Shirley Curd v. Jess Odem , 141 F.3d 839 ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2858
___________
Shirley Curd, *
*
Plaintiff-Appellant, *
* Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
City Court of Judsonia, *
Arkansas; Don Raney, *
Honorable Judsonia City *
Judge; Judsonia Police *
Department, *
*
Defendants, *
*
Jess Odom, White County *
Sheriff; City of Judsonia, *
Arkansas; *
*
Defendants-Appellees, *
*
State of Arkansas; City *
of Searcy, Arkansas, *
*
Defendants. *
___________
Submitted: January 15, 1998
Filed: April 6, 1998
___________
Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit
Judge and SACHS,1 District Judge.
___________
1
The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri, sitting by designation.
SACHS, District Judge.
Shirley Curd brought this 42 U.S.C. § 1983 action against the City
of Judsonia, Arkansas ("the City"), and White County, Arkansas, Sheriff
Jess Odom.2 Curd sought damages for alleged excessive force in effecting
her arrest, unreasonable search and seizure of fingerprint evidence during
the booking process, and unreasonable search of her purse at the station
house following her arrest. The district court3 granted summary judgment
in favor of defendants and Curd appeals. We affirm.
I.
Armed with an arrest warrant, City police officers Bobby Hale, the
Chief of Police, and Darren Kee went to Curd's residence to arrest her on
misdemeanor charges of battery and disorderly conduct. As they were
escorting Curd out of the house, the officers initially told Curd that she
would be able to drive her own car to the White County detention center
(the City does not have a jail), and that she would be allowed to go next
door to her office to get bail money. When Curd began to go next door,
however, Chief Hale seized her arm, spun her around and told her to get
into the police car. She complied.
At the time of Curd's arrest, the officers took her purse. After
arriving at the detention center, Curd's purse was removed from her sight.
When Curd asked for her purse to be placed in view, Chief Hale, some
fifteen minutes after Curd's arrest, searched it.4 Curd describes the
search as taking a couple of
2
The State of Arkansas, the City of Searcy, Arkansas, and
Judsonia Municipal Judge Don Raney were also named as defendants in
this action. The trial court granted these defendants' motions to
dismiss, and the dismissals are not at issue in this appeal.
3
The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.
4
The standard procedure at the detention center is to conduct
an inventory search of items belonging to arrestees. No written
inventory of the purse's contents was taken by Chief Hale.
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minutes and as involving "pull[ing] several things out," "rummag[ing]
around with the stuff in the bottom and then . . . put[ting the] stuff back
in."
During the booking process, Curd was fingerprinted three separate
times. Curd expresses uncertainty about whether Chief Hale was involved
in the fingerprinting. Chief Hale denied any involvement by himself or any
member of the City police force, stating that the fingerprinting was done
by a member of the Sheriff's department. Defendants do not offer an
explanation for the repeated fingerprinting; Curd contends that harassment
motivated the officers.
Curd's son posted bail and, following booking, Curd was released.
Twenty days later, on September 5, 1996, Curd filed this action alleging
violation of Federal constitutional rights.
II.
We review the district court's grant of summary judgment de novo,
applying the same standards as the district court. Mayard v. Hopwood, 105
F.3d 1226, 1227 (8th Cir. 1997). Summary judgment is appropriate when,
viewing the evidence in the light most favorable to the nonmoving party,
"there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c).
A. Excessive Force Claim
Curd first claims that the district court erred in granting summary
judgment on her excessive force claim. We disagree. Fourth Amendment
excessive force claims are evaluated under a standard of "objective
reasonableness." Graham v. Connor, 490 U.S. 386, 395 (1989); Greiner v.
City of Champlain, 27 F.3d 1346, 1354 (8th Cir. 1994). Even if seizing
Curd's arm and turning her body was unnecessary to effect the arrest, we
can not conclude that this
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limited amount of force was objectively unreasonable.5 See, e.g., Joos v.
Ratliff, 97 F.3d 1125, 1126 (8th Cir. 1996) (per curiam) ("de minimis"
amount of force in effecting an arrest would be insufficient to create
constitutional issue). "The right to make an arrest . . . necessarily
carries with it the right to use some degree of physical coercion" and thus
"not every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers violates the fourth amendment." Graham, 490
U.S. at 396. See also Haberthur v. City of Raymore, 119 F.3d 720, 723 (8th
Cir. 1997) ("Section 1983 is intended to remedy egregious conduct, and not
every assault or battery . . . will create liability under it."). Our
conclusion is bolstered by the fact that Curd does not allege, and there
is no evidence, that she was injured or experienced physical pain as a
result of Hale's actions. See, e.g., Dawkins v. Graham, 50 F.3d 532, 535
(8th Cir. 1995) (arrestee demonstrated actual injury).6 The conduct of
Chief Hale in arresting Curd was not so egregious that we can find a
constitutional violation.
5
We assume, without deciding, that Chief Hale was a
policymaker for the defendant City.
6
The Court declines the City's invitation to resolve the
question of whether a Fourth Amendment claim of excessive force
requires a showing of some minimum level of injury. See, e.g.,
Ikerd v. Blair, 101 F.3d 430, 433 (5th Cir. 1996). As we did in
Dawkins, we reserve that question. Dawkins, 50 F.3d at 535. We
hold merely that the absence of injury to Curd is a factor that,
along with the minimum amount of force applied by the officers,
undermines Curd's excessive force claim. See, Greiner, 27 F.3d at
1355.
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B. Multiple Fingerprinting Claim
Curd next claims that the district court erred in granting summary
judgment on her claim that fingerprinting her three times constituted an
unreasonable search and seizure. We again disagree. The custodial
fingerprinting of Curd during the booking process was routine; a complaint
regarding multiple prints (like a complaint regarding several allegedly
unnecessary photographs) following a valid arrest is also simply too minor
to rise to the level of a constitutional violation. See, e.g., United
States v. Weir, 657 F.2d 1005, 1007 (8th Cir. 1983) (nonconsensual
custodial clipping of hair "so minor . . . [that] fourth amendment rights
were not implicated"); United States v. Williams, 902 F.2d 678, 680-81 (8th
Cir. 1990) (suggesting that fingerprinting of suspect arrested upon
probable cause does not constitute a search; even an ultraviolet light
examination is not a search). Moreover, Curd expresses considerable
uncertainty as to whether the City's officers conducted the fingerprinting,
and Chief Hale expressly denies that any member of the City police
department was involved.
We are aware of a remark in Davis v. Mississippi, 394 U.S. 721, 727
(1969), that "the police need only one set of each person's prints." Even
if the comment could pose a limitation on law enforcement rights when there
is simply a "fingerprint detention," as discussed in Davis, we are
satisfied that the ruling does not mean that an arrestee's Fourth Amendment
rights are violated by taking several sets of fingerprints.
C. Purse Search
Curd finally claims that the district court erred in granting summary
judgment on her claim that defendants unconstitutionally searched her purse
after she asked that the purse be placed where she could see it. The
district court concluded that the search constituted a valid inventory
search. We need not decide whether
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this conclusion was correct,7 because we conclude that the search was valid
incident to Curd's arrest. See Cooksey v. Delo, 94 F.3d 1214, 1218 (8th
Cir. 1996) (appellate court may affirm on any basis supported by the
record), cert. denied, U.S. , 118 S. Ct. 624 (1997). We also find
nothing in the separate claim against Sheriff Odom that merits discussion.
Warrantless searches incident to a custodial arrest are "justified
by the reasonableness of searching for weapons, instruments of escape, and
evidence of crime when a person is taken into official custody and lawfully
detained." United States v. Edwards, 415 U.S. 800, 802-03 (1974) (citing
United States v. Robinson, 414 U.S. 218 (1973)).8 The search must be of
objects within the arrestee's area of "immediate control" and must be
"contemporaneous" with the arrest. United States v. Morales, 923 F.2d 621,
627 (8th Cir. 1991). Curd's purse qualified as an object within her area
of "immediate control."9
7
Although we find it unnecessary to reach it here, there is
some question as to whether the search of Curd's purse could be
justified as a valid inventory search. United States v. Johnson,
834 F.2d 1191, 1198 (5th Cir. 1987) (jailing, rather than mere
booking, justifies inventory search), withdrawn on other grounds,
846 F.2d 279 (5th Cir. 1988).
8
The right to conduct a warrantless search incident to a
lawful arrest exists whether or not the officer has probable cause
to believe that he is exposed to danger or that the defendant has
access to destructible evidence. United States v. Chadwick, 433
U.S. 1, 14-15 (1977).
9
It matters not whether Curd was capable of reaching the purse
at the time of the search. See New York v. Belton, 453 U.S. 454,
461-62 n. 5 (1981); Morales, 923 F.2d at 626 ("'accessibility, as
a practical matter, is not the benchmark'" for assessing the
search) (quoting United States v. Palumbo, 735 F.2d 1095, 1097 (8th
Cir. 1984)); 3 W. LaFave, Search and Seizure, § 5.3(a) at 111
(1996) ("the scope of the search at the station is not limited to
items then in the 'immediate control' of the defendant; it is
sufficient that the items were on his person at the time of
arrest.") (emphasis in original; footnote omitted).
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The timeliness requirement is also satisfied. The search took place
at the station house about fifteen minutes after Curd was arrested. This
delay could be fatal if, for example, a large piece of luggage were opened
and inspected without a warrant. See United States v. Chadwick, 433 U.S.
1, 15 (1977) (station house search of two-hundred pound footlocker over an
hour after arrest too remote in time and place for warrantless search
incident to arrest); United States v. $639,558 In U.S. Currency, 955 F.2d
712, 715-16 (D.C. Cir. 1992) (luggage search half an hour after arrest not
contemporaneous). The timeliness requirement for "luggage or other
personal property not immediately associated with the person of the
arrestee" is, in other words, constitutionally fairly strict. See, e.g.,
Chadwick, 433 U.S. at 15.
On the other hand, searches of the person and articles "immediately
associated with the person of the arrestee," are measured with a different,
more flexible constitutional time clock. Compare Chadwick, 433 U.S. at 15,
and United States v. Schleis, 582 F.2d 1166, 1170 (8th Cir. 1978) (en banc)
(search of briefcase at station house not valid search incident to arrest);
with Edwards, 415 U.S. at 803 (search of clothing after an overnight stay
in jail is a valid search incident to arrest), and United States v.
Phillips, 607 F.2d 808, 809-10 (8th Cir. 1979) (search of defendant's
wallet at station house a "substantial period of time" after his arrest
valid search incident to arrest). Searches of the person and those
articles "immediately associated" with the person may be made either at the
time of arrest or when the accused arrives at the place of detention.
Edwards, 415 U.S. at 803. Unlike luggage, courts considering the question
have generally concluded that a purse, like a wallet, is an object
"immediately associated" with the person. See, e.g., United States v.
Berry, 560 F.2d 861, 864 (7th Cir. 1977), vacated on other grounds, 571
F.2d 2 (1978); United States v. Venizelos, 495 F. Supp. 1277, 1281-83
(S.D.N.Y. 1980); and State court cases within the Circuit--Sumlin v. State,
587 S.W.2d 571, 577 (Ark. 1979) (en banc); State
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v. Woods, 637 S.W.2d 113, 116 (Mo. Ct. App. 1982); State v. Hershey, 371
N.W.2d 190, 192 (Iowa Ct. App. 1985).10 But see United States v.
Monclavo-Cruz, 662 F.2d 1285, 1290 (9th Cir. 1981) (purse like suitcase and
briefcase, not clothing; search of purse at station house not valid as
incident to arrest). In United States v. Graham, 638 F.2d 1111 (7th Cir.
1981), the Seventh Circuit went a step further, holding that a purse was
part of the defendant's person and that, accordingly, a search warrant
authorizing a search of the person covered the officer's search of the
purse:
The human anatomy does not naturally contain external pockets,
pouches, or other places in which personal objects can be
conveniently carried. To remedy this anatomical deficiency
clothing contains pockets. In addition, many individuals carry
purses or shoulder bags to hold objects they wish to have with
them. Containers such as these, while appended to the body,
are so closely associated with the person that they are
identified with and included within the concept of one's
person. To hold differently would be to narrow the scope of a
search of one's person to a point at which it would have little
meaning.
Id. at 1114.11
We agree with the general view of this issue. The search of Curd's
purse at the station house fifteen minutes after her arrest fell well
within the constitutionally acceptable time zone for searches of persons
and objects "immediately associated" with them incident to arrest. See,
e.g., Phillips, 607 F.2d at 809-10; State
10
State court decisions on Federal constitutional questions may
be usefully considered, particularly when Federal cases on the
particular point are sparse. Stone v. Powell, 428 U.S. 465, 493-4,
n. 35 (1976).
11
We are not troubled by the Graham court's tacitly accepting
and distinguishing an Illinois case that rejected a station-house
search allegedly undertaken incident to an arrest. The Illinois
case does not take into account the 1981 decision in New York v.
Belton, 453 U.S. 454. The Illinois courts are currently ruling as
we do here. See, e.g., People v. Mannozzi, 632 N.E.2d 627, 632-34
(Ill. Ct. App. 1994).
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v. Wade, 573 N.W.2d 228 (Wis. Ct. App. 1997); People v. Mannozzi, 632
N.E.2d 627, 632-4 (Ill. Ct. App. 1994) (reviewing authorities); Woods, 637
S.W.2d at 116; Sumlin, 587 S.W.2d at 577.
Moreover, before placing the purse in view of, or returning it to,
Curd, who was charged with assault, it was objectively reasonable to
examine the purse for items that could be dangerous. See, e.g., Wade, 573
N.W.2d at 231 ("Not only was it reasonable for the officer to search the
contents of her purse before giving it back to her . . ., we think it would
be unreasonable for arrestees to expect that they can get back a purse
without examination while they are still in custody at a police station.").
Curd's privacy rights in the purse, greatly diminished by the arrest and
for a reasonable time thereafter, yield to police interest in weapons and
evidence. See Edwards, 415 U.S. at 808-09 ("'While the legal arrest of a
person should not destroy the privacy of his premises, it does -- for at
least a reasonable time and to a reasonable extent -- take his own privacy
out of the realm of protection from police interest in weapons, means of
escape, and evidence.'") (quoting United States v. DeLeo, 422 F.2d 487, 493
(1st Cir. 1970)).
Although it could be argued that a brief examination of the purse
should suffice, rather than the intrusive and leisurely study of contents
typical of an inventory search, we hesitate to endorse further complica-
tions in the law, requiring difficult case-by-case application. See
Chadwick, 433 U.S. at 22 n. 3 (Blackmun, J., dissenting). Having
determined that there was objective reasonableness, we are also precluded
from putting law enforcement personnel to a further test of subjective good
faith. Even assuming a possible improper motive, including simple
harassment, current Fourth Amendment law shields law enforcement personnel
from judicial sanction. See Graham, 490 U.S. at 397 ("An officer's evil
intentions will not make a Fourth Amendment violation out of an objectively
reasonable" act); Blue v. Koren, 72 F.3d 1075, 1081 (2d
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Cir. 1995) ("motive is irrelevant, because a Fourth Amendment claim must
be based on a showing that the search in question was objectively
unreasonable.").
For the reasons indicated, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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