Noelle Way v. County of Ventura Robert Brooks Karen Hanson, and Robert Ortiez, Ventura Police Officer

445 F.3d 1157 Noelle WAY, Plaintiff-Appellee, v. COUNTY OF VENTURA; Robert Brooks; Karen Hanson, Defendants-Appellants, and Robert Ortiez, Ventura Police Officer, Defendant. No. 04-55457. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 8, 2005. Filed April 20, 2006. Alan E. Wisotsky and Jeffrey Held, Law Offices of Alan E. Wisotsky, Oxnard, CA, for the defendants-appellants. Earnest C.S. Bell, Law Offices of Earnest C.S. Bell, Ventura, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, Chief Judge, Presiding. D.C. No. CV-01-05401-CBM. Before RYMER and WARDLAW, Circuit Judges, and EDWARD C. REED, JR., * District Judge. RYMER, Circuit Judge. 1 We must decide whether Ventura County Sheriff Bob Brooks and Deputy Karen Hanson are entitled to qualified immunity for conducting a strip search with a visual cavity inspection of Noelle Way during the booking process at a pre-trial detention facility on a misdemeanor charge of being under the influence of cocaine or methamphetamine in violation of California Health & Safety Code § 11550(a). This requires us first to…

concurring:

I concur with all but part B of the well-written majority opinion. I depart from the majority because I believe that at the time of Way’s body cavity search, the Fourth Amendment principles governing blanket searches prohibited strip and body cavity blanket searches and required individualized reasonable suspicion based on specific and articulable facts before such a search could be conducted on a misdemeanor arrestee. I particularly disagree with the majority’s parsimonious approach to the analysis of our precedent, which focuses on the application of clearly established Fourth Amendment principles to each penal code section we have addressed and not on the well-established principles themselves. The fact of the matter is that Ventura County had an unconstitutional blanket strip search policy which permitted such searches based upon no specific, articulable facts at all — a policy we have repeatedly held unconstitutional. I cannot go so far as to say that under the circumstances the individual officers acted objectively unreasonably, however, only because reasonable officers in Brooks’ and Hanson’s position could have believed that the Ventura County Sheriffs…

We must decide whether Ventura County Sheriff Bob Brooks and Deputy Karen Hanson are entitled to qualified immunity for conducting a strip search with a visual cavity inspection of Noelle Way during the booking process at a pre-trial detention facility on a misdemeanor charge of being under the influence of cocaine or methamphetamine in violation of California Health & Safety Code § 11550(a). This requires us first to decide whether a strip search with a visual cavity inspection can be justified based on Ventura County’s blanket strip-search policy allowing such a search for arrestees charged with any controlled substance offense before placement in the general jail population. The district court held that the search was unconstitutional, and we agree. However, it was not clearly established at the time of Way’s booking that strip searching persons arrested on drug charges is unreasonable. As the district court thought otherwise on this issue, we reverse.

I

On September 6, 2000, Ventura Police Officer Ortiz encountered Way at her work place, the Red Cove Bar, where she was a bartender. He observed that she had dilated pupils, a rapid pulse rate, a nervous attitude and rapid…