CA10: Body cavity search of arrestee not going into jail was unreasonable and based on jail policy

“A series of coincidences and mistaken beliefs led to the arrest of Laramie Hinkle for possessing a stolen trailer that was not even stolen. And things got worse from there. Despite Hinkle’s recently having served as police chief in a nearby Oklahoma town and having voluntarily presented himself for booking, the sheriff’s office immediately subjected him to a body-cavity strip search. Soon after that, the sheriff published a press release on his office’s website chock full of incriminating allegations from the deputy’s arrest-warrant affidavit. After further investigation showed Hinkle innocent, he sued, alleging as unlawful his arrest, the press release, and the body-cavity strip search. We sympathize with Hinkle. But we conclude that the deputy sheriff had probable cause for the arrest, that the deputy arrested Hinkle based on that probable cause, and that the district court did not err in dismissing Hinkle’s claim that the sheriff issued the press release to retaliate against Hinkle. That said, we conclude that the body-cavity strip search was unreasonable under the Fourth Amendment. And because this unlawful search was based on the County’s indiscriminate strip-search policy, we hold that the County is directly liable.” Hinkle v. Beckham County Bd. of County Comm’rs, 2020 U.S. App. LEXIS 19309 (10th Cir. June 22, 2020):

Having concluded that Florence does not authorize the County’s strip-search policy, we must still decide whether Hinkle suffered an unreasonable search under the Fourth Amendment. The district court did not reach that issue, concluding that this case “fits within Florence.” Appellant’s App. vol. 6 at 1425. The County follows suit, largely resting its case on Florence. With Florence not sanctioning his body-cavity strip search, we must determine what legal standard governs Hinkle’s strip search. Hinkle argues that we should use our circuit’s pre-Florence strip-search cases to determine the Fourth Amendment reasonableness of his strip search. He contends that those cases bar “indiscriminate strip searches of pre-trial detainees.” Appellant’s Opening Br. 22. Indeed, those cases required reasonable suspicion of contraband, including weapons, before permitting a strip search. See, e.g., Archuleta v. Wagner, 523 F.3d 1278, 1285 (10th Cir. 2008) (“[W]hether a strip search is permissible is a separate inquiry based on whether a detainee will be placed in the general prison population and whether the officer has reasonable suspicion that a detainee has hidden drugs, contraband, or weapons.” (citations omitted)); Warner v. Grand County, 57 F.3d 962, 964 (10th Cir. 1995) (“On [January 24, 1991], it was clearly established in this circuit that a brief intermingling with the general jail population does not justify a strip search absent reasonable suspicion of drugs or contraband.” (citation omitted)); Cottrell v. Kaysville City, 994 F.2d 730, 732, 734-36 (10th Cir. 1993) (per curiam) (concluding that a body-cavity search of a detainee who was not “held with any other prisoners” was unreasonable when the arresting officer testified that “he did not suspect Ms. Cottrell of having drugs on her person” and “saw no indication she was carrying any weapons”); Hill v. Bogans, 735 F.2d 391, 392, 394 (10th Cir. 1984) (concluding that a strip search of a traffic offender who “was briefly intermingled with the prison population” was unconstitutional because “[t]here were no circumstances . . . indicating that [he] might possess either a weapon or drugs”).

But because the jail officials never decided that Hinkle “will be” housed at the county jail, no one had any reason to fear that Hinkle might have secreted contraband that he could take into the jail’s general population. In this circumstance, even our pre-Florence cases do not apply—they too concerned the problem of detainees taking contraband into the general population. But for detainees like Hinkle who will not be housed in the jail’s general population, the County needs far more to justify a body-cavity strip search—probable cause that detainee is secreting evidence of a crime. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1447-49 (9th Cir. 1991) (holding that outside of the “jail context,” detainees “may only be subjected to [body-cavity searches] if there is probable cause to believe that [they] ha[ve] secreted the item sought in a body cavity”). The County has not argued that it ever had such probable cause. Thus, we conclude that Hinkle was subjected to an unlawful strip search.