FILED

NOT FOR PUBLICATION JUN 14 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

JOHN BURTON, No. 09-35466

Plaintiff - Appellant, D.C. No. 2:06-cv-00322-RHW

v.

MEMORANDUM *

SPOKANE POLICE DEPARTMENT,

(SPD) Uniformed Public Safety Division; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, Senior District Judge, Presiding

Argued and Submitted May 12, 2010 San Francisco, California

Before: HUG, RYMER and McKEOWN, Circuit Judges.

John Burton appeals the district court's summary judgment in favor of

Detective Larry Bowman, the City of Spoµane and the Spoµane Police Department.

In his 42 U.S.C. y 1983 action, Burton alleged that Bowman and other officers

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. violated his Fourth Amendment rights when strip searching him at a private

residence and that the Spoµane Police Department utilized an unconstitutional

blanµet policy allowing officers to conduct warrantless strip searches at the place

of arrest. The parties are familiar with the facts. We do not repeat them. We have

jurisdiction pursuant to 28 U.S.C. y 1291, and we affirm.

I. Fourth Amendment

The district court correctly found that the individual officers were entitled to

qualified immunity with respect to their decision to strip search Burton. Police

officers are, in general, 'shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have µnown.' Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Here, there is no dispute that probable cause existed to arrest

Burton and search the premises for cracµ cocaine. The resulting patdown and

clothing search of Burton produced no drugs. For that reason and because Burton

as well as other drug dealers in the area were µnown to hide drugs in body cavities,

the officers had probable cause to proceed with a visual search of the external areas

of Burton's buttocµs to avoid loss of the suspected evidence. See, e.g., Fuller v.

M.G. Jewelry, 950 F.2d 1437, 1446, 1449 (9th Cir. 1991). The search must, of

course, still be conducted in a reasonable manner. Kennedy v. Los Angeles Police

2 Dep't, 901 F.2d 702, 712 (9th Cir. 1989), overruled on other grounds by Hunter v.

Bryant, 502 U.S. 224 (1991). Kennedy requires courts to balance the need for the

particular search against the invasion of personal rights that the search entails,

consider the scope of the particular intrusion, the manner in which it is conducted,

the justification for initiating it, and the place in which it is conducted. These

factors militate in favor of defendants here. Burton also contends that the brief

presence of a female canine police officer during the search violated this standard.

However, no clearly established law informed the officers that this would be the

case. See, e.g., Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (holding

that the occasional viewing of inmates by female prison guards was justified under

the Fourth Amendment).

II. Alleged Blanµet Strip Search Policy

Burton argues that two other incidents in which the Spoµane Police

Department conducted strip searches of suspects without warrants specifically

authorizing such searches constitute an official policy under which the City of

Spoµane and its police department may be held liable for the actions of its officers.

However, for this argument to have merit, the custom or usage must be so

'permanent and well settled' as to have the force of law. Adicµes v. S. H. Kress &

Co., 398 U.S. 144, 167-68 (1970). This was not the case here.

3

AFFIRMED.

4

FILED

Burton v. Spoµane Police Dept. JUN 14 2010 No. 09-35466 MOLLY C. DWYER, CLERK

U.S . CO UR T OF AP PE A LS

Rymer, Circuit Judge, concurring.

I agree that this is a case in which we should first decide whether the right

Burton asserts was clearly established at the time the officers conducted a visual

body cavity search, Pearson v. Callahan, 129 S. Ct. 808, 813 (2009), and that the

officers here could reasonably believe that their conduct complied with the law. I

would affirm because the officers had a search warrant for the premises and

Burton. They also µnew he had engaged in two previous drug transactions; the

officers had set up a controlled purchase through M.S.; it was 'absolutely clear' to

them that the only reason Burton arrived on schedule was to deliver the drugs; and

they believed Burton had cracµ on him, but none turned up during a routine search

of clothing, mouth, or hair. As the district court held, Washington law authorized

the strip search given the warrant, and no federal law clearly holds to the contrary.

Cf. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1450 (9th Cir. 1991) (suggesting a

visual body cavity search may only be made pursuant to a warrant or exigent

circumstances).

Nor would clearly established law have informed the officers that they

conducted the search unconstitutionally. Assuming the facts as stated by Burton in

both affidavits to be true, he nevertheless also accepted as true the officers' statements of fact. Thus, among other things, the strip search was conducted in a

private area of the house. It tooµ a second or two. Even if one of the officers

could have made the comments attributed to him in a second or two, at most the

remarµs would be unprofessional, but not unconstitutional under clearly

established law. And even if a female officer were present, she didn't participate.

In light of Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985), and

Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988), the officers would

not reasonably have µnown that the presence of a female officer who momentarily

observed an unclad male was constitutionally forbidden.

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