
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1078                                 SHARON WOOD ET AL.,                               Plaintiffs, Appellants,                                          v.                               JAMES R. CLEMONS ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________               John  S. Whitman,  with  whom Richardson,  Whitman, Large  &               ________________              ______________________________          Badger was on brief, for appellants.          ______               Diane Sleek,  Assistant Attorney  General, with whom  Andrew               ___________                                           ______          Ketterer, Attorney General of Maine, was on brief, for appellees.          ________                                 ____________________                                    July 22, 1996                                 ____________________                  LYNCH,  Circuit Judge.    Officers  at a  Maine  prison                          _____________            received  a tip that a female inmate's teenage children would            be   smuggling  drugs   into   the  prison   in  her   infant            granddaughter's booties.   The superintendent of  the prison,            erroneously believing that the tip  had been confirmed by two            unconnected  confidential  informants,  authorized   a  strip            search of the visitors.  In actuality, the tip had originated            from a single anonymous and uncorroborated source.  The strip            search  of   the  plaintiff   minors  turned  up   no  drugs.            Plaintiffs brought  suit against the  superintendent and  the            Commissioner of the Maine  Department of Corrections under 42            U.S.C.   1983.1  The  sole question on appeal is  whether the            district  court correctly  entered  summary  judgment on  the            plaintiffs'  damages claim  in  favor  of the  superintendent            based on his assertion of the qualified immunity defense.  We            conclude that the  constitutionality of prison-visitor  strip            searches is governed by  the standard of reasonable suspicion            and  that  a  reasonable  official  in  the  superintendent's            position  could have  believed, in  light of  the information                                            ____________________            1.  The named plaintiffs  in this action are Sharon Wood; her            son Philip Thamert; her daughter  Katrina Thamert, on her own            behalf  and as  parent of  Maria Thamert;  and John  and Mary            Foss, as parents and next friends of Michelle Hatch,  Phillip            Thamert's girlfriend.  They purport to assert their claims on            behalf of  a statewide class  of individuals affected  by the            alleged  strip-search  policies  of  the  Maine  Correctional            Center  ("MCC").    The  defendants  are  James  R.  Clemons,            Superintendent of the MCC,  and Donald L. Allen, Commissioner            of the Maine Department of Corrections.                                         -2-                                          2            before him, that the searches did not violate the plaintiffs'            constitutional rights.  Accordingly, we affirm.                                          I                  The record, viewed in the  light most favorable to  the            plaintiffs, reveals the following.   Since September of 1993,            Sharon  Wood had  been an  inmate  at the  Maine Correctional            Center ("MCC")  in Windham, Maine, serving  a three-year term            of confinement for a drug-related conviction.  From the  time            she   was  first   incarcerated   there,   she  was   visited            approximately  every other  week by  her son  Phillip Thamert            (then seventeen  years of age), her  daughter Katrina Thamert            (then sixteen), and Phillip's girlfriend Michelle Hatch (then            seventeen).   On each visit, Katrina brought along her infant            daughter  Maria (then  seven months  old).   Nothing happened            during any of these visits to arouse any suspicion of illegal            activity on  the part of Wood  or her visitors.   Wood had no            record of drug violations while at MCC.                  The  events  leading  to the  strip  search  of  Wood's            visitors  began with a telephone call to the MCC by Detective            Peter   Herring,  the  State  Police  Department's  appointed            liaison  to  the prison.   On  a  "large number"  of previous            occasions,   Herring   had   provided  MCC   officials   with            information obtained from his  own confidential sources about            criminal activity  at the prison.   Herring's information had            invariably turned out to be accurate in the past.                                         -3-                                          3                  On January 5, 1994,  Herring called the MCC to  provide            another tip.  Corrections  Officers Charles Baker and Stephen            Butts,  both responsible  for criminal  investigations within            the MCC, fielded Herring's call together.  Herring told Baker            and Butts that he had obtained information that inmate Sharon            Wood was receiving drugs from the outside.  Herring said that            he  had been told by  a confidential informant  who, in turn,            had  heard from an  anonymous source that  Wood was receiving            drugs during visits, and  that the drugs were being  smuggled            into  the  prison  in  her  infant  granddaughter's  booties.            Herring disclosed  to Baker  and Butts that  he had  obtained            this  information on a second-hand basis, and that at no time            had Herring spoken directly  to the original anonymous source            about the tip.  Herring  himself had no personal knowledge of            Sharon Wood or the persons who were supposedly bringing drugs            to her.  Herring did not provide Baker or Butts with the name            of either  his confidential informant or  the original source            of the tip.2                  Soon after  the phone  call, Officer  Baker prepared  a            written  report of  the conversation  with Herring.   Baker's            report,  however, contained  an important  inaccuracy.   That            inaccuracy may be what ultimately allowed the strip search to            take place.   The report  implied that the  information about                                            ____________________            2.  The record does not clearly indicate whether Herring ever            knew the identity of the original tipster.                                         -4-                                          4            Wood  had  been  provided  to  Herring  by  two  independent,                                                             ___________            mutually corroborating confidential informants:                                   _______________________                  Det Peter Herring  advised Butts  and Baker  that                  he received  information from  two separate  CI's                  that prisoner Sharon  Wood (Dorm 2)  is allegedly                  receiving drugs  during visits.  Supposedly,  the                  drugs   are  hidden   in  Wood's  granddaughter's                  booties.    Security projects  office  to monitor                  and   will   request   appropriate  action   when                  required.            Thus,  by   indicating  that   two   unconnected  "CI's"   --                                           ___            confidential  informants  -- had  provided  Detective Herring            with  the  same  information,  Baker's  report  significantly            overrepresented the actual reliability of Herring's tip.                  Five days later,  on January 10, 1994,  defendant James            R.  Clemons, Superintendent of  the MCC,  met with  Baker and            Butts  to conduct  their  regular weekly  review of  security            matters at the prison.  At this meeting, Clemons read Baker's            report of  the information  received from Detective  Herring.            It is undisputed that,  as a result of reviewing  the report,            Clemons  came  to believe  in  good faith  that  two separate            confidential sources had provided Herring  with precisely the            same tip concerning drug-smuggling by Sharon Wood's visitors.            Clemons  signed Baker's  report  to acknowledge  that he  had            reviewed it and to confirm that the  security projects office            run by Baker and Butts would monitor the situation and notify            Clemons if  and when  any further action  became appropriate.            Following  the  January  10  meeting,  no  one  at  the  MCC,            including Clemons, conducted  any additional investigation or                                         -5-                                          5            follow-up concerning the Herring tip.  No action was taken on            the tip prior to the plaintiffs' next visit to the MCC.                  That visit  came on February  22, 1994.   At 10:00 a.m.            that  morning,  Officer Baker  noticed  the  names of  Wood's            children  on  the  prison  visitor  schedule  for  that  day.            Recalling  the  phone  conversation  with  Peter  Herring  on            January 5, Baker paged Superintendent Clemons, who was at his            home, to request authorization to  conduct a strip search  of            the  visitors based on the Herring tip.  About twenty minutes            later,  Clemons responded  to Baker's  page and  authorized a            strip search of Wood's scheduled visitors.  Baker then called            Detective  Herring to  inform  him of  the impending  search.            Herring agreed to stand by in case arrests had to be made.                  Katrina  and  Phillip  Thamert,  Katrina's  baby,   and            Michelle  Hatch arrived  at  the prison  at  about 1:20  p.m.            After Katrina, Phillip and  Michelle signed in, Officer Baker            and another officer took  them aside and told them  that they            would  have to submit to a search for contraband drugs before            they would be  permitted to  see Sharon Wood.   Baker read  a            "consent  to search" form  to the visitors,  advising them of            their constitutional rights to refuse  to give consent and to            require the prison to obtain search warrants, and to withdraw            consent  at any time prior  to the conclusion  of the search.            The form also said that if the visitors refused to consent to            the  search, their  visiting privileges would  be immediately                                         -6-                                          6            and indefinitely  terminated.  Neither Baker  nor the consent            form  made clear that the  search to which  the visitors were            being  asked  to consent  was a  strip  search.   After Baker            finished reading,  each of Wood's visitors  (except the baby)            signed a consent form.                  Katrina Thamert and  her baby  were then  taken by  two            female officers to  a private bathroom, and Phillip was taken            by  two  male  officers  to  a  private storage  room,  while            Michelle Hatch  waited in the  main reception area.   Katrina            was asked to remove  her baby's clothing and diaper.   One of            the  two  female officers  visually  inspected  the baby  and            checked  the   baby's  clothes  and  diaper  for  contraband.            Katrina  held  her baby  at  all times,  and  neither officer            touched the baby during the search.  Katrina was then told to            put the baby's clothes back on.  Although there were no drugs            found on the baby or her clothing, the searches continued.                  In the storage room,  Phillip was told by the  two male            officers to take off his clothing, and he did so.  One of the            male  officers  searched  through his  clothing  and visually            inspected his  mouth and ears.  He was asked to lift his arms            and his  genitals.   Neither officer  touched Phillip  at any            time.   He was then permitted to  dress and was taken back to            the reception area.                  Phillip  held  Katrina's  baby  in  the  reception area            while  Katrina was searched in the bathroom by the two female                                         -7-                                          7            officers.  After removing her clothing, she was asked to lift            her breasts,  and then was told  to squat and cough.   One of            the  officers manually  searched  her clothing  and  visually            inspected  her mouth  and  ears.    Neither of  the  officers            touched  Katrina during  the search.   She  was permitted  to            dress  and return to the reception area.  The female officers            then  escorted  Michelle Hatch  into  the  bathroom and  went            through the same procedure as they had with Katrina.                  None of the  searches having turned up  contraband, the            visitors  were  permitted  to  see  Sharon  Wood.    Katrina,            Phillip,  and Michelle  told Wood  about the  strip searches.            Following the  visit, Wood  filed an internal  grievance with            the  MCC.   After an  internal investigation,  Superintendent            Clemons responded  to Wood  with a memorandum  asserting that            the strip searches had not violated any prison  regulation or            policy.   Shortly thereafter,  the Commissioner of  the Maine            Department of  Corrections affirmed Clemons'  decision.  This            lawsuit followed.                                          II                  The plaintiffs'  amended complaint  sought damages,  an            injunction, and  declaratory relief for a  variety of alleged            constitutional violations and common law torts arising out of            the strip searches.  The district court, on cross-motions for            summary judgment  and partial  summary judgment,  granted the            defendants' motion  for summary judgment in  its entirety and                                         -8-                                          8            denied the plaintiffs' motions for class certification and to            file a second amended complaint.                  The plaintiffs appeal solely from the district  court's            entry of judgment in  favor of defendant Clemons as  to their            claim  for   damages  under    1983  based   on  his  alleged            violations of  the plaintiffs' Fourth Amendment  rights.  The            only question in  this appeal is  whether the district  court            correctly  concluded  that Clemons  is entitled  to qualified            immunity from  the  plaintiffs' damages  claim under    1983.            The  plaintiffs  argue  that   Clemons  is  not  entitled  to            qualified immunity here,  because any reasonable  official in            Clemons' position would have  known that the Fourth Amendment            does not  permit officials to undertake a  strip search based            on  an uncorroborated  tip received  from a  single anonymous            source.                  We  review  the  district  court's  grant   of  summary            judgment de novo.   See St.  Hilaire v.  City of Laconia,  71                     _______    ___ ____________     _______________            F.3d 20, 24 (1st  Cir. 1995), cert. denied, 64  U.S.L.W. 3849                                          _____ ______            (1996).    The ultimate  question of  whether a  defendant is            entitled,  on  a given  set of  facts,  to the  protection of            qualified  immunity is  a question  of law  for the  court to            decide.   See id. at 24 n.1;  Prokey v. Watkins, 942 F.2d 67,                      ___ ___             ______    _______            73  (1st Cir.  1990); Cortes-Quinones  v. Jimenez-Nettleship,                                  _______________     __________________            842  F.2d 556,  561 (1st  Cir.), cert.  denied, 488  U.S. 823                                             _____  ______            (1988).                                         -9-                                          9                                         III                  The "touchstone" of the qualified immunity  question is            the  concept  of  "objective  legal  reasonableness."     See                                                                      ___            Anderson  v. Creighton, 483 U.S.  635, 639 (1987).   Could an            ________     _________            objectively  reasonable official,  situated similarly  to the            defendant, have believed that his conduct did not violate the            plaintiffs'   constitutional  rights,  in  light  of  clearly            established  law  and   the  information  possessed  by   the            defendant at the time of the allegedly wrongful conduct?  See                                                                      ___            Hegarty v. Somerset  County, 53 F.3d  1367, 1373 (1st  Cir.),            _______    ________________            cert. denied, 116 S. Ct. 675 (1995); Singer v. Maine, 49 F.3d            _____ ______                         ______    _____            837,  844 (1st Cir. 1995).  Here, the plaintiffs contend that            Clemons'  conduct  --  authorizing   the  strip  searches  --            violated their  clearly established  rights under  the Fourth            Amendment and fell below the operative threshold of objective            legal reasonableness.                  Clemons disputes the  plaintiffs' position  both as  to            the level  of suspicion required to justify strip searches of            prison visitors, and as to when the legal rule embracing that            level  of suspicion  became "clearly  established."3   On the                                            ____________________            3.  Clemons,  appropriately, makes  no serious  argument that            the plaintiffs' signing of the  "consent to search" forms  on            the day of the visit constitutionally justified the searches.            See  Cochrane v. Quattrocchi, 949 F.2d 11, 14 (1st Cir. 1991)            ___  ________    ___________            ("[A]  prison visitor  confronted  with  the  choice  between            submitting  to  a strip  search  or foregoing  [sic]  a visit            cannot provide  a 'legally cognizable consent,'"  because "it            is  the very choice to  which [the visitor]  [is] put that is            constitutionally  intolerable."  (quoting Blackburn  v. Snow,                                                      _________     ____                                         -10-                                          10            first  issue,  we agree  with the  plaintiffs that  a prison-            visitor strip  search  must be  predicated  upon  "reasonable            suspicion."  Finding no need  to resolve the second question,            however,  we  conclude  that  the defendant  is  entitled  to            qualified immunity on the record here, accepting arguendo the                                                             ________            plaintiffs'  contention as  to when  the relevant  law became            clearly established.                                          A                  We  begin  by  examining  the   nature  of  the  Fourth            Amendment protections  to which the plaintiffs  were entitled            as  visitors to  the  MCC.   Although  a generous  amount  of            deference is given to prison  officials on matters of  prison            safety, security, and discipline, see, e.g., Bell v. Wolfish,                                              ___  ____  ____    _______            441 U.S. 520, 547-48 (1979), it is clear that visitors do not            relinquish their Fourth Amendment rights at the prison gates.            See Blackburn v.  Snow, 771  F.2d 556, 563  (1st Cir.  1985).            ___ _________     ____            Prison visitors retain the right to be free from unreasonable            searches and seizures.  Cochrane v. Quattrocchi, 949 F.2d 11,                                    ________    ___________            13 (1st Cir.  1991), cert. denied, 504 U.S. 985  (1992).  The                                 _____ ______            meaning of "reasonableness" for Fourth Amendment purposes  is            highly situational.    A search  that  is reasonable  in  the            prison environment may not be in other contexts less "fraught            with serious security dangers."  Bell, 441 U.S. at 559.   The                                             ____                                            ____________________            771  F.2d 556, 568, 569  (1st Cir. 1985)),  cert. denied, 504                                                        _____ ______            U.S. 985 (1992).                                         -11-                                          11            standard of "reasonableness" that governs searches in a given            context depends, in general, upon a balancing of "the need to            search  against  the  invasion  which  the  search  entails."            Camara v.  Municipal Court, 387 U.S. 523,  536-37 (1967); see            ______     _______________                                ___            also Blackburn, 771 F.2d at 564.            ____ _________                  In the  volatile  context  of  a prison,  the  need  to            preserve internal  security is  very strong.   See Blackburn,                                                           ___ _________            771 F.2d at 562  (quoting Hudson v. Palmer, 468 U.S. 517, 526                                      ______    ______            (1984)).  Prison  officials may  well have a  need to  search            visitors  in some manner in order to prevent the smuggling of            contraband (such as  drugs or  weapons) to inmates.   On  the            other  side   of  the   balance,  people  naturally   have  a            "diminished expectation of privacy" when they enter a prison,            Blackburn, 771 F.2d at  564, and so "those visiting  a prison            _________            cannot  credibly claim to carry with them the full panoply of            rights  they normally enjoy," id.  at 563; see  also Spear v.                                          ___          _________ _____            Sowders,  71  F.3d  626,  630  (6th  Cir.  1995)  (discussing            _______            constitutionality of routine visitor searches).                  However, a strip search can  hardly be characterized as            a  routine procedure  or as  a  minimally intrusive  means of            maintaining prison  security.   Indeed, "'a strip  search, by            its  very  nature,  constitutes  an  extreme  intrusion  upon            personal privacy, as well as an offense to the dignity of the            individual.'"   Cochrane, 949 F.2d  at 13  (quoting Burns  v.                            ________                            _____            Loranger,   907  F.2d   233,  235   n.6  (1st   Cir.  1990)).            ________                                         -12-                                          12            Accordingly, a  strip search cannot be  justified absent some            quantum of individualized suspicion.  See Blackburn, 771 F.2d                       ________________________   ___ _________            at 564-65  (invalidating as unconstitutional  a prison policy            requiring  strip  searches   of  all  visitors   without  any                                                                      ___            particularized suspicion of illegal activity).                  In determining  the level  of individualized  suspicion                                      _____            against which to test the constitutionality of prison-visitor            strip  searches with a  view to  striking the  proper balance            between  respecting the  legitimate  privacy expectations  of            prison  visitors and  the need  to maintain  prison security,            courts have converged upon one common benchmark: the standard            of "reasonable suspicion."   See Spear, 71 F.3d at  630; Romo                                         ___ _____                   ____            v. Champion, 46  F.3d 1013, 1020  (10th Cir.), cert.  denied,               ________                                    _____  ______            116 S. Ct. 387  (1995); Daugherty v. Campbell, 935  F.2d 780,                                    _________    ________            787 (6th  Cir. 1991) (Daugherty  I), cert.  denied, 502  U.S.                                  ____________   _____  ______            1060 (1992); Thorne v.  Jones, 765 F.2d 1270, 1277  (5th Cir.                         ______     _____            1985), cert. denied, 475 U.S.  1016 (1986); Hunter v.  Auger,                   _____ ______                         ______     _____            672 F.2d 668, 674 (8th Cir. 1982); accord Varrone v. Bilotti,                                               ______ _______    _______            867  F. Supp.  1145, 1149  (E.D.N.Y. 1994).   This  court has            similarly  identified  the  reasonable   suspicion  standard,            albeit  in  another   context,  as  the  one   by  which  the            constitutionality  of  a strip  search should  be determined.            See United  States v. Uricoechea-Casallas, 946  F.2d 162, 166            ___ ______________    ___________________            (1st Cir. 1991) (stating, in context of border searches, that            "[w]here a search is  not routine (e.g., a strip  search), we                                               ____                                         -13-                                          13            have  applied the  'reasonable suspicion'  standard." (citing            UnitedStates v. Wardlaw, 576F.2d 932, 934-35(1st Cir. 1978)).            ____________    _______                  Without  deciding  the  question  whether  or  when the            reasonable suspicion standard  became clearly established  in            the  prison   visitor  context  in  this   circuit,4  we  now            explicitly state  that "reasonable  suspicion" is  indeed the            proper standard  by which  to gauge the  constitutionality of            prison-visitor strip searches.  That  standard guards against            arbitrary  or  clearly  unfounded  searches  by placing  non-            trivial constraints  upon the ability of  prison officials to            strip  search visitors,  see Daugherty  v. Campbell,  33 F.3d                                     ___ _________     ________            554,  556-57 (6th  Cir.  1994) (Daugherty  II) (holding  that                                            _____________            uncorroborated  tips without  indicia of  reliability do  not            create  reasonable suspicion), but  avoids unduly restricting            prison   officials   in   responding   to  the   demands   of            institutional  security.   The reasonable  suspicion standard            thus  preserves  an  appropriate  balance  between  visitors'            legitimate privacy  interests and  the  government's need  to            search.    In  sum,   prison  officials  violate  the  Fourth                                            ____________________            4.  Clemons  contends that the  reasonable suspicion standard            was not clearly  established in this  circuit as of  February            1994.   He  observes  that this  court,  in its  most  recent            published opinion addressing the  issue before that time, had            reserved   the  question,  saying  only  that  visitor  strip            searches   require   "some   as-yet   undefined   'level   of            individualized  suspicion.'"    Cochrane,  949  F.2d  at  13.                                            ________            Plaintiffs  contend that despite  the statement  in Cochrane,                                                                ________            decisions  in other circuits had made  clear by February 1994            that   "reasonable  suspicion"   was  indeed   the  governing            standard.                                         -14-                                          14            Amendment  when  they undertake  a strip  search of  a prison            visitor  without reasonable  suspicion of  circumstances that            justify  the  search.   The  concrete  meaning of  reasonable            suspicion turns on the facts of each particular case.                                          B                  Plaintiffs can  overcome the  defendant's assertion  of            the qualified immunity defense  only by showing that Clemons'            conduct  was  objectively  unreasonable in  light  of clearly            established law.  Assuming, without deciding, for purposes of            our analysis here, that the reasonable suspicion standard was            clearly  established law by the  date on which the plaintiffs            were strip searched, we conclude that Clemons  is entitled to            qualified immunity.   A  reasonable official in  his position            could have believed that  there was reasonable suspicion that            the plaintiffs would be bringing drugs to Sharon Wood.5                  A  "reasonable suspicion"  of  wrongdoing is  something            stronger  than a mere "hunch," Terry  v. Ohio, 392 U.S. 1, 22                                           _____     ____            (1967),  but  something  weaker  than probable  cause.    See                                                                      ___            Alabama v. White, 496 U.S. 325, 330 (1990); Spear, 71 F.3d at            _______    _____                            _____            630.    At  a  minimum,  the  reasonable  suspicion  standard            requires that the decision to search be  based on articulable            factual  information  bearing  at   least  some  indicia   of                                            ____________________            5.  Plaintiffs  do  not  argue   that  the  Fourth  Amendment            required the  strip searches  to be predicated  on any  basis            stronger than reasonable suspicion.                                         -15-                                          15            reliability.    See, e.g.,  White,  496 U.S.  at  330; United                            ___  ____   _____                      ______            States  v.  Sokolow,   490  U.S.  1,  7  (1989).     However,            ______      _______            "reasonable suspicion can arise from information that is less            reliable than that required to show probable cause."   White,                                                                   _____            496  U.S. at 330.  Although an anonymous tip, standing alone,            may  typically  fail  to   create  reasonable  suspicion,  an            anonymous tip that  is corroborated in some measure by actual            facts or  by other sources may be enough.  See id. at 329-31;                                                       ___ ___            United States v. Walker, 7 F.3d 26, 31  (2d Cir. 1993), cert.            _____________    ______                                 _____            denied, 114 S. Ct. 1201 (1994); United States v. McBride, 801            ______                          _____________    _______            F.2d  1045, 1047-48 (8th  Cir. 1986), cert.  denied, 479 U.S.                                                  _____  ______            1100 (1987).                  Here, plaintiffs  argue that  the hearsay tip  received            by Detective Herring from his confidential informant, who had            heard it from an anonymous source, did not provide reasonable            suspicion, and that no reasonable official could have thought            differently.   The difficulty  with this argument  is that it            seeks to  defeat Clemons' claim  of immunity by  charging him            with  notice of facts that were not  actually known to him at            the time he made the decision to authorize the searches.                  The issue  on appeal  is whether  Clemons, and not  any            other  defendant  or  potential  defendant,  is  entitled  to            qualified  immunity.    The  inquiry must  focus  on  whether            Clemons  himself acted as a reasonable  official might.  That            determination  can  only be  made  "in  light  of  . . .  the                                         -16-                                          16            information  [that  Clemons] possessed  at  the  time of  his            allegedly  unlawful conduct."   McBride  v. Taylor,  924 F.2d                                            _______     ______            386, 389 (1st Cir. 1991); see also Anderson, 483 U.S. at 641;                                      ________ ________            Prokey, 942  F.2d at  72.   Here,  there is  no dispute  that            ______            Clemons was  told by  his staff  and genuinely  believed that            Detective   Herring   had   learned  from   two   unconnected                                                        _________________            confidential  informants that  Sharon  Wood's  visitors  were            ________________________            smuggling drugs into the MCC in her granddaughter's booties.                  The plaintiffs  respond by  arguing that  Clemons acted            unreasonably  in accepting  Baker's  report as  true  without            conducting further  investigation.   We disagree.   While the            mistake  that led  to  Clemons being  misinformed  as to  the            nature of  the tip is not  to be condoned, we  cannot say, on            the totality of the circumstances  of this case, that Clemons            was unjustified  in accepting Officer Baker's  report at face            value.     Over  the   course  of  their   five-year  working            relationship, Clemons had grown to trust Baker to provide him            with  reliable information on investigatory matters.  Indeed,            Clemons  testified at  his deposition  that Baker  had always            provided  him  with  accurate information  and,  in  Clemons'            estimation, was "not one to make assumptions."  Similarly, in            Clemons' experience, information provided by Peter Herring to            the  MCC in  a large  number of  previous investigations  had            always turned out to  be accurate, and Clemons had  thus come            to consider Herring  himself to be a reliable and trustworthy                                         -17-                                          17            source of information.   The  plaintiffs do  not allege  that            Clemons' general trust in Baker or in Herring was unjustified            or misplaced.                  It  is  only  fair  to  conclude  that  Clemons  had  a            reasonable  basis  to  believe  that  the  tip  about  Wood's            visitors -- as reported in Baker's memorandum --  had already            been tested for  reliability by both  Herring and Baker,  and            that there was no need for Clemons himself to conduct further            investigation  into  the  tip's  sources.   And,  if  Clemons            reasonably believed that the  tip, as reported, was reliable,            it  would  be inconsistent  with  the  basic  purpose of  the            qualified immunity defense --  i.e., to protect an official's                                           ____            reasonable  judgments  from post  hoc  attack  -- to  deprive                                        _________            Clemons  of that defense merely because the nature of the tip            was, through  no fault of  his own,  erroneously reported  to            him.6  See  United States  v. Hensley, 469  U.S. 221,  232-33                   ___  _____________     _______            (1985)  (explaining   that  police  officers   who  make   an            investigatory stop  based  on  defensible  reliance  upon  an            erroneous police  bulletin may assert immunity  in civil suit                                            ____________________            6.  There  is  no  suggestion   here  that  prison  officials            deliberately  or  systematically  misreported information  to            Clemons in order to obtain authorizations for strip searches.            Cf. Arizona v. Evans, 115 S. Ct. 1185, 1194 (1995) (O'Connor,            ___ _______    _____            J., concurring)  (observing that  even though the  good faith            exception  to the  exclusionary rule  applied where  a police            officer reasonably relied on  an erroneous computer record in            making a  false arrest, the same might  not be true where the            computer records relied upon  were known to be systematically            inaccurate).                                         -18-                                          18            for  Fourth Amendment  violations); cf.  United States  v. De                                                ___  _____________     __            Leon-Reyna, 930 F.2d  396, 399-400 (5th Cir. 1991)  (en banc)            __________            (border officer's reliance  on erroneous information provided            by  dispatcher  may  be  objectively  reasonable  for  Fourth            Amendment  purposes,  even  if  error was  partly  result  of            officer's own negligence).                  Once we accept that Clemons  defensibly relied upon the            contents  of  Baker's  report   in  making  the  decision  to            authorize the  strip searches,  this case  can  no longer  be            viewed (as plaintiffs would characterize it)  as one in which            an  official knowingly relied on an uncorroborated, anonymous            tip in carrying  out a search.  Cf. Daugherty  II, 33 F.3d at                                            ___ _____________            557  (rejecting qualified  immunity  defense  where  official            authorized strip  search of  prison visitor based  on letters            from "an  anonymous inmate  and . . . a  non-existent person"            and  an uncorroborated assertion  of a corrections officer7).            Instead, Clemons' authorization of  the searches was based on            a  tip he believed had been received from two unconnected yet                                            ____________________            7.  In Daugherty  II, the defendant warden  conceded that the                   _____________            letters did  not form  a basis for  reasonable suspicion  but            contended that he was  entitled to rely on the  statements of            the corrections officer.  See id. at 557.  However, there was                                      ___ ___            no indication in that case that the warden had any reason  to            be unaware  of the information's unreliability  or to believe            that  the officer's  statements  (unlike Detective  Herring's            statements  here)  were  independently trustworthy.    In any            event, in rejecting the  warden's argument, the Sixth Circuit            stated,  "we do not impose  a duty on  wardens to investigate            the  reliability of all their officers' conclusions."  Id. at                                                                   ___            557.                                         -19-                                          19            mutually  corroborating confidential informants, both of whom            Clemons believed had made the highly specific allegation that            visitors  were hiding  drugs in  an infant's  booties for  an            inmate who  was serving time for a  drug conviction.  Nor can            we ignore  that Clemons' assessment of  the tip's reliability            was  favorably affected  by  his awareness  that it  had been            delivered to the MCC  by Peter Herring,  who, to the best  of            Clemons'   knowledge,  had   never  before   provided  prison            officials with information that had turned out to be false.                  Viewed  in  this light,  it  is difficult  to  say that            Clemons'  decision to authorize the searches was "objectively            legally unreasonable."   Anderson, 483 U.S. at  641.  Mindful                                     ________            that "'if there  is a  legitimate question as  to whether  an            official's  conduct  constitutes a  constitutional violation,            the official is entitled  to qualified immunity,'" Singer, 49                                                               ______            F.3d at  845 (internal quotations omitted),  we conclude that            Clemons  is entitled to the  protection of that  defense.  An            objectively  reasonable official,  presented with all  of the            information  in Clemons'  possession and  similarly situated,            could  very well have believed that there existed a basis for            reasonable suspicion that Wood's  visitors would be smuggling            drugs into the MCC.8  Cf.  United States v. Wangler, 987 F.2d                                  ___  _____________    _______                                            ____________________            8.  Plaintiffs do  not raise,  and we therefore  deem waived,            any  argument that  the  tip's focus  on  the baby's  booties            precluded  the existence  of  individualized suspicion  as to            Katrina Thamert, Phillip Thamert, or Michelle Hatch.                                         -20-                                          20            228,  230  (5th  Cir.  1993) (information  provided  by  "two            unconnected informants" contributed  to reasonable  suspicion            that suspect was carrying drugs).9                                          IV                  We  conclude  that  defendant  Clemons  is entitled  to            qualified immunity  from personal liability  for his  alleged            violation  of the plaintiffs' constitutional right, as prison            visitors,  not to  be strip  searched except  upon reasonable            suspicion that  they were  carrying contraband.   Clemons, in            defensible reliance on written information provided to him by            a  trusted prison  official, believed  in good  faith  that a            police  detective  with  a  proven track  record  of  feeding            invariably accurate  investigative information to  the prison            had  learned that two unconnected confidential informants had                              ___            separately reported  the same highly specific allegation that            the visitors  of a named  female inmate were  smuggling drugs                                            ____________________            9.  Of  course,  to  say  such  a  belief  would  have   been            reasonable  is not to imply  that it would  have been legally            correct.  Lowinger  v. Broderick,  50 F.3d 61,  65 (1st  Cir.                      ________     _________            1995)  ("[E]ven  erroneous  decisions  by  officials  may  be            entitled to qualified immunity."); Rivera v. Murphy, 979 F.2d                                               ______    ______            259, 263  (1st Cir. 1992) ("'The  qualified immunity standard            gives ample room for mistaken judgments by protecting all but            the plainly  incompetent or  those who knowingly  violate the            law.'"  (quoting Hunter v.  Bryant, 502 U.S.  224, 229 (1991)                             ______     ______            (per   curiam)   (internal  quotation   marks   and  citation            omitted)).  Although we  sustain the defendant's assertion of            the qualified immunity  defense, we express no  opinion as to            the legal "correctness" of  any belief that Clemons  may have            had  (based  on the  facts as  he  knew them)  concerning the            existence of  reasonable suspicion that  the plaintiffs  were            engaged in illegal activity.                                         -21-                                          21            into the prison  in her infant  granddaughter's booties.   On            the record  before us, an objectively  reasonable official in            possession  of  this   information  and  otherwise  similarly            situated to  Clemons could have decided  there was reasonable            suspicion  to believe  that Sharon  Wood's visitors  would be            smuggling  drugs into the MCC.   The district court therefore            properly  granted  summary  judgment in  favor  of  defendant            Clemons.                  Affirmed.  No costs.                  _________  _________                                         -22-                                          22
