Bradley v. United States
299 F.3d 197
3rd Cir.
2002
Check Treatment
Docket

Yvеtte BRADLEY, Appellant v. The UNITED STATES of America; United States Customs Service; Raymond W. Kelly, Commissioner of the United States Customs Service, in his official capacity; Samuel H. Banks, Deputy Commissioner of the United States Customs Service, in his official capacity; Robert J. McNamara, Acting Assistant Commissioner for the Office of Field Operations, United States Customs Service, in his official capacity; Charles Winwood, former Assistant Commissioner for the Office of Field Operations, United States Customs Service, in his office capacity; Ricardo Bowen, Passenger Service Representative of the United States Customs Service at Newark Airport, in his official capacity; Kathleen Haage, Port Director of the United States Customs Service in the New York/Newark Area, in her official capacity; United States Customs Supervisory Inspector Luciana, in his official capacity; United States Customs Inspectors, Holding Badge Numbers 40211, 15538 and 37018, In Their Official and individual capacities; and an Unknown Number of Unnamed and Unknown Inspectors and Supervisors of the United States Customs Service, in their оfficial and individual capacities; Michelle Mazzarulli, United States Customs Inspector in her official and individual capacities; Jackie Castleberry, Customs Inspector, in her official and individual capacities; Anthony Scaringella, Inspector, in his official and individual capacities

No. 01-4103

United States Court of Appeals, Third Circuit

Argued: June 4, 2002. Filed: July 25, 2002.

299 F.3d 197

district court found, giving the plaintiffs the benefit of every possible inference, no reasonable juror could find that the depiction of Jane Doe (4) converted the depiction of the two other Does into a lascivious exhibition оf their genitalia or pubic areas.

The district court similarly analyzed the studio photos under the criteria supplied by governing law. As the court concluded, all but three of the photos failed to meet the threshold requirement of exhibiting the genital or pubic areas of a minor. In the three that conceivably met the threshold, not only is there no naked display of the forbidden zones, no such zone serves as the focal point. The setting is not sexually suggestive—a white paper background typical of studio photography. Thе poses are not unnatural; the attire is of the kind used in artistic or theatrical shows. There is no hint of sexual coyness or readiness on the part of the plaintiffs to have sex. There is no incitement to lust. No reasonable juror could find any of the studio photos to qualify as criminal under the Protection of Children Against Sexual Exploitation Act.

Finally, the district court considered two kinds of photos not in the record, but referenced in affidavits by the Does. According to Jane Doe (1) she was photographed by Lesoine wearing оnly tuxedo pants and a jacket. As the district court observed, this photo would not meet the statutory threshold. Jane Doe (1) also swore that she was photographed in “a very thin, see-through piece of material” at all times with the front of her body including the pubic area before the camera. Jane Doe (1) had never seen negatives or prints of these pictures. Jane Doe (2) swore to a similar affidavit. The district court followed

in holding that a lascivious exhibition could be established by testimony,
, but also took note of
admonition that detail was important and that imagination was no substitute for facts. The district court held that it could not determine from the affidavit whether the pubic areas were visible under the transparent material; it was necessary to know the lighting, the pose, and the focus of the camera to determine whether there was an exhibition. Lacking this information, the district court correctly held that no reasonable juror could find the referenced photos to be a lascivious exhibition.

As an author who was himself once the victim of overzealous censorship has written: genuine pornography “is almost always under-world; it doesn‘t come into the open . . . [y]ou can recognize it by the insult it offers, invariably, to sex, and to the human spirit.” D.H. Lawrence, Phoenix, 175 (1936). The photographs at issue in this case offer no insult to sex or to the human spirit. No jury could find them to fall within the federal statute‘s definition of sexually explicit conduct.

As the case against Lesoine fails, a fortiori the case against her husband, a bystander, fails.

For the reasons stated, the judgment of the district court is AFFIRMED.

Alix R. Rubin (Argued), Lowenstein Sandler, Roseland, NJ, Edward Barocas, American Civil Liberties Union of New Jersey Foundation, Newark, NJ, for Appellant.

Susan C. Cassell (Argued), Assistant U.S. Attorney, Office of United States Attorney, Newark, NJ, for Appellees.

Before: SCIRICA, BARRY, and WEIS, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

Much has been written about “border searches” and we will not break much new ground here. We believe it appropriate, however, particularly in light of the tragedy of September 11th and the anti-terrorism efforts being made in its aftermath, to reprise what has been written in the course of concluding that the border search at issue here wаs well within the bounds of law. The order of the District Court will, therefore, be affirmed.

I. Introduction

Yvette Bradley, an African-American woman, brought this

against the United States, the United States Customs Service, and a number of customs inspectors, supervisors, and officials. She alleged that her constitutional rights were violated when, on April 5, 1999, customs inspectors subjected her to a search of her suitcase, purse and backpack, as well as a patdown, when she arrived at Newark International Airport on a nonstop international flight from the island of Jamaica. Bradley argued that she was selеcted because of her race and gender, in violation of her equal protection rights under the Fifth and Fourteenth Amendments, and that the patdown was an illegal search under the Fourth Amendment.2 The District Court granted defendants’ motion for summary judgment, and Bradley now appeals. The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court‘s grant of summary judgment de novo.
.

II. The Patdown—and the Fourth Amendment

While Bradley refers in passing to the search of her luggage, her challenge is directed almost exclusively to the patdown, albeit what she describes as the “intrusive patdown,” to which she was subjected at an immigration checkpoint at the Newark International Airрort. She argues that in granting summary judgment, the District Court failed to construe the facts in the light most favorable to her as, of course, it was required to do given that she was the non-moving party. The facts as relevant to her Fourth Amendment claim are, however, largely undisputed. Those facts, viewed against well-settled law, defeat that claim.

It is not disputed, for example, that Jamaica is considered by Customs to be a source country for narcotics and that Jamaica Airlines Flight 19, on which Bradley arrived, is considered by Customs to be a high risk flight for narcotics, although Bradley herself does not believe either to be so. It is also not disputed that Bradley was subjected to a patdown, and not a strip search, a body cavity search, or any other type of highly intrusive search. It is not disputed that the patdown was done over Bradley‘s dress by a female inspector ‍‌​‌‌‌‌​​​‌‌‌​​​‌​‌​​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​‍in the presence of a second female inspector and that Bradley‘s skin was not directly touched in any intimate area. It is not disputed that when the patdown reached what Bradley calls her “groin area,” her internal genitalia were not penetrated through the dress. Crediting her version of the facts, the touching that occurred involved the inspector “us[ing] her fingers to inappropriately push on [Bradley‘s] breasts and into the inner and outer labia,” Bradley aff. P 28, the latter concededly part of the external genitalia of a woman.3 Bradley, we note, was not wearing underwear and does not dispute that had she been doing so, the additional layer of cloth would have reduced any intrusion that took place. And, of course, Bradley does not dispute that no drugs or other contraband were found.

Neither does Bradley take issue with the law, nor could she, for courts, including our Court, have long held that routine searches at our nation‘s borders are presumed to be reasonable under the Fourth Amendment. See, e.g.,

;
;
. Immigration checkpoints at international airports are the functional equivalent of national borders.
. As a sovereign state, the United States has the right to “protect itself by stopping and examining persons and property crossing into this country.”
.4 “Since the

founding of our Rеpublic, Congress has granted the Executive plenary power to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.”

. For example, Congress has empowered border officials to detain and search “all persons coming into the United States from foreign countries.” 19 U.S.C. § 1582; see also 19 U.S.C. § 1496 (authorizing customs officials to search the baggage of persons entering the country); 19 C.F.R. § 162.6 (authorizing customs officials to inspect and search all persons, baggage, and merchandise arriving from foreign countries).

It has, of course, also long been true that our nation‘s historic concern for the integrity of its borders has been “heightened by the veritable national crisis in law enforcement caused by [the] smuggling of illicit narcotics.”

(citing
) (Powell, J., concurring). And it is beyond peradventure, as the Seventh Circuit has noted, that “the events of September 11, 2001, only emphasize the heightened need to conduct searches” at оur borders.
.

In

, the Supreme Court‘s most recent case on border searches, the Court reiterated that, because the Fourth Amendment‘s balance of reasonableness is qualitatively different at the international border than in the interior, “routine searches” of persons and their effects at the border “are not subject to any requirement of reasonable suspicion, probable cause, or warrant.”
(citing
;
; and
). The Court had not previously determined what level of suspicion would justify the detention of an incoming traveler in a nonroutine border search and inspection. In
, however, the Court concluded that an alimentary canal search was not “routine” and is justified only if customs agents reasonably suspect that the traveler is smuggling contraband in his or her alimentary canal. “Reasonable suspicion” was defined as “‘a particularized and objective basis for suspecting the particular person’ ” of smuggling contraband.
(quoting
). The Court explicitly declined, however, to determine, “what level of suspicion, if any, is required for[other] nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.”
(emphasis added).

In the course of concluding that an alimentary canal search must be supported by reasonable suspicion, and that reasonable suspicion supported the search of the balloon swallower before it, the Court bemoaned the “subtle verbal gradations” being developed by courts of appeals to enunciate the Fourth Amendment standard of reasonableness which “may obscure rather than elucidate the meaning of the provision in question.”

.5 The Second Circuit viewed this

statement as “warning” against the development of multiple gradations of suspicion to be applied to different types of border searches.

.

While we have not had the occasion to ‍‌​‌‌‌‌​​​‌‌‌​​​‌​‌​​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​‍address the question left open in

—the level of suspicion, “if any,” necessary to conduct at least certain types of nonroutine searches—those court of appeals that have done so agree that reasonable suspicion is required.
;
;
;
;
.

We are not, of course, dealing here with a strip search or a body cavity search or any of the other typical nonroutine searches, but, rather, with a patdown. While the Supreme Court has never articulated what makes a border search routine and has never explicitly classified patdowns as routine, of those courts of appeals which have addressed the patdown issue since

, none has held that a standard patdown at the border is a nonroutine search requiring reasonable suspicion and all have held that such patdowns come within the “routine” border search category and, thus, require no suspicion whatsoever.6

;
(luggage searches and patdowns are routine and do not require reasonable suspicion);
;
; c.f.
(the patdown in that case was a routine border search requiring no level of suspicion at all). We now join those courts, although we do not foreclose the possibility that a patdown gone awry could become so intrusive as to become a nonroutine search requiring application of the reasonable suspicion standard.7

This, says Bradlеy, was just such a case, with the patdown to which she was subjected so intrusive that, although it was concededly not a body cavity or strip search, it became “nonroutine,” thereby requiring reasonable suspicion which, she argues, did not exist. We need not decide whether the customs inspectors reasonably suspected that Bradley was smuggling contraband because we conclude that the patdown was not so intrusive as to be transformed into a nonroutine border search.

Bradley has not pointed us to any court of aрpeals’ decision subsequent to

which has held that on a border search even an “intrusive” patdown is nonroutine and must be supported by reasonable suspicion. See n. 9 infra. Rather, she relies for this proposition on
, a decision which simply does not do for Bradley what it did for the one named plaintiff in that class action who survived a motion for summary judgment. Viewing the facts in her favor, the District Court found that the plaintiff was subjected to an intrusive patdown search which involved the customs inspector pushing her hand through plaintiff‘s clothes and her finger into plaintiff‘s vagina six times causing pain. The Court found that this was “close enough to a cavity search and done repeatedly enough to be more than just a standard patdown search,”
, and that reasonable suspicion did not exist. The Court noted two other types of conduct that, in its view, would cause a patdown to become so intrusive that it could be justified only by reasonable suspicion. First, it suggested that a patdown in which an “inspector reaches under the traveler‘s clothes, particularly in the breаst and crotch area” would require reasonable suspicion.
. As an example, the Court cited an earlier incarnation of
, discussed above in note 8, where Saffell alleged (an allegation later disproved at a bench trial) that “the inspector reached under Saffell‘s bra and under her underwear, examining Saffell‘s entire pubic area and inserting her finger in Saffell‘s vagina.”
. Second, the Court suggested that the “[f]ondling of a traveler‘s genital area, breasts, or buttocks area during a patdown would also constitute an intrusive patdown.”
. The Court defined “fondling” as touching “in a sexual or sexually suggestive manner.”
. It noted, however, that even an “aggressive” patdown in the crotch or breast area would be sufficiently intrusive to require reasonable suspicion.

, we reiterate, is the sole decision on which Bradley‘s argument depends. There is, however, nothing in
, either in the conduct it was reviewing or in the conduct that it hypothesized could warrant relief, that comes close to that which Bradley describes. While, as the District Court observed in Bradley‘s case, “[p]enetration of [a woman‘s] internal genitalia, absent rеasonable suspicion, would in all likelihood constitute an unreasonable search,” JA28-29, customs officials as a matter of standard procedure are permitted to feel over clothing for bulges in an area known by them as a common place for hiding contraband. JA29. That is precisely what they did here, and the District Court correctly rejected Bradley‘s Fourth Amendment claim.

This was, no doubt, a disagreeable experience for Bradley. That it was not, in our view, a constitutional violation does not mean, in the words of the

, “that Customs agеnts have free license to exceed what is reasonable and proper under the law in order to accomplish their important responsibilities. They must be sensitive to their intrusive powers and not abuse and misuse those powers. . . .”
.

One final note. The District Court concluded that even if Bradley had made out a prima facie claim of a constitutional ‍‌​‌‌‌‌​​​‌‌‌​​​‌​‌​​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​‍violation, the three named customs inspectors would be entitled to qualified immunity. Given our conclusion that no Fourth Amendment violation was stated, we need not reach this issue. We note, however, that in April 1999, when Bradley arrived at the Newark International Airport, there was no law post-

, much less “clearly established” law, that at our nation‘s borders even an intrusive patdown search was anything other than “routine” such that it required reasonable suspicion.9

III. Equal Protection Violation

The fact that there was no Fourth Amendment violation does not mean that one was not discriminatorily selected for a search. Bradley alleges that the defendants violated her right to equal protection under the Fifth and Fourteenth Amendments to the United States Constitution when customs officials selected her for a luggage and then a patdown search because she was an African-American female.10 To make an equal protection claim in the profiling context, Bradley was required to prove that the actions of customs officials (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.

(race discrimination);
(race discrimination);
(racial profiling) (citing
) (gender discrimination). Bradley‘s equal protection claim is bereft of proof.

To prove discriminatory effect, Bradley had to show that she is a member of a protected class and that she was treated differently from similarly situated individuals in an unprotected class.

; see also
;
. Bradley, an African-American woman, is clearly a member of a protected class. Thus, our sole inquiry under this prong of the analysis is whether Bradley submitted evidence that customs officials treated her differently from similarly situated members of an unprotected class. Discriminatory effect may be proven by naming similarly situated members of an unprotected class who were not selected for the same search or, in some cases, by submitting statistical evidence of bias.
.11

While her primary complaint is, again, directed to the patdown, Bradley also argues that customs officials selected her for the luggage search based on the fact that a group of unidentified but similarly situated white males—similarly situated because they were wearing baseball caps while she was wearing a wool designer hat with two braids hanging down the sides—were not selected to have their luggage searched. Even if we assume that the white males were similarly situated, an assumption we are somewhat loаthe to make, Bradley failed to submit any evidence that she was unfairly singled out. The mere fact that a few unidentified white males on a flight of many passengers were not selected when Bradley was does not, without more, demonstrate a discriminatory effect. As to her selection for a patdown search, Bradley has conceded that the only other person on her flight of whom she was aware who was selected for a patdown search was a white male who, we note, was found carrying drugs. This certainly does not indiсate discrimination. Finally, Bradley failed to submit any statistical evidence of bias. There was, then, no evidence of discriminatory effect before the District Court.

Bradley does not contest this conclusion; rather, she argues that she failed to meet her burden of proof because the District Court restricted discovery and then granted summary judgment prematurely. “[W]e review a claim that the district court has prematurely granted summary judgment for abuse of discretion.”

. Although Bradley claims that additional discovery was critical to her сase, she failed to file an affidavit pursuant to Federal Rules of Civil Procedure 56(f) identifying “with specificity what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.”
(citation and internal

quotations omitted). We have made clear that, in all but the most exceptional cases, failure to comply with Rule 56(f) is fatal to a claim of insufficient discovery on appeal.

(citing
). While Bradley argues that she constructively met the Rule 56(f) affidavit requirement, we have generally rejected constructive compliance arguments. See e.g.,
. Given the strong presumption against a finding of constructive compliance with Rule 56(f), the District Court did not abuse its discretion when it granted summary judgment without allowing additional discovery.12

Evaluating the record that was before the District Court, we conclude that Bradley failed to present evidence that, when viewed in the light most favorable to her, would demonstrate a “discriminatory effect.” Accordingly we need not determine, as the District Court did not need to determine, whether the customs officials acted with a “discriminatory purрose” when they selected Bradley for the luggage and patdown searches.

IV. Conclusion

The order of the District Court will be affirmed.

BARRY, Circuit Judge.

Notes

2
2. Bradley also raised a privacy claim under the Ninth Amendment, a procedural due process claim, a claim for supervisory liability, and various other claims against the United States under the Federal Tort Claims Act. She does not take issue with the District Court‘s decision regarding these claims and, accordingly, they are waived.
.
3
3. We note, without further comment, that the “us[ing] her fingers to inappropriately push into” language is a change from the “rub her hands over” language in the Complaint and Amended Complaint. JA129, 357. While ‍‌​‌‌‌‌​​​‌‌‌​​​‌​‌​​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​‍the District Court appeared to concentrate on the language in the complaints rather than the affidavit, we will focus, as does Bradley, on the affidavit while reaching the same result the District Court reached.
4
4. Courts have also long held that an individual‘s reasonable expectation of privacy is lower at the border than in the interior of the country. See, e.g.,
. “[T]he Fourth Amendment balance between the interests of the Government and the privacy right of the individual is struck much more favorably to the Government at the border.”
.
5
5. The Court noted by way of example that the Ninth Circuit in
used “clear indication” of smuggling language,
and the Eleventh Circuit, on almost identical facts, adopted a reasonable suspicion standard.
.
6
6. The Second Circuit has also held that lifting a woman‘s skirt at the border to look for contraband is a routine search not requiring any suspicion. See, e.g.,
; see also
(noting that the lifting of a woman‘s skirt to check for contraband was a routine search not necessarily requiring any degree of suspicion).
7
7. Somewhat surprisingly, the government argues to us and argued before the District Court, with the District Court finding it “undisputed,” that “[a]t the border, Customs Insрectors can send someone for a patdown with mere suspicion.” JA47. The argument that “mere suspicion” is required is presumably based on the U.S. Customs Service‘s Personal Search Handbook that, in discussing “Procedures Applicable to Patdowns,” states that “Some or Mere Suspicion is Required.” The sole support for this statement, however, is a 1975 Ninth Circuit case which does not so clearly stand for the proposition for which it is cited and which, in any event, has been effectively overruled by the Ninth Circuit‘s post-Montoya de Hernandez decision in
.
8
8. It appears that when the Seventh Circuit is called upоn to decide the issue it, too, will join. The Court, in
, although reviewing only a partial strip search, nonetheless observed that the patdown which had preceded the strip search revealed a bulge through Saffell‘s clothes “in the most intimate area of her body, a place where drugs are sometimes known to be secreted by women.”
. It found that “there was justification” for the patdown, id., and did not even suggest that patting down the crotch area turned the patdown into an intrusive patdown search requiring reasonable suspicion. It is unclear, however, by the use of the word “justifiсation” whether it believed that the balancing test adopted in its 1981
case, see n. 5 supra, continues to be viable after
. It appears, however, that, while not ignoring
, the Court subsequently dropped that test when it held that there are but two categories of border searches—routine searches that require no suspicion and nonroutine searches that require reasonable suspicion.
. Moreover, to employ a balancing test after
would contravene the Supreme Court‘s warning against multiple gradations of suspicion.
9
9. Aside from
, Bradley cites three post-
 cases for the proposition that “[i]n April 1999, the law was clearly established that reasonable suspicion was required to conduct an intrusive patdown search.” App. Br. at 17. None stands for that proposition. One involved the search of a suitcase, not a patdown; the second involved an alimentary canal search, with the patdown that preceded that search not challenged; and the third, our decision in
, specifically stated that “[w]e have no occasion here to speak to [that issue].”
.
10
10. Bradley also avers that black women are generally targeted by customs officials for airport searches at Newark International Airрort. As the District Court properly noted, however, this is not a class action.
11
11. In profiling cases, where it is often difficult to submit direct evidence that members of an unprotected class were not targeted for a search, statistical evidence of discrimination may be the only means of proving a discriminatory effect. As the Seventh Circuit explained: In a meritorious selective prosecution claim, a criminal defendant would be able to name others arrested for the same offense who were not prosеcuted by the arresting law enforcement agency; conversely, plaintiffs who allege that they were stopped due to racial profiling would not, barring some type of test operation, be able to provide the names of other similarly situated motorists who were not stopped.
. And “[w]hile it is true that statistics alone rarely state a violation of equal protection . . . they can be sufficient to establish discriminatory effect.”
12
12. And this is not one of the “exceptional” cases falling outside of the general rule that constructive compliance with Rule 56(f) will not suffice. The discovery Bradley now says she needed was discovery she had received, including the documents relating to her entry on April 5, 1999; discovery that was irrelevant to her case; or discovery that did not exist—for example, ten years ‍‌​‌‌‌‌​​​‌‌‌​​​‌​‌​​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​‌‌‌​‌‌​‍of “incident logs and Search and Seizure Reports” concerning passengers arriving on Flight 19 from Jamaica. The government has advised that there are no such records and, even if there were, prior to late 1999 “no notations of the race“—or presumably, the gender—“of passengers sent for secondary inspections and/or pat-down searches were required to be kept.” Appellee‘s Br. at 17.