*1 1073 appellants sup- The cases cited do not proce- SALINAS, sale
port
argument
al.,
their
Robert
et
In
dures here were unreasonable.
Connex
Plaintiffs-Appellees,
Airmotive,
Press,
Inc.,
Inc. v. International
v.
51,
F.Supp.
(D.D.C.1977),
436
55
aff’d with-
BREIER,
Chief Harold
(D.C.Cir.1978),
opinion,
out
enced ef. 11, 1983. Denied Feb. 1377; Star, Liberty, F.2d at Four B.R. failure observe the normal holding commercial the sale in a sale, propitious Liberty,
location cf. Especially
F.2d at 1381. light proceeds
substantial recovered from the
sale, we decline to overturn the district finding advertised,
court’s that this heavily
professionally run sale was conducted in a
commercially unreasonable manner.
CONCLUSION
Despite argument, appel- resourceful
lants have failed simply identify any
error law or clear effort of fact in the
district court’s determination obligations
were not released from their
principals public and that the sale com- reason,
mercially For reasonable. this $40,- court’s judgment award of plus
368.68 against interest to the SBA
appellants is affirmed.
Affirmed.
1075
certain findings are implied, because the validity some sharply chal- lenged, and because a well-defined valid findings is crucial to the isolation and identification of the legal theory or theories upon judgment which the *3 was entered or affirmed, now we set forth the findings with considerable care.
I. Findings District Court of Fact Salinas, Sr., On Robert Salinas and four of their chil- Langley, City Grant F. Asst. Atty., City dren returning by auto to Milwaukee Milwaukee, Milwaukee, Wis., for defend- trip from a to Texas. As their stopped car ant-appellant. Milwaukee, light red it was sur- First, First, Reiher, Curry Perry, Lerner by rounded Milwaukee police officers and Milwaukee, Quindel, Wis., & for plaintiffs- agents from the Drug Federal Enforcement appellees. Administration. The officers had federal bench Robert, warrant for the arrest of Sr. CUMMINGS, Before Judge, Chief They acting were also a tip that he was BAUER, Judge, DOYLE,* Circuit transporting heroin to Wisconsin from Tex- Senior District Judge. drawn; as. guns Some had their DOYLE, JAMES E. District put gun Robert, Senior to the head of Sr. Judge. Robert, Sr., transported was Police appeal by
This is an defendant chief of Building Administration in downtown Mil- (the waukee, Milwaukee Police De- and a decision was made to take partment) a judgment money Carolyn from and the children downtown as well. damages following a trial to with- police the court The them held at the scene of the jury. out a Jurisdiction is present matrons, under 28 stop police until two Audrey Reit- 1343(3) in this upon arrived, U.S.C. action based Boyle, § er and Janet at which time alleged U.S.C. in which it is § all were taken a large room with smaller appellant responsible is for unconstitutional interrogation adjoining rooms it in the Po- searches of the of plaintiff Carolyn bodies Building. lice Administration This was the ques- Salinas and four of her children. The Squad Assembly Vice' Room. tion on appeal whether the evidence is Room, Assembly While were in the support sufficient to findings fact on the patdown searches family oc-
basis of which it can be concluded that the point curred. Carolyn’s At some purse was appellant chief may money be held liable in searched. Carolyn was taken into one of damages for the acts of the unidentified interrogation rooms where a po- female persons who ordered and conducted lice officer told her was going she to be searches. one, searched. One Carolyn’s items of required district court findings removed, clothing arms, and her fin- Fed.R.Civ.P., 52(a), Rule are embodied in its gers, armpits, and back were searched for opinion. 517 F.Supp. Because the needlemarks. Then was told to gathered are not in single portion bend over. She then felt pokings opinion, because it is unclear whether vaginal rectal area and then the area.1 * Doyle, nothing support James E. Senior United States District There in the record to Wisconsin, Judge identity finding police the Western District of toas officer or sitting by designation. matron other who searched the plaintiffs, finding and no such the district court. he the women knew how said that assumed allowed dress Carolyn was
When Guy to her bath- Assembly to search her. was taken children in return her to strip, taken where was told to bend Room, her son Robert was room she 9-year-old po- over, Robert was her buttocks. interrogation room. into police thoroughly, A male her to take off his clothes. licewomen examined told over, finger and a A touching body. officer told him to bend was no When he probe began. of his take to Head- was made to decision Room Assembly again returned to in the Vice quarters and search her crying. alternately giggling again and one of Squad. stripped She officers, using rubber the female old, daughter Melody 8 years then her but- spreading assisted her in gloves, Robert, taken Sr., Carolyn, was also Eventually the female officer tocks. female officer a room where a into protruding from plastic saw a container to remove her searched her. She told *4 vagina. Guy policewom- removed it. The feeling started clothing. Then the officer decision, en, placed never according to Melody stuff. Melody poking and and fingers or hand the orifices either cry and pull away and started started Guy’s body. Melody The officer go. let then officer said, back on.2 okay, put your clothes wife, Carolyn was Because Salinas Robert, and Russell Melody, Rodney and Russell, who year-old Rodney and Three children, suspected drug of a deal- Robert, Sr., just baby, are sons of was er, subjected to degrading they also into inter- Carolyn. They were taken humiliating The searches were searches. returned, Rodney rogation rooms. When justified be thorough far more than could correctly, was clothing his not buttoned The safety precautions. any conceivable mother, was to his when Russell returned unquestionably looking for police were on paper diaper his was backwards. drugs. family safely The Salinas searches, family was taken After the attempt but was made police custody, no their car was police garage where a search warrant. obtain parked. They were not allowed drive the apparently family wanted it police car home as the At the time squad searched, Department ride home in a had no rules or detained. A arranged. governing strip or regulations in effect was no rule body cavity searches. There arrest The has no official Department that an officer could not touch which stated or record person being of a searched. buttocks children were children. and the broad, dealing rule specific There no They time. were in not free to leave at prisoners. There was no with the search of custody. what male guideline rule as to officer or place took about four The searches here when tell a female officer he should years after a similar search occurred prisoner. quests her to search female Guy McCauley, ex v. United States rel. A entitled “Milwaukee Police document In (E.D.Wis.1974). Guy, the F.Supp. 193 and used Academy, Search and Seizure” warrant in her plaintiff was arrested on a training programs constituted the recruit making While on December home Depart- comprehensive statement most arrest, drug observed police officers of the bodies policy on searches arrest bedstand. The paraphernalia custody. It stated: officers, women officer told two ing of a Atkinson, complete disrobing Sometimes named Alice including a woman search of but be and sometimes may required no instructions Guy. gave He therefore, findings, we find- points opinion, include as his the district his At certain testimony ings as fact quoted paraphrased the content such judge judge. accepted quoted paraphrased implied the district either stated or then recapitulation points in this At certain as true. required, be may cavities also believed their permissible. actions to be such detailed searches should be present None of the officers thought only extraordinary cases. Proba- the searches went too far. That practice something ble cause to believe is hidden was sanctioned by policy, or more accu- present.. must be Search cavities rately, nonpolicy Department. sanitary should be doctor under Department custom the Only conditions. such force is neces- reasonably be interpreted by a police sary except should used. That officer tragic to allow the kind of emergencies, obtain a search warrant that occurred here. This is a situation in first. which there were clear no rules or regula- At trial much confusion existed even guide tions to the officers. Even the docu- among highranking as to defini- ment entitled Academy, “Milwaukee Police “strip tions of “body cavity search” and Search and is too vague Seizure” to offer Inspector search.” An Ziolkowski was un- guidance. testify clearly able to strip whether a “policy” Department allowed cavity search becomes body search at the an unconstitutional custom or point at which an spreads officer the but- Department. exist Breier, Chief person. tocks an arrested the head of the Department, is responsible The custom of the towas custom. His officers on the line have two female officers matrons get message are violating *5 room, a take female into interrogation any policy Department they when to subject and have one observe the conduct searches such as those described gives while she disrobes and clothes here. other, goes through who the pockets, Carolyn was of conscious the humiliation linings. This is what a certain female $10,000. and should recover Melody, Rob- officer, Reiter, Audrey was trained ert, Rodney and Russell were less of aware do. Since 1969 officer Reiter had observed what was and happening, reasonable com- officer, another female Alice Atkinson pensation $2,000 to them would be each for Swessel, doing this. In a Wisconsin state Melody Robert, $1,000 and and each for prosecution court criminal of a Betty Jean Rodney and Russell. aGuy, suppression hearing was held in the Summary II. of Findings District Court course which officer Swessel testified as concerning follows a search which she had following The summary of the essential conducted in 1970: findings made the district court includes
Q. explicit as why you findings Now did certain pri- findings search which vates? implicit seem in opinion: its A. It’s a pris- routine search of female Carolyn Salinas each the four oners. children custody were taken into on Janu- Q. privates You search all the all ary 1974 under the de- circumstances prisoners? female custody scribed and were held for a time
A. Yes I do. building. The persons who arrests, transported made the plaintiffs In a decision in granting writ of building, and held them there corpus habeas Jean Betty Guy, a federal known, are they are not named de- district court stated that the record in the fendants. habeas proceeding indicated that is a common and City routine 2. Because it was believed that Robert Milwaukee body to search the cavities Salinas, Sr., might arranged for a con- females. trolled substance to be hidden on or in the body searches in case were of his wife children, this Salinas not or policemen. Carolyn clandestine act of few and each of the children were open- They open by were officers who ly, clandestinely, subjected done not to warrant- chief, responsible defendant 4. As while body
less searches Robert, Jr., and which Carolyn, police building. promulgation for the subjected to search Melody each development were of a custom all compelled to remove she was which body conducting searches searched; clothing; clothing was the manner and in the circumstances observed; body was of the naked exterior conducted, searches which the Salinas forward compelled to bend he or she for the fact responsible and he waist; at the searcher deeply fact devel- such a custom or with the search- of the buttocks the cheeks years prior January during several oped hands; probed the rectum the searcher er’s 24,1974, defendant 24,1974. January As of Melody, vagina and, prac- knowledge that such a custom finger. Rodney with searcher’s to mem- gave message tice existed. He subjected to search were each .Russell they bers of the and exam- clothing his was removed which searches authorized conduct ob- of his ined, and the exterior in which in the manner circumstances and was degrading served. Each were conducted. than thorough more and far humiliating safety justified any conceivable Findings Court on District III. Comments identity persons precaution. may findings The district the searches and conducted who ordered Rule clearly erroneous. be set aside unless unknown; De- employees they were 52(a), Fed.R.Civ.P. partment. happened relating to what 24,1974 findings Those the Milwaukee As of January Manual and the four children on Academy Search Seizure Police state- comprehensive constituted most testimo- supported are on searches Department policy free to the district court was ny which was so custody. the bodies course, clearly are not accept, of understood to allow that it could be vague however, difficulty, We had erroneous. searches, illegal police officers conduct those which bear with several of *6 to al- specifically interpreted could be of legal responsibility the on the made of the Sali- low the kind of searches happened for what these defendant chief believe some- if the searchers family nas plaintiffs. vagueness poli- of the is hidden. The thing A. Guy The Case cy an unconstitutional custom allowed Department. practice develop within the a series of factu- court recites or practice custom Such an unconstitutional concerning experience the of propositions al early as as developed in fact 1970 Decem- Betty Guy named Jean on woman in- 24, 1974. The as of continued 5, represent these Apparently, ber includ- gredients of custom Judge in this summary by Evans Salinas disrobe, in compelling persons ed Judge John W. findings by case of District clothing, observing the exte- examining the 1974, 9, in on December in case Reynolds the bodies, compelling of the naked riors District Court for which the United States the deeply at persons to bend forward granted of Wisconsin the Eastern District the waist, spreading the cheeks of buttocks Guy, ground on the corpus writ habeas of hands, inserting the the with searchers’ in a state court earlier conviction that her of the searchers into rectums fingers use evidence by the had been obtained females, vagi- and, into the in the case of in unconstitutional search of obtained family nas. of the Milwaukee vagina by members be, and thought by the searchers ex United States rel. Department. Police Depart- were, with the searches consistent (E.D. F.Supp. McCauley, 385 193 v. Guy and with the custom Wis., 1974). propositions factual in- These developed which had within the context of the two female officers names clude the policy. who had conducted the search of be the same Guy, the time of her Salinas Also, in deposition. of whom was an officer Atkinson. Counsel for the defendant ob- jected in fact-finding piece course its this Salinas offer “as an evidentiary case, material,” quotes Guy district court from while acknowledging that opinion given Judge Reynolds’ officer Atkinson decision in testimony Guy could be on by relied counsel in appearance (in 1971) argument in course in court in its decision. spe- court of in the Counsel referred state Wisconsin criminal cifically to a Judge footnote in prosecution Reynolds’ which resulted in the conviction Guy (385 decision 6), Guy. F.Supp. n. Guy, State v. 55 Wis.2d quoted which testimony by a certain (1972). officer testimony N.W.2d This was to given Randa in the prosecution state court 5, 1970, the effect that as of December Guy. in Counsel observed while in officer Atkinson all privates “seareh[ed] Salinas the court on rely that footnote of all female prisoners.” Finally in this decision, analyzing Guy the testimony connection, the Salinas ob- Randa given Guy prosecution Guy serves that in the 1974 decision appropriate not present Judge Reynolds had stated that the record case. Guy corpus proceeding habeas indi- cated “that it is a common and routine plaintiffs Counsel for repeated then practice in City Milwaukee frequent there were Judge references to cavities females.” Reynolds’ Guy decision in the course depositions and certain exhibits in Sali- The district court does ex- not nas, such police training as a manual. He find plicitly any as fact of the factual prop- argued Guy is a sound statement of ositions which it Judge summarized from be, what the law should tying in to plain- Reynolds’ opinion case. It does argument tiffs’ the law was never explicitly find as fact that as of Decem- followed in Department. ber officer Atkinson searched all privates of all female prisoners. It does Judge response Judge Evans’ was that not explicitly find as fact that as of 1970- Reynolds’ might decision have some rele- 1971, it was a common and routine on vancy notice, mind, issues like state of City Milwaukee to search the things. intent and those sorts of He stated cavities females. But a reading that he would receive the decision as an opinion district court’s leaves us certain exhibit “for it what is worth and if see that the court propositions intends all these any has value of those issues. Ab- explicit findings in Salinas under Rule that, sent I don’t see that it would have 52(a). evidentiary value this case. But —.” *7 Counsel for the defendant pressed: We take pains examine how evi- this Honor, Mr. Langley: Your guess I dentiary question was dealt with in the you’ve my answered question. onlyMy Salinas trial. problem would be that I don’t have to plaintiffs Judge When offered Reynolds’ respond to all that factual information —. Guy decision in evidence at the close of The Court: No. trial, day first of the explana- the Salinas Mr. That’s Langley: my concern. tion it for offer was that had been you The Court: No don’t. frequently referred to in the course pre- of that, in and depositions by trial Salinas the very At of opening day the second of depositions those were stipulation, being trial, for Salinas counsel defendants in as if deponents ceived evidence had stated that he wished make a of record Specifically, plaintiffs’ testified at trial. an off-the-record discussion which oc- had taking in deposi- counsel observed that prior curred to the commencement of trial Salinas, tion of officer Atkinson in he had on the first day. He stated that he had of portions testimony Guy referred indicated to the court he objected that she said her testimony and that had any regarding would evidence matters oc- which the nature of the Depending upon of J. the date January after curred crime, that he had more search than He said a detailed incident. Salinas Reynolds’ Judge specific normally may reference made be reasonable and made relating testimony Guy any and decision necessary. Judge Evans He to that decision. said complete disrobing of 1. Sometimes indicating objection, overruled his required. person may be of materi- type Evans would let that Judge cavities 2. Sometimes search record, then it would be al into the and required. may also be be given it would question weight of what detailed searches should be 3. Such Following completed. after trial cases only extraordinary discus- summary of the off-the-record this cause to believe some- a. Probable sion, correct.” Judge replied, Evans “That’s present be thing is hidden must to receive It would have been error cavities should b. Search any testimony given in evidence in Salims sanitary and under condi- by doctor prosecution Guy, the state court tions by Judge Reyn of fact made any findings necessary such force as is Only c. body and concerning Guy’s a search of olds should be used concerning Milwaukee practices time, period as of emergencies Police obtain a Except d. and those testimony for the truth of that first search warrant party findings. Defendant Breier was the Manual had is uncontradicted prosecution neither the state criminal training recruits published been used corpus proceeding nor to her habeas Guy We appreciate questions since 1971. for the United District Court States exist whether suffi- may Judge Ev District of Wisconsin. Eastern understood, ciently precise poli- to be but error. He perceived that this would be ans Any cy promulgated. been im- surely Judge Reynolds’ Guy receive declined to plied by the court that no finding of any in evidence for the truth opinion promulgated as of policy had been or summarized within quoted clearly erroneous. Reynolds’ Judge or for the truth Guy own about the incident itself findings Openness of Salinas Searches C. practices gen or about Milwaukee found that opinion only was received Guy eral. four prove might whatever relevance it act were not the clandestine children notice, mind, in concerning state of open done in the policemen, few were It was things.” “and those sorts of tent their who believed actions error, then, fact-finding course too permissible going far. accept the district court clearly are erroneous. The These true, did, testimony from the plainly as it evidence facts found record female; by one another female conducted in Guy. interrogation into an led all four children Policy Non-existence of B. Existence or one, room, Melody; searched Robert, Jr., Rodney and Russell *8 opinion ambigu is by two males. None of these four searched in effect as whether there was ous identified. Because the searchers was subject strip the of January 24, 1974 on of behind closed searches were conducted It conceded body cavity searches. and doors, no else them. There one observed most com Manual was “the Academy fore, of a of there is no evidence belief department policy” of statement prehensive employee of the identifiable The Manual testimony. to adverted searches were conducted in a whether the governing strip a policy plainly embodies went too far. permissible manner or custody: in body searches of drug-related D. or Practice3 been arrested for a Custom crime. When it was to determined search no Arrest and There is evi- custody. 1. of private parts prisoner, a female taking of a or practice: dence custom of practice her not first to obtain a wife and children found custody into doctor, of services a nurse or a medical is within an automobile in which also found and she had never conducted such a is a husband and father who arrested on hospital setting. search in a In searching using is suspected warrant and who females, private parts she used smuggle automobile controlled sub- gloves. rubber them She obtained from stances; taking wives children into Hospital County kept General them circumstances; comparable in any in a in a box drawer of a desk in the searching or of the bodies of wives and police building. Because be she would in any comparable children circumstances. touching person being searched and There no 2. Children. is evidence clothing person, she used practice searching bodies custom gloves protection rubber her of children in circumstances. protection person being searched. 3. Women. There no is evidence If a officer told police officer Atkinson or practice custom of use of the of a fingers that an arrested female was believed pos- probe vagina. searcher the rectum or sibly carrying drugs on her body, and asked officer Atkinson to search that respect With practice a custom or prisoner’s body, officer Atkinson would using spread the hands of a searcher to so, do very and the search possibly would the cheeks of buttocks of the the vaginal include area. searched, possible It being the evidence exclu consists that she had conducted a search of the police sively female private parts Atkinson, of a female age under the Boyle: Reiter and of 18. very she had During Officer Atkinson4 testified that: private parts searched the of females period from about 1970 Janu- through related, cases strictly drug not ary her search searching for contraband weapons. general vagina area of the rec- never any police She had seen woman she tum in an cases which informant has probe body worked with cavities. being stated that this where the female searched carry drugs, is known to Audrey Officer Reiter testified that: She drug possibly cases in which there is no policewoman had been a the Depart- such statement Officer informant. about from the time of her judgment Atkinson her deposition, February used own de- 1978. When ciding whether conduct such a search. asked aby officer to search fe- probe body. It was not her male whom the officer believed did routinely She conduct a strip might have controlled on her substances every prisoner person, search female she came officer Reiter would conduct the probed body contact with. She never asking prisoner to remove closest clothing, cavities. The she would come was her searching the clothing, ob- to touch the buttocks It was serving muscles. her and if there body, private not her to search all possibility of something being concealed parts prisoners, of all female vagina, asking all her her to bend over prisoners female charged hand, who are with or and to cheeks with opinion, expressed By deposi- This comment reflects our the time she testified in Salinas above, Judge Reynolds’ Atkinson, (February 1981), that the content of de- tion and at trial received, Guy Guy cision was not and could not who was identified in the case as received, officers, properly searching have been Salinas as evi- had married and taken actually dence of will what occurred name Swessel. I refer to her as Atkin- search or what Milwaukee routines were son. *9 any time. or members of the practice or two more cavi- Reiter could observe so officer the buttocks of Department to touch a search had never ties. She observed fingers use their to persons to there had been searched in which prisoner a female vaginas of searched the rectums probe had body cavities. She probing of the a persons. spreading Atkinson observed officer females, half dozen about a cheeks of Knowledge and Intent E. Defendant’s At- times, times officer and also at saw permits a find- Knowledge. The record person spread have the searched kinson 24, 1974, defendant ing January that as of decid- Reiter her cheeks herself. Officer bodily Academy knew Manual that to her not use hands ed that she would published had in about searches been cheeks of the buttocks spread the degree specificity with whatever searched. language, and that vagueness marked its that: She Boyle Officer Janet testified being defined the Manual Depart- policewoman been a had permit does not implemented. record February 2, 1968 to ment from about women and chil- that he knew that finding January 1978. As of about into being dren were taken told her officer whenever fellow case and then circumstances of to believe that probable that he had cause manner, or that he knew searched in sub- person had a controlled an arrested bodily persons lawfully that searches for a her and asked person stance on custody, personnel were us- Department search, practice to ask officer Boyle’s fingers probe vagi- to ing their rectums clothing, her person strip, to permit finding does nas. It to and sometimes ask the searched using knew officer Atkinson was separate bend over and to the cheeks of the buttocks spread hands to cheeks buttocks, Boyle so that officer persons. searching lawfully arrested part body. visually examine that Judge to significance may attach Whatever any- never known of Boyle Officer 9, 1974, in Reynolds’ of December decision body cavity that conducts searches. She knowledge and Guy, in terms of defendant’s case and she had heard about mind, was not entered state of that decision con- Atkinson had was aware officer ten after the until more than months Sali- searches. cavity ducted There is no evidence that ñas searches. 24,1974 the prior January to defendant find, to as it The district court free knowledge allegations even January to did, years prior several body. of her Guy concerning the 1970 search 24,1974 24,1974, as of it was a . custom and within the beyond the There is no evidence Intent some bodily searches of arrested conduct itself that the defendant intended language and, involving in cases particularly women guidelines Academy Manual to be substances, possession of controlled no evidence that he intend vague. There is clothing, remove their quire such females to custom or con promote ed over, spread bend themselves in the circumstances ducting searches permit visual cheeks their buttocks and in the manner in which vaginal area of the rectal and observation There is no evi searches were conducted. The district court was by the searcher. message, that he intended to send dence also, find, it was the custom free manner, Department’s officer, At- Alice of one bodily to conduct were authorized kinson, own hands to gloved to use her in the manner in which the Salinas cheeks of the buttocks The district searches were conducted. permit visual observa- searched females to following specially response noted vaginal area. of the rectal and tion as witness trial: defendant feel, therefore, you respon- ... Do Q. clearly erroneous for the conduct find, did, general good for the lack as it that it was a custom sible court to *10 person Carolyn because of the that a “arrest” of his wife and the chil- your control did not follow the very questionable. under dren is the least your rules of ... department? the assuming legality Even of the deci- Carolyn to take the sion Salinas and chil- No, sir, A. don’t feel I’m re- I that custody, into dren the search cannot sponsible. gave I was not there. I no according fact, justified. direction. It wasn’t In the searches under the department policies rules of the consideration my here shock conscience. therefore, I don’t department; the feel wife, Because was the and Rob- particular responsible that I’m for that ert, Melody, Rodney were and Russell conduct. dealer, suspected drug they children subjected were to degrading and humili- The court’s observation was that this denial ating searches. The searches were far only of responsibility emphasized that message thorough more get justified by officers of the line that a than could be Salinas-type acceptable. search is Of safety precautions. conceivable course, covertly if the defendant fact unquestionably looking conveyed message, Depart- such a and if drugs. so, personnel knew done his assumption The district court’s subsequent of responsibility might denial warrantless arrest confinement of Car- signal message well covert and the olyn children were lawful is an mained in force. But denial of respon- important extremely assumption. First, it sibility not independently probative well established that considerably there is proposition denied is true. greater power constitutional persons search the bodies in custody than IV. This Legal Court’s Conclusions the bodies of in custody. See might view been this LaFave, generally Search and Seizure plaintiffs as a case in which the assert that 5.2, (1978 Supp.1982). Second, 5.3 & §§ they unlawfully place arrested at the here, only circumstances realistic where the stopped, automobile was unlaw- explanation for legality of the arrests fully transported police building, confinement, they if were legal, is that time unlawfully confined at the probable there was cause believe that building. complaint includes mention Carolyn and each the children inwas illegal improper imprisonment possession of a controlled substance. When context, an absence of In arrest. such a reason, a lawfully arrested for this specific in which manner course, post-arrest searches the body might were conducted have been viewed as to discover the controlled substances are aggravations the unlawful arrest and generally permissible. We Id. share in the imprisonment. district court’s comment that the arrests However, the and confinement were at the very district court noted least plaintiffs not alleging questionable.5 However, “are it is not the de- illegal,” arrest was but rather that the personally fendant who arrested illegal. searches were The district court the four children and it is not he who (517 F.Supp. 1275): commented then confined them. Plaintiffs made no [Although question prove any is no effort in these respects valid, arrest of Robert Salinas was facts necessary liability to establish on the courtesy, None of witnesses involved in the arrest their home as a testified. The rejection and confinement admitted that there had been of that account the district court involuntary any explanation an arrest or confinement. Because has resulted an absence justification attempted the automobile was to be searched and the of an arrest and con- cold, they transported Carolyn weather was finement. police building and the children and then *11 clothing, required the and who others: examined for the acts of the defendant part of deeply at the Carolyn to bend forward arrests policy a on e.g., promulgation the circumstances; exception part the possible waist.6 With the existence under similar (d), relating by to a doc- J(3)(b) or search subject; that a or on custom warrant, a these obtaining tor and to performance the to train in failure con- part evi- on of the searcher were any acts the In the absence of such function. Academy to the Manual. The na- dence, sistent with presence in the effort possession was of a con- the defend- ture of the crime liability upon impose personal existed, search, cause it is trolled substance. Probable the ant for the manner of chief to believe that the con- constitutionality presuming, we are to evaluate the necessary on Carolyn’s person. trolled was preceded substance search as if it had been was at an was When the substance not found if valid arrest and as the confinement search, was Therefore, stage proba- it there early however anomalous lawful. Russell, was example, ble cause to believe the substance baby may appear confined, body. or her When her it hidden on within lawfully arrested and us, clothing had removed and searched as it was for the district been necessary for court, the the was not without success and substance to assume that the arrests body, the of her there each of observed on exterior confinement probable to believe it hidden four children were lawful. cause cavity. necessary force was to body in a No searches, the respect to the With way to a as to compel her bend such certain rulings setting effect of our aside expose, degree, in some her rectum court is to of fact the district vagina. any specific, eliminate consideration of such, may perhaps, identifiable plaintiffs argue As instance — Jean Betty found, the search of Academy occurred in in the policy embodied Department employ- ambiguous 1970—in which in several re- Guy in Manual is indeed The effect is ees conducted search. not at all clear whether “first” spects. It is earli- first” means also to eliminate consideration in “obtain a search warrant disrobing, only or to requiring prior er searches of children. Even asserted to prior person to bend for- requiring the disrobed vagueness embodied ward, prior only to to use of searcher’s thought Manual cannot be Academy buttocks, only prior spread of a or hands development have caused the custom finger or an instrument evidence that to the insertion of a practice absence of vagina. it is Similarly devel- into the rectum or such a custom or did fact requirement to bend on find- unclear whether the op. rulings The effect of our generalized the visual examination at ings to confine the evidence over and only by a doctor. stage performed of a of two or more can be custom and following (1) elements: re- The more reasonable construction officers to the disrobe; (2) (“search body cavities should language quiring person sanitary under condi- clothing; requiring a doctor and searching (3) waist; tions”) only it ultimate person deeply applies to bend at the is that forward hands are the searcher’s (4) stage his or at which requiring use applied body. but- to the spread her the cheeks hands tocks. event, the policy construe we In defendant, against the strictly as turn, then, liability
We
statement
promulgate
responsibility
the whose
the defendant chief
the acts of
construed, the policy
statement.
So
clear
Department employee
unidentified
who
Department personnel
quired Carolyn
clothing,
permitted
who statement
to remove
quired
cheeks of
buttocks.
no
6. There is
evidence that
was re-
free,
CUMMINGS,
probable
themselves
with
Judge,
consider
Chief
concurring.
cause to believe that
controlled substance
only
I concur
assumption
person’s
vagina,
hidden
rectum
was probable
cause or at
least
rea
obtaining
without first
a warrant and with-
suspicion
sonable
to believe that the Salinas
obtaining
out
of a doctor under
services
family was concealing contraband on their
conditions, to
sanitary
require
person,
Wolfish,
persons.
Bell v.
441 U.S.
*12
force,
without
the use of
to bend forward
595,
578,
1903,
1894,
99 S.Ct.
60
expose
at
the waist so as to
deeply
(concurring opinion
L.Ed.2d 447
of Justice
inspection.
vagina
rectum
visual
As Powell, dissenting opinions of
Mar
Justices
found,
properly
such a
Stevens,
shall and
with Justice Brennan
custom or
had in
developed
fact
joining
dissent).1
in Justice Stevens’
Since
actually
within the
and it was
the trial judge assumed the
legality
applied
plaintiff
(517
F.Supp.
1275),
arrests
at
Salinas.
must have
assumed
was probable
cause
be
question
ultimate
is whether
heroin,2
lieve the four
possessed
arrestees
steps
limited
these
is con
Judge Doyle points
(pp. 1083-1084,
out
stitutionally permissible
when the
supra). Otherwise the search of the four
is
custody following
searched
a lawful would have constituted a constitutional tort
1983,
under 42
compensable
arrest
when
U.S.C.
probable
there is
cause to
§
Sprecher,
Judges
Bauer
I held
in Doe v.
believe that a controlled substance is hidden
Renfrow,
91,
(7th
631 F.2d
Cir.1980)
92-93
person’s body.
or within the
We think
denied,
(per curiam); certiorari
451 U.S.
the answer is clear. Such limited measures
1022,
3015,
395;
101 S.Ct.
69 L.Ed.2d
see
in these
circumstances are valid under
Park,
also
Village
Iskander v.
of Forest
690
incorporated
fourth amendment as it
is
126,
(7th Cir.1982);
F.2d
129-130
Tikalsky
within the due
process clause
the four
City
Chicago,
v.
limited measures degrading are indeed
humiliating, found, as the district court severity do not those in approach present, example,
trusions Rochin v.
California, 96 U.S. S.Ct. (1952).
L.Ed. 183 judgment of cross-appeal
versed and vacated. The
plaintiffs-appellees dismissed. Salinas, opinion familias, majority upheld pater While in Wolfish 2. Robert was the cavity prisoners detainees to be first arrested. This was done under a cause, probable implication arresting without federal bench warrant because the necessary probable “acting tip cause would be the case officers were on a that he was 558-566, transporting See 441 mere arrestees. U.S. heroin Wisconsin from Texas” him, occupied by S.Ct. at 1884-1888. in the auto his wife and four F.Supp. children. 517 at 1274.