Rhonda Brent v. United States , 247 F.3d 1294 ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 19, 2001
No. 99-12169 THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 94-00646-CV-WDF
RHONDA BRENT,
Plaintiff-Appellee-
Cross-Appellant,
versus
ODESTA ASHLEY, CARL PIETRI, et al.
Defendants-Appellants-
Cross-Appellees.
________________________
Appeals from the United States District Court for the
Southern District of Florida
_________________________
(April 19, 2001)
Before BARKETT and WILSON, Circuit Judges, and GEORGE*, District Judge.
*
Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by
designation.
BARKETT, Circuit Judge:
In this interlocutory appeal, Prospero Ellis and Seymour Schor, both United
States Customs Service inspectors, appeal the denial of their motion for summary
judgment based on qualified immunity in an action filed by Rhonda Brent alleging
violation of her Fourth Amendment rights during a strip search and x-ray examination.
Brent cross-appeals the district court’s grant of summary judgment on the basis of
qualified immunity to Ellis and Schor’s subordinates, Odesta Ashley, Carl Pietri,
Francine Williams, Ricky Grim, Kathryn Dellane, and Lee Sanchez-Blair. We affirm.
FACTS
In reviewing summary judgment, we are bound to consider all of the evidence
and the inferences drawn in the light most favorable to the non-moving party.1 Carter
v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). On July 20, 1991, Rhonda
1
We note that the defendants contest the factual predicate of Brent’s case in numerous
ways. For example, in their affidavits filed six years after the incident and attached to their
motion for summary judgment, Schor and Ellis state that they based their decision to perform the
strip search and x-ray examination of Brent on the following facts and observations: (1) Brent
and Kehinde Elbute, a passenger on Brent’s flight, fit a smuggling profile of African-American
women on the same flight as Nigerian men; (2) Brent arrived from a known source country; (3)
she showed disapproval of the treatment Elbute was receiving from law enforcement officials;
(4) her ticket had been purchased by a friend with a credit card from the same travel agency
where Elbute’s was purchased; (5) she, like Elbute, was going to Houston; (6) she wore
inexpensive clothes; and (7) she was nervous and became agitated when confronted. Further, the
defendants also claim that Brent consented to the searches. However, because we are reviewing
a summary judgment, we must resolve all factual disputes in favor of Brent. See, e.g., Hudson v.
Hall, 231 F.3d 1289, 1297 (11th Cir. 2000); Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir.
2000).
2
Brent, a United States citizen, was returning home to Houston, Texas, aboard Alitalia
Flight 618 from a vacation in Nigeria. During the Rome to Miami leg of her return
flight, Brent met Kehinde Elbute, a black Nigerian man who was also en route to
Houston. Brent and Elbute were the only black persons on the flight. The flight
arrived at Miami International Airport and the passengers disembarked from the plane.
As Brent entered the baggage claim area at the airport, she noticed Customs Agent
Ricky Grim and his inspection dog with Elbute. Brent stopped briefly, observed Grim
searching Elbute and his luggage, and shook her head in disapproval. Based on this
look and gesture, Inspector Seymour Schor instructed Inspector Carl Pietri to detain
Brent and escort her to the examination area where Elbute had been taken. Pietri
seized Brent’s passport and other documents, isolated her from other passengers and
took her to the examination area for interrogation. Brent protested Pietri’s actions,
alleging that she was being singled out because she was black.
Schor questioned both Brent and Elbute about the nature of their trips and
personally conducted a thorough search of both of their luggage, in which he took
every item out of their bags and examined each item separately and carefully. He
found no narcotics, nor did he find any items commonly associated with drug couriers.
Brent continued to protest the search stating that she was aware of her rights and that
she was being treated this way because she was black. Despite finding no objective
3
evidence that she was a drug courier, Schor continued to detain Brent for further
questioning.
Shortly thereafter, Schor was joined by Supervisor Inspector Prospero Ellis.
Ellis re-examined Brent’s travel documents, clothing and luggage, and questioned her.
Both Ellis and Schor then decided to conduct a full body pat-down and strip search.
The report form filed by the agents at the time of the search indicated that the reasons
for conducting the search were Brent’s nervousness and her arrival from a source
country.2 Female customs agents Odesta Ashley, Lee Sanchez-Blair and Kathryn
Dellane were called in to assist.
The body pat-down and strip search, conducted by Blair and witnessed by
Ashley and Dellane, consisted of touching Brent’s crotch area, ordering her to pull
down her clothes, removing and examining her sanitary napkin, squeezing her
abdomen from the pubis to thorax, and monitoring her responsive reactions. The
search revealed none of the typical indicators of internal drug smuggling. There was
no rigid or distended abdomen, no girdle to hold up the abdomen, no synthetic
lubricants, and no contraband could be seen in her body cavities. After the strip
2
Another form filed after the search indicated that the reasons for conducting the search
were Brent’s nervousness, her arrival from a source country, and the incorrect observation that
her ticket was purchased for cash. Because this form conflicts with other forms filed after the
strip search, and because it is undisputed that Brent’s ticket was purchased with a credit card, we
must disregard this additional factor when looking at the evidence in the light most favorable to
Brent. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
4
search, Brent asked if she could use the bathroom. She was allowed to use the
bathroom, but was watched closely by the female agents and told not to flush the
toilet. After she had gone to the bathroom, the agents examined Brent’s urine for
signs of contraband. None were found. At some point during her detention, Brent’s
name was entered into the Treasury Enforcement Computer Systems to search for
frequent travels or past arrests. The inquiry returned nothing suspicious.
Although the pat-down, strip search, and electronic record search revealed
nothing, Ellis and Schor nonetheless decided that an x-ray and pelvic examination at
the hospital should be performed. The search report form filed the day after the x-ray
listed the reasons for conducting the examination as Brent’s nervousness and her
arrival from a source country. Dellane handcuffed Brent and transported her to
Jackson Memorial Hospital. Prior to transport, Brent was presented with a consent
form and told that if she refused to sign it she could be held for 35 days or indefinitely
until a judge ordered the x-ray. She requested to speak with an attorney and to call
home. Both requests were denied. She signed the consent form and waived her
Miranda rights after being told she had no choice. Upon arrival at the prison ward of
the hospital, Brent was told to sign another consent form. Inspector Francine
Williams escorted Brent to the x-ray room and remained with Brent throughout the
examination. The examination revealed a complete absence of drugs. Dellane drove
5
Brent back to the airport and, ten hours after she was first detained, made
arrangements for Brent to return home to Houston. Brent filed this suit against the
United States under the Federal Tort Claims Act (“FTCA”) and against nine named
customs employees, alleging the commission of common law torts and constitutional
violations pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 338 (1971). The district court dismissed with prejudice Brent’s
FTCA claim for failure to file the action within the statutory time limits. The
individual defendants then moved for summary judgment on Brent’s Bivens claims
based on qualified immunity. The district court granted the motion with regard to
Ashley, Pietri, Williams, Grim, Sanchez, Dellane, and Sanchez-Blair, and denied the
motion as to Ellis and Schor. This appeal followed.3
We review de novo a district court’s ruling on summary judgment, applying the
same legal standards as the district court. See Whatley v. CNA Ins. Cos., 189 F.3d
1310, 1313 (11th Cir. 1999). Summary judgment is appropriate only when the
evidence before the court demonstrates that “there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.
3
The district court’s rejection of a qualified immunity defense is a “final decision under
the collateral order doctrine over which this court has jurisdiction pursuant to 28 U.S.C. § 1291.”
Harris v. Board of Educ. of the City of Atlanta, 105 F.3d 591, 594 (11th Cir. 1997). Further, the
district court certified its grant of summary judgment based on qualified immunity to Ashley,
Pietri, Williams, Grim, Dellane, and Sanchez-Blair, pursuant to Fed. R. Civ. P. 54(b). Thus, we
have jurisdiction to hear this interlocutory appeal.
6
56(c).
DISCUSSION
“A court evaluating a claim of qualified immunity must first determine whether
the plaintiff has alleged the deprivation of an actual constitutional right at all, and if
so, proceed to determine whether that right was clearly established at the time of the
alleged violation.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotations
omitted); see also McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir 1999) (“In
reviewing the district court’s [denial] of summary judgment, we must ‘first determine
whether the plaintiff has alleged the deprivation of an actual constitutional right at all,
and if so, proceed to determine whether that right was clearly established at the time
of the alleged violation.’”) (quoting Conn v. Gabbert, 526 U.S. 286 (1999)).4 Thus,
we address initially the question of whether Ellis and Schor’s actions violated Brent’s
constitutional rights.
1. Was there a violation of Brent’s Fourth Amendment rights?
Rather than viewing the initial stop, strip search and x-ray examination of Brent
as a single incident, the facts of this case compel that each progressive stage of the
search be viewed as a discrete occurrence. Accordingly, in determining whether Brent
4
As the Supreme Court explained in Wilson, “[d]eciding the constitutional question
before addressing the qualified immunity question . . . promotes clarity in the legal standards for
official conduct, to the benefit of both the officers and the general public.” 526 U.S. at 609.
7
has met her burden to demonstrate the existence of a constitutional violation, we
examine the constitutionality of the initial stop, the strip search and the x-ray
examination separately.
a. Was the initial stop constitutional under the Fourth Amendment?
During the initial stop of Brent, the customs agents isolated Brent from the
other passengers, asked her questions about the nature of her trip, and searched her
luggage. The decision to stop and search Brent was based upon the fact that she shook
her head in disapproval upon seeing the way customs agents were treating a co-
passenger. Brent argues that a simple expression of disapproval cannot provide
reasonable suspicion sufficient to justify the stop and search and thus the initial stop
is constitutionally infirm.
We agree with Brent that her simple disapproving head movement is
insufficient to raise reasonable suspicion; however, the law is clear that “[r]outine
[border] searches of the persons and effects of entrants are not subject to any
requirement of reasonable suspicion, probable cause, or warrant . . .” United States
v. Montoya de Hernandez, 473 U.S. 531, 538 (1985); see United States v. Vega-
Barvo, 729 F.2d 1341, 1345 (11th Cir. 1984). Because the initial stop did not
constitute more than a routine border search, Brent has failed to demonstrate that the
initial stop violated her Fourth Amendment rights.
8
b. Was the strip search constitutional under the Fourth Amendment?
The Supreme Court has held that “detention of a traveler at the border, beyond
the scope of routine customs search and inspection, is justified at its inception if
customs agents considering all the facts surrounding the traveler and her trip,
reasonably suspect that the traveler is smuggling contraband . . .” Montoya de
Hernandez, 473 U.S. at 541. Reasonable suspicion is “more than an inchoate and
unparticularized suspicion or hunch,” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotations omitted), and requires that officials have a “‘particularized and
objective basis for suspecting the particular person’ of . . . smuggling.” Montoya de
Hernandez, 473 U.S. at 541-42 (quoting United States v. Cortez, 449 U.S. 411, 417
(1981)). “In most of these cases, the suspect was initially approached because [s]he
fit a drug courier profile. It is not the profile, however, but the factors which make up
the profile which are crucial to whether or not there is a reasonable suspicion. If the
profile is overly general, it carries little weight in this determination.” Vega-Barvo,
729 F.2d at 1349. Accordingly,
[r]easonable suspicion to justify a strip search can only be
met by a showing of articulable facts which are
particularized as to the place to be searched. . . .
Id. (internal citations omitted) (emphasis added). Moreover, as a search progresses
from a stop, to a pat-down search, to a strip search, an agent must reevaluate whether
9
reasonable suspicion to justify the next level of intrusion exists in light of the
information gained during the encounter. See, e.g., Vega-Barvo, 729 F.2d at 1349.
Under these Supreme Court and Eleventh Circuit standards, the strip search of Brent,
on the basis of the generalized and unparticularized reasons given in either the
contemporaneously filed search report forms or in the affidavits filed six years later,5
constitutes a Fourth Amendment violation.
This Court has previously applied these standards6 in an analogous setting and
found that a strip search violated the Fourth Amendment. United States v. Afanador,
567 F.2d 1325 (5th Cir. 1978).7 In Afanador, customs officials, acting on an
informer’s tip, stopped two airline attendants arriving from Columbia, a known source
country, searched their luggage and, despite finding no contraband, proceeded to strip
5
Although their later affidavits essentially assert the same basic reasons for the search,
the affidavits frame these reasons slightly differently; to wit: (1) Brent fit a smuggling profile;
(2) Brent arrived from a known source country; (3) she showed disapproval of the treatment
Elbute was receiving; (4) her ticket had been purchased by a friend with a credit card from the
same travel agency where Elbute’s was purchased; (5) she, like Elbute, was going to Houston;
(6) she wore inexpensive clothes; and (7) she was nervous and became agitated when
confronted.
6
Although Afanador preceded Montoya de Hernandez by six years, Afandor’s holding is
not affected by the Supreme Court case. In Montoya de Hernandez, the Supreme Court resolved
a circuit split regarding the degree of suspicion -- reasonable suspicion, probable cause, or
something in between -- necessary to justify an invasive border search. The Supreme Court,
agreeing with the reasoning in Afanador, held that a invasive border search requires a showing of
reasonable suspicion. Montoya de Hernandez, 473 U.S. at 541.
7
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.
10
search them. Id. at 1327. The informer’s tip included the name of one of the airline
attendants, but was silent as to whether any other attendants were involved. The
government argued that the informer’s tip provided reasonable suspicion to justify the
strip search of the attendant named in the tip, and the fact that the attendant not named
in the tip fit a smuggling profile provided reasonable suspicion to strip search her.
The court rejected this argument stating that “‘a generalized suspicion of criminal
activity such as that which is fostered, for example, when one closely resembles a
‘smuggling profile’ will not normally in itself permit a reasonable conclusion that a
strip search should occur.’” Id. The court further stated that while a smuggling
profile “may have its utility, . . . we cannot countenance its use to perform plastic
surgery disfiguring the Fourth Amendment.” Id. at 1330 n.6. The Former Fifth
Circuit then held that although the tip provided reasonable suspicion to strip search
the named attendant, “the fruitless search of [the unnamed attendant’s] luggage and
failure to elicit suspicious information on questioning, would, in these circumstances
preclude justification for a strip search.” Id. at 1330.
Here, similar to Afanador, Ellis and Schor based their decision to strip search
Brent upon the fact that Brent fit a general profile of arrival from a source country,
and she was nervous. However, in making this determination, they, like the agents in
Afanador, disregarded the fact that: (1) a non-intrusive search of Brent’s person and
11
her luggage revealed nothing to support the suspicion that she was smuggling
narcotics; (2) Brent presented verifiable residence and employment information; and
(3) a check of Brent’s name in the Treasury Enforcement Computer System revealed
nothing suspicious. Under Afanador, upon these facts, the strip search of Brent was
unconstitutional.
More recent cases further compel this conclusion. In Reid v. Georgia, 448 U.S.
438 (1980) (per curiam), a DEA agent stopped a traveler in the Atlanta Airport
because his characteristics and actions fit the “drug courier profile”: (1) the defendant
arrived from Fort Lauderdale, a city the agent knew to be a principal source of
cocaine; (2) he arrived early in the morning, when law enforcement activity is
diminished; (3) he and his companion appeared to be concealing the fact that the two
were traveling together; and (4) he and his companion had no luggage except for their
shoulder bags. Id. at 440-41. The Supreme Court concluded that “the agent could not,
as a matter of law, have reasonably suspected the petitioner of criminal activity on the
basis of these observed circumstances.” Id. at 441. The only fact that related to the
individuals’ conduct, the Court found, was that the defendant preceded his companion
and occasionally looked backward at him. The Court found that the other
circumstances, including arrival from a source location, describe a large number of
“presumably innocent travelers, who would be subject to virtually random seizures
12
were the Court to conclude that as little foundation as there was in this case could
justify a seizure.” Id.; see also United States v. Grant, 920 F.2d 376, 386 (6th Cir.
1991) (holding that arrival from a source location does not provide reasonable
suspicion because “[o]ur experience with DEA agent testimony in other cases makes
us wonder whether there exists any city in the country which a DEA agent will not
characterize as either a major narcotics distribution center or a city through which
drug couriers pass on their way to a major narcotics distribution center”).
In this case, the facts known to Ellis and Schor were far less suspicious than the
ones found insufficient as a matter of law by the Supreme Court in Reid. Even in
combination, the articulated characteristics here could be ascribed generally to a great
number of innocent travelers. Indeed, the only fact that relates to Brent’s conduct is
that she was nervous. However, this general observation of Brent’s nervousness,
standing alone, cannot provide “reasonable suspicion” to justify the strip search.8 See
United States v. Tapia, 912 F.2d 1367, 1371 (11th Cir. 1990) (holding that no
reasonable suspicion existed to support detention when suspect appeared visibly
8
We note, as did the district court, that courts should be cautious in deferring to
subjective determinations by even trained inspectors. In this case, Schor stated that he suspected
Brent was a drug smuggler because she appeared nervous and agitated when questioned. In a
previous case, however, Schor testified that he suspected an individual was a drug smuggler
because the individual was “fairly deadpan,” expressionless, without visible signs of agitation
and did not protest being singled out for questioning. See United States v. Rivera, 926 F.2d
1564, 1568 (11th Cir. 1991). If either a nervous or calm reaction to questioning can, by itself,
support a finding of reasonable suspicion, an inspector could justify a search of anyone.
13
nervous during confrontation with officers, and had few pieces of luggage); accord
United States v. White, 890 F.2d 1413, 1417 (8th Cir. 1989) (finding insufficient
evidence to support reasonable suspicion for stop where defendant bought airline
ticket with cash, arrived on flight known to be used by narcotics traffickers, and acted
nervous and suspicious in the airport); Grant, 920 F.2d at 386 (“[n]ervousness is
entirely consistent with innocent behavior, especially at an airport where a traveler
may be anticipating a long-awaited rendezvous with friends or family”) (citing United
States v. Andrews, 600 F.2d 563, 566 (6th Cir. 1979)); see also United States v.
Barron-Cabrera, 119 F.3d 1454, 1461 (10th Cir. 1997) (holding that “‘[w]hile a
person’s nervous behavior may be relevant, we are wary of the objective suspicion
supplied by generic claims that a Defendant was nervous or exhibited nervous
behavior after being confronted by law enforcement officials. . . .’”) (quoting United
States v. Peters, 10 F.3d 1517, 1521 (10th Cir. 1993)); United States v. Wood, 106
F.3d 942, 948 (10th Cir. 1997) (“nervousness is of limited significance in determining
reasonable suspicion and that the government’s repetitive reliance on . . . nervousness
. . . as a basis for reasonable suspicion . . . ‘must be treated with caution.’”) (quoting
United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994)); United States v. Black,
675 F.2d 129, 136-37 (7th Cir. 1982) (holding that, although the totality of
circumstances supported reasonable suspicion, it was not enough merely that the
14
passenger had arrived from Fort Lauderdale, was the first off the plane, deplaned
speedily and in a disoriented state, and appeared nervous). The initial stop and
questioning of Brent, with the attendant search of her luggage, failed to produce
particularized and objective evidence that would raise reasonable suspicion that she
was a drug courier. Accordingly, we conclude that the strip search of Brent violated
the Fourth Amendment.
c. Was the x-ray examination constitutional under the Fourth Amendment?
In United States v. Pino, 729 F.2d 1357, 1359 (11th Cir. 1984), we recognized
that the “the amount of [reasonable] suspicion needed for an x-ray [is] . . . the same
amount needed for a strip search.” (citing Vega-Barvo, 729 F.2d at 1345). The agents
listed the same reasons for conducting the x-ray examination as they did for
conducting the strip search. As discussed above, these types of general observations,
without more, can never give rise to reasonable suspicion sufficient to justify an
intrusive search such as an x-ray examination. Moreover, the unconstitutionality of
the x-ray examination is more apparent than the strip search, because at the time of the
x-ray, in addition to the significant exculpatory factors of which they had knowledge
prior to strip search, Ellis and Schor were also aware that Brent’s urine had no traces
of contraband and that the strip search revealed nothing to suggest that Brent was
carrying drugs internally. Accordingly, we conclude that the x-ray examination of
15
Brent also violated the Fourth Amendment.
2. Are Ellis and Schor entitled to qualified immunity?
Having determined that the strip search and x-ray violated the Fourth
Amendment, we turn to examine whether Ellis and Schor can be held personally liable
for their actions.9 Our cases hold that a law enforcement officer who conducts an
unconstitutional search based upon a reasonable but mistaken conclusion that
reasonable suspicion exists is entitled to qualified immunity. Jackson, 206 F.3d at
1165-66. Thus, “[w]hen an officer asserts qualified immunity, the issue is not whether
reasonable suspicion existed in fact, but whether the officer has ‘arguable’ reasonable
suspicion.” Id.; see also Williamson v. Mills, 65 F.3d 155, 157 (11th Cir. 1995);
Swint v. The City of Wadley, Alabama, 51 F.3d 988, 996 (11th Cir. 1995); Post v.
City of Fort Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993). In determining whether
Ellis and Schor had “arguable reasonable suspicion” to justify the strip search and x-
ray examination, we analyze whether “a reasonable officer could have believed that
the search[es] comported with the Fourth Amendment.” Anderson, 483 U.S. at 637.
This inquiry ensures that law enforcement officials “‘reasonably can anticipate when
their conduct may give rise to liability.’” United States v. Lanier, 520 U.S. 259, 271
9
Because we have concluded that the initial stop and search did not violate the Fourth
Amendment, there is no need to consider qualified immunity as to the initial stop.
16
(1997) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).10 With these standards
in mind, we now consider whether Ellis and Schor had “arguable reasonable
suspicion” to support either the strip search or x-ray examination.
a. Was there “arguable reasonable suspicion” for the strip search?
In 1978, well before the strip search of Brent, our precedent clearly established
that even if Brent fit a drug courier profile, the “fruitless search of [her] luggage and
the failure to elicit suspicious information [from her] on questioning would . . .
preclude . . . justification for a strip search.” Afanador, 567 F.2d at 1330. Moreover,
at the time of the incident, Supreme Court precedent had made clear that a law
enforcement official must have “reasonable suspicion” to justify any stop at the border
beyond a routine non-intrusive search. Montoya de Hernandez, 473 U.S. at 541. The
Supreme Court had held that reasonable suspicion must be based upon “more than an
inchoate and unparticularized suspicion or hunch,” Sokolow, 490 U.S. at 7(internal
quotations omitted), but rather, requires “particularized and objective” facts. Montoya
de Hernandez, 473 U.S. at 541; see also Vega-Barvo, 729 F.2d at 1349; Pino, 729
10
In Lanier, the Supreme Court reenforced the “fair warning” standard and held that
“general statements of the law are not inherently incapable of giving fair and clear warning . . . a
general constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question, even though ‘the very action in question has [not] previously
been held unlawful.’” 520 U.S. at 271 (quoting Anderson, 483 U.S. at 640). See also Priester v.
City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (holding that official not entitled to
qualified immunity when “conduct lies so obviously at the very core of what the Fourth
Amendment prohibits”).
17
F.2d at 1359.
Moreover, the Eleventh Circuit, as well as several other circuits, had clearly
defined the degree of reasonable suspicion standard required to justify a strip search
at a border, holding that “reasonable suspicion to justify a strip search can only be met
by a showing of articulable facts which are particularized as to the place to be
searched.” Vega-Barvo, 729 F.2d at 1349 (emphasis added); see also United States
v. Yakubu, 936 F.2d 936 (7th Cir. 1991); United States v. Oyekan, 786 F.2d 832 (8th
Cir. 1986); United States v. Ogberaha, 771 F.2d 655 (2d Cir. 1985). This standard
unambiguously established that the facts an officer relies upon in justifying a strip
search must be (1) particularized to the place to be searched, and (2) sufficient to raise
reasonable suspicion. Vega-Barvo, 729 F.2d at 1349. Here, the two factors Ellis and
Schor relied upon in justifying the search -- Brent’s arrival from a source location and
her nervousness -- were not particularized to the place to be searched and had been
expressly rejected by the Supreme Court and the Eleventh Circuit as factors that,
standing alone, give rise to reasonable suspicion.
Indeed, arrival from a source location and nervousness are paradigmatic
examples of the non-particularized, overly general profile which this Court made clear
can never support a finding of reasonable suspicion to justify a strip search. See
Vega-Barvo, 729 F.2d at 1349. Moreover, at the time of the search, Supreme Court
18
and circuit precedent expressly rejected the proposition that a general courier profile,
without more, provides reasonable suspicion. See Reid, 448 U.S. at 441; Afanador,
567 F.2d at 1330; see also, Tapia, 912 F.2d at 1371; Grant, 920 F.2d at 386; White,
890 F.2d at 1417; Black, 675 F.2d at 136-37. In Reid, the Supreme Court considered
and rejected the argument that arrival from a source location could ever, by itself,
provide reasonable suspicion. 448 U.S. at 441. Similarly, in Tapia, the Eleventh
Circuit considered and rejected the argument that being nervous when confronted by
a law enforcement official provides reasonable suspicion. 912 F.2d at 1371 (“being
a Mexican, having few pieces of luggage, being visibly nervous or shaken during a
confrontation with a [law enforcement official], or traveling on the interstate with [out
of state] licence plates do not provide a minimal, particularized basis for a conclusion
of reasonable suspicion”); see also White, 890 F.2d at 1417; Grant, 920 F.2d at 386;
Barron-Cabrera, 119 F.3d at 1461; Wood, 106 F.3d at 948; Black, 675 F.2d at 136-37.
Accordingly, the facts upon which Ellis and Schor based their decision to
search Brent are not only unparticualrized, but also were explicitly rejected as grounds
for reasonable suspicion by the Supreme Court and the Eleventh Circuit. Reid, 448
U.S. at 441; Tapia, 912 F.2d at 1371. Moreover, as noted earlier, our precedent had
established that even if Brent fit a courier profile, the “fruitless search of [her] luggage
19
and the failure to elicit suspicious information [from her] on questioning would . . .
preclude . . . justification for a strip search.” Afanador, 567 F.2d at 1330. Based upon
the foregoing, we conclude that a reasonable customs agent at the time of the incident
would have known that a strip search under the facts of this case was a violation of
Brent’s Fourth Amendment rights. Thus, Ellis and Schor did not have “arguable
reasonable suspicion” to support the strip search and are not entitled to qualified
immunity from liability arising from their alleged unconstitutional conduct.
b. Was there “arguable reasonable suspicion” for the x-ray examination?
As noted above, by the time of the incident the Eleventh Circuit had
established that “the amount of [reasonable] suspicion needed for an x-ray [is] . . . the
same amount needed for a strip search.” Pino, 729 F.2d at 1359. Here, as with the
strip search, the only undisputed reasons for the x-ray examination are Brent’s
nervousness and her arrival from a source location. For the reasons stated above,
these factors not only fail to raise reasonable suspicion to justify the x-ray
examination, but also fail to raise even “arguable reasonable suspicion.” Based on the
foregoing, we conclude that because a reasonable customs agent would have
understood that the x-ray examination, based only upon an observation of nervousness
and a general profile, violated Brent’s constitutional rights, there was not “arguable
reasonable suspicion” to support the x-ray examination, and therefore Ellis and Schor
20
are not protected by qualified immunity from civil liability arising from the x-ray
examination.11
3. Are Ellis and Schor’s subordinates protected by qualified immunity?
The district court determined that only Schor and Ellis made decisions to
conduct the intrusive searches of Brent, and that Ashley, Pietri, Williams, Grim,
Dellane, and Sanchez-Blair had no discretionary authority and no reason to suspect
that Brent’s constitutional rights were being violated. Accordingly, the district court
concluded that Ashley, Pietri, Williams, Grim, Dellane, and Sanchez-Blair acted
reasonably in following Ellis and Schor’s orders and that qualified immunity shielded
them from civil liability.
On appeal, Brent argues that whether a government agent is acting in a
supervisory role is not determinative of Bivens liability and that following orders does
not immunize government agents from civil rights liability. While we agree with
Brent’s general summary of the law, we do not agree that the district court erred in
granting summary judgment in favor of Ashley, Pietri, Williams, Grim, Dellane, and
Sanchez-Blair.
11
Ellis and Schor also argue that summary judgment is appropriate in this case for a
reason not raised in the district court. Because the issue was not raised in the district court, we
decline to review it here. See Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir. 1994) (stating that
“‘appellate courts generally will not consider an issue or theory that was not raised in the district
court.’”) (quoting FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993)).
21
In Hartfield v. LeMacks, 50 F.3d 950 (11th Cir. 1995), we held that, although
a deputy sheriff who failed to make a reasonable effort to identify the proper residence
to be searched was not entitled to qualified immunity on a civil rights claim, see id.
at 955, the officers who accompanied the deputy on the search were protected by
qualified immunity because “nothing in the record indicate[d] that these officers acted
unreasonably in following [the deputy’s] lead, or that they knew or should have
known that their conduct might result in a violation of the [plaintiff’s] rights.” Id. at
956. Here, the record is devoid of any evidence that would support the conclusion
that Ashley, Pietri, Williams, Grim, Dellane, and Sanchez-Blair acted unreasonably.
The record reflects that Grim merely inspected Elbute and had no contact with
Brent. Pietri, under orders of Schor, asked Brent a few routine questions, obtained her
documents and walked her to the secondary examination area. Dellane, on orders of
Schor and Ellis, witnessed the strip search, traveled with Brent to the hospital, and
returned with her to the airport. Ashley, on orders of Schor and Ellis, witnessed the
strip search. Williams, on orders of Schor and Ellis, took Brent to the x-ray room, and
arranged her return to the airport. Sanchez-Blair, at the direction of Schor and Ellis,
conducted the strip search. Each of these individuals acted at the order of a superior
and the record reflects no reason why any of them should question the validity of that
22
order. We, therefore, affirm the district court’s grant of qualified immunity to Ashley,
Pietri, Williams, Grim, Dellane, and Sanchez-Blair.
For all of the above reasons, the rulings of the district court are
AFFIRMED.
23