘s body before they removed her from the visitation room. Specifically, when he was asked to describe his involvement in the decision to “request [Ms. Calloway‘s] consent to a ‘strip search,‘” Jeffrey Brown responded that “Lokey informed [him] that he had reasonable suspicion based on a report from another staff member.” J.A. 314–15. And the report documenting the search completed by Heidi Brown indicates a time of 1:50 p.m., more than five minutes prior to the time the video in the record shows officers entering the visitation room to remove Ms. Calloway. [J.A. 412.] Ms. Calloway‘s signature on the Consent for Strip or Body Cavity Search form indicates a time of 2:04 p.m. [J.A. 318.] In her deposition, Heidi Brown indicated she thought she may have been summoned to perform the search before Ms. Calloway signed the consent form. [J.A. 351.] That follows from the fact that her report bears a time stamp before the search and before the consent form was signed. Viewing this evidence in the light most favorable to Ms. Calloway, as we are required to do at this stage, Lokey and Jeffrey Brown concluded, following Nelson‘s report, that they had reasonable suspicion Ms. Calloway was trying to smuggle contraband, and they summoned a female officer, Heidi Brown, to strip search her. The majority, however, describes their decision as “agree[ing] to speak to Calloway to request that she consent.” Ante at 7. That unfairly delays the moment at which we measure for reasonable suspicion. And by delaying that moment, the majority opinion again opens the door for information—in this instance, Ms. Calloway‘s answers to Lokey and Jeffrey Brown‘s questions after they removed her from the visitation room—unknown to the decision-making officers when they made the decision to search. As described above, the majority opinion failed to view the record in the light most favorable to Ms. Calloway. Contrary to the majority opinion‘s conclusion, when we properly disregard the information unknown to the decision-making officers, Lokey and Jeffrey Brown, at the time of the search, it is apparent that they had little individualized, particularized information when they concluded they had reasonable suspicion and summoned officers to conduct the intrusive body search. They had Nelson‘s report about Ms. Calloway adjusting her pants in the visitation room, they knew Ms. Calloway was visiting the inmate, Talbert, and they knew that Lokey had heard vague information from an unidentified source that “Talbert was moving.”2 The majority concludes “that this sequence of events—taken as a whole—was legally sufficient to justify a reasonable officer‘s belief that there was at least ‘a moderate chance’ that [Ms.] Calloway was concealing contraband on her person while visiting the prison.” Ante at 16. But whether a reasonable officer could believe Ms. Calloway was concealing contraband is not the question before us. The question is whether—viewing the evidence in the light most favorable to Ms. Calloway—a reasonable jury could conclude the search was not supported by the individualized, particularized information required by the Fourth Amendment. In determining whether a reasonable jury could conclude the officers violated Ms. Calloway‘s rights, we 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.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). And although “reasonable suspicion is the minimum requirement, . . . the more personal and invasive the search activities of the authorities become, the more particularized As to the manner of the search, this was an intrusive search. Although the majority describes it as a “strip search,” the officers in this case had Ms. Calloway expose her anal area and take out her tampon from her vagina and place it in an officer‘s hand for inspection. This was in addition to raising her arms, lifting her breasts, opening her mouth, and passing her hands through her hair. “Courts examining the constitutionality of physically intrusive searches have distinguished between strip searches, visual body cavity searches, and manual body cavity searches. A ‘visual body cavity search’ requires the searched individual to expose her anal and vaginal cavities for visual inspection.” Leverette, 247 F.3d at 165 n.3. Unquestionably, the search of Ms. Calloway‘s body—which included a visual inspection of her anal cavity and an order to remove her tampon from her vagina in front of two officers and place her used tampon in an officer‘s hand for inspection—was an intrusive search, more like a visual body cavity search than a standard strip search. Id. at 165 (describing a “standard strip search” as “requiring the subject to disrobe, squat, and cough“). Additionally, viewing the evidence in a light most favorable to Ms. Calloway shows that the officers’ lacked justification for initiating the search. As even the district court acknowledged, “[m]ost of the video reflects largely innocuous behavior.” J.A. 453. Nelson, who was watching a live video that differs slightly from the video in the record, saw and reported to Lokey that “it looked like [Ms. Calloway] reached inside the front of her pants.” J.A. 151. That is the extent of the individualized, particularized information related to Ms. Calloway. At the time Lokey and Jeffrey Brown concluded they had reasonable suspicion to subject Ms. Calloway to a strip search and summoned female officers to conduct it, Lokey and Jeffrey Brown had the report from Nelson that Ms. Calloway had adjusted or “messed with” her pants, and Lokey had heard that Talbert was “moving.” That is it. All of the other supporting information the officers identify was either unknown to Lokey and Jeffrey Brown at the time or related to the inmate, Talbert, not Ms. Calloway. To be sure, prisons have unique and serious security needs. See Bell, 441 U.S. at 558–60. But those needs are met by allowing prison officials to strip search prison visitors when those officials have reasonable suspicion based on individualized, particularized information. But as we acknowledged for prison employees in Leverette, a visitor to a prison “does not forfeit all privacy rights” when she enters. 247 F.3d at 167. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.‘” Riley v. California, 573 U.S. 373, 381 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). Looking to the considerations set out in Bell and Leverette, a reasonable jury could conclude the supporting information here—the report from Nelson and the vague information about the inmate who Ms. Calloway was visiting—was insufficient to justify this intrusive search. Accordingly, the officers in this matter were not entitled to summary judgment on the basis that no reasonable jury could find the search was not supported by reasonable suspicion.3 In addition to failing to apply key summary judgment principles, the majority opinion turns away from the promise of Congress saw the need to enact Eventually, Congress responded by enacting a series of Enforcement Acts in 1870 and 1871, “to counteract terrorist violence.” Id. at 195. The Civil Rights Act of 1871 included a measure to criminalize, under federal law, acts and conspiracies to deny citizens their rights, allowing the federal government to prosecute where states failed to act. Id. The current version of § 1983 derives from § 1 of that Act. Ngiraingas, 495 U.S. at 187. The Act was remedial, and it was part of a profound change in the relationship between federal and state authorities, particularly in the protection of individual rights against abuses by States and state officials. Id. Finally, these are not abstract concerns. Our adherence to the appropriate standards in enforcing constitutional rights has real consequences for real people, and not only Ms. Calloway.4 Nearly 1.5 million individuals in this country are held in state or federal prisons. Bureau of Justice Statistics, Prisoners in 2017 Summary 1 (2019), https://www.bjs.gov/content/pub/pdf/p17_sum.pdf. Those inmates have families and friends who visit them during their incarceration. The Virginia Department of Corrections itself acknowledges that “[v]isitors play an important role in an offender‘s successful re-entry into the community.” Virginia Department of Corrections, Visiting an Offender, https://vadoc.virginia.gov/families-friends-of-offenders/visiting-an-offender/ (last visited Jan. 6, 2020). Indeed, the department touts programs available to inmates that rely on visitors to its institutions. See, e.g., Virginia Department of Corrections, 105 Graduate at Haynesville Correctional Center, 17 Receive Associate‘s Degrees, Agency News (Nov. 18, 2019), https://vadoc.virginia.gov/news-press-releases/2019/105-graduate-at-haynesville-correctional-center-17-receive-associates-degrees/ (last visited Jan. 6, 2020). Across the country, visitors to prisons help maintain family and community ties, enrich educational and vocational programs, and provide opportunities for religious study and observance. See, e.g., Grant Duwe & Byron R. Johnson, The Effects of Prison Visits from Community Volunteers on Offender Recidivism, 96 Prison J. 279, 296–300 (2016). These efforts support rehabilitation and re-entry. Id. But subjecting visitors to an invasive body search on the basis of the scant information that the officers had here puts those programs and benefits at risk. Visitors will be deterred from entering a prison if they know something as innocuous as adjusting their clothing could subject them to humiliating, degrading, and intrusive searches of their bodies.5 In sum, properly framing the issue in this matter, applying the appropriate standard of review to the facts, and focusing on the individual‘s rights at stake leads to the conclusion that a reasonable jury could determine that such limited information does not amount to the individualized, particularized, and reasonable suspicion required for such an invasive search. So, what is now required for a law-abiding citizen to be subjected to an intrusive search of her body while visiting an inmate? The majority opinion answers: Because I disagree that this evidence was sufficient to show the individualized, particularized, and reasonable suspicion required for the invasive search of Ms. Calloway‘s body, I must, with great respect for my colleagues in the majority, dissent.I
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Notes
But even if Leverette and Johnson were somehow insufficient to put officials on notice that they may not strip search prison visitors without reasonable suspicion, cases from our sister circuits would surely suffice. “In the absence of ‘directly on-point, binding authority,’ courts may also consider whether ‘the right was clearly established based on general constitutional principles or a consensus of persuasive authority.‘” Ray, No. 18-2120, slip op. at 10 (quoting Booker v. S.C. Dep‘t of Corr., 855 F.3d 533, 543 (4th Cir. 2017)). The Second Circuit concluded it was clearly established in March 1989, “under the law of the United States Supreme Court, the Court of Appeals for the Second Circuit, and the other circuit courts of appeals,” that a search of prison visitors without reasonable suspicion violated the Fourth Amendment. Varrone, 123 F.3d at 78 (internal quotation marks omitted). Many of our sister circuits have held similarly. Blackburn v. Snow, 771 F.2d 556, 569–70 (1st Cir. 1985); Thorne v. Jones, 765 F.2d 1270, 1277 (5th Cir. 1985); Daugherty v. Campbell, 33 F.3d 554, 556 (6th Cir. 1994); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982); Romo v. Champion, 46 F.3d 1013, 1019 (10th Cir. 1995); see also Burgess v. Lowery, 201 F.3d 942, 945 (7th Cir. 2000) (“In a long and unbroken series of decisions by our sister circuits stretching back to the early 1980s, it had become well established long before these defendants subjected these plaintiffs to strip searches that strip searches of prison visitors were unconstitutional in the absence of reasonable suspicion that the visitor was carrying contraband.“).