CA4: Positive ion scan for drugs on entrance of staff into prison that led to empty-handed search was protected by qualified immunity; and the ion scan issue goes only semi-decided

It was not clearly established that using a portable ion scanning machine was a possible Fourth Amendment violation, particularly of employees and contractors entering a prison, so qualified immunity applied. Braun v. Maynard, 652 F.3d 557 (4th Cir. 2011):

On August 12, 2008, officials at the Maryland Correctional Training Center conducted a drug interdiction operation using a portable ion scanning machine capable of detecting minute amounts of controlled substances. Upon entering the building, several employees and independent contractors of the Maryland Department of Public Safety and Correctional Services alerted for the presence of drugs and were then searched. Nothing turned up. The aggrieved employees filed suit, alleging principally that the searches violated their Fourth Amendment rights. The district court held that the defendants were entitled to qualified immunity and dismissed the suit.

We affirm. The prison officials in this case faced difficult questions lying at the intersection of the Fourth Amendment’s broad commands, the prison’s compelling needs, and technology’s innovations. Although it was clearly established that intrusive prison employee searches require reasonable suspicion, it was far from clear that the devices at issue here could not meet that standard. Because no clearly established federal law placed the officers on notice that fighting contraband in the prison environment in this manner was unlawful, we agree with the district court that the immunity attached.

. . .

With this context in mind, it was not clearly established that the searches here could not meet Leverette’s standard. As the complaint asserts, an Ionscan can detect the presence of drugs on a person’s clothing or possessions. It defies belief, then, to think that a positive Ionscan test gives no indication that someone is “hiding contraband on his or her person,” as prison employees are unlikely to waltz into prison with contraband “hidden” only on their shirts. Indeed, given the nature of prison security, it is likely that an employee smuggler would place the contraband in a fairly concealed location on his person. We need not and do not hold that positive Ionscan results will always justify a strip search; nonetheless, it was not clearly established that the Ionscan results obtained here could not.

So what of the merits of an Ion scan when an employee gets busted? Apparently it is valid, based on the far lower expectation of privacy prison employees have when they enter the secure area. Strip search? Not yet decided.