     11-5403-cv
     Gonzalez v. City of Schenectady

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2012
 6
 7
 8    (Submitted: January 7, 2013             Decided: August 28, 2013)
 9
10                              Docket No. 11-5403
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   JONATHAN GONZALEZ,
15
16                     Plaintiff-Appellant,
17
18               - v.-
19
20   CITY OF SCHENECTADY; JOHN MALONEY, individually and in his
21   capacity as an employee of the City of Schenectady, New
22   York, Police Department; SEAN DALEY, individually and in his
23   capacity as an employee of the City of Schenectady, New
24   York, Police Department; ERIC PETERS, individually and in
25   his capacity as an employee of the City of Schenectady, New
26   York, Police Department; COUNTY OF SCHENECTADY,
27
28                     Defendants-Appellees.
29
30   - - - - - - - - - - - - - - - - - - - -x
31

32         Before:           JACOBS, Chief Judge, POOLER and CHIN,
33                           Circuit Judges.
34
35         Jonathan Gonzalez appeals from the judgment of the

36   United States District Court for the Northern District of

37   New York (Hurd, J.) dismissing on summary judgment

38   Gonzalez’s § 1983 complaint alleging false arrest and

39   unlawful search.       Because there was “arguable” probable
1    cause to arrest Gonzalez and the law relevant to the body

2    cavity search at issue was not clearly established, we

3    affirm the grant of qualified immunity.    In a separate

4    opinion, Judge Pooler concurs in part and dissents in part.

 5                                 JAMES BRIAN LeBOW, LeBow and
 6                                 Associates, PLLC, New York, New
 7                                 York, for Appellant.
 8
 9                                 MICHAEL JOSEPH MURPHY, Carter,
10                                 Conboy, Case, Blackmore, Maloney
11                                 & Laird, P.C., Albany, New York,
12                                 for Appellees.
13
14   DENNIS JACOBS, Chief Judge:
15
16       Jonathan Gonzalez brought suit against the City and

17   County of Schenectady and three Schenectady police officers

18   under 42 U.S.C. § 1983 and state law alleging arrest without

19   probable cause and conduct of a visual body cavity search in

20   violation of the Fourth Amendment.    In an area known for

21   drug activity, Gonzalez told a confidential informant (who

22   was wearing a wire), “What do you need?    I can get you

23   whatever you need.”   Gonzalez was arrested, taken to the

24   police station, and subjected to a visual body cavity

25   search.   Gonzalez was required to take off his clothes and

26   stand against a wall, where he spread his legs and spread

27   his buttocks.   Officers saw a protruding plastic bag, which

28   contained crack cocaine.

                                    2
1        Gonzalez was charged with criminal possession of a

2    controlled substance and, after losing his suppression

3    motion, was convicted by a jury and sentenced to

4    two-and-a-half years’ imprisonment followed by two years’

5    post-release supervision.    The New York Supreme Court,

6    Appellate Division, Third Department, reversed the

7    conviction on the ground that the visual body cavity search

8    was unlawful, relying on a New York Court of Appeals case,

9    People v. Hall, that was decided after the search took

10   place.

11       Gonzalez brought suit in the Northern District of New

12   York, under 42 U.S.C. § 1983, alleging false arrest and

13   unlawful search, and naming the City, the County, and the

14   three officers involved with the search.      The district court

15   granted summary judgment in favor of defendants on the

16   ground of qualified immunity.       Gonzalez appeals, and for the

17   following reasons, we affirm.

18

19                               BACKGROUND

20       On May 16, 2006, the Schenectady Police Department was

21   conducting a buy-and-bust operation using a confidential

22   informant who was wearing a wire.      The confidential


                                     3
1    informant drove to a parking lot in an area of Schenectady

2    known as a drug mart.   With him were a woman and her

3    boyfriend Matt.   The pair got out of the car while the

4    confidential information stayed inside.

5        In a conversation heard by police via the wire,

6    Gonzalez approached Matt and asked, “What’s up?”    Matt said

7    he was “trying to get something.”   Gonzalez responded: “What

8    do you need?    I can get you whatever you need.”   Because the

9    buy and bust was targeting a different dealer, the woman

10   said, “We are all set,” and Gonzalez walked away.

11       Officers John Maloney and Sean Daley, defendants here,

12   had observed the encounter but did not hear the

13   conversation.   Detective Christopher Cowell, who had

14   listened in, radioed to tell them that Gonzalez had just

15   attempted to sell drugs.   Gonzalez then walked to the bus

16   station to buy a ticket to the Bronx to visit his mother.

17   At the bus station, two other officers–-Robert Dashnow and

18   defendant Eric Peters--approached Gonzalez with guns drawn,

19   told him to get on the ground outside the station, and

20   searched him.   After finding nothing, they placed him in a

21   van, and Officer Daley began to question him and search him

22   again.



                                    4
1        At the police station, Officers Peters and Maloney

2    elicited Gonzalez’s background information, and then told

3    him to take his clothes off.   When Gonzalez was undressed,

4    Officer Maloney instructed him to stand against the wall,

5    spread his legs, and spread his buttocks so they could see

6    inside.    The officers observed a “little plastic bag

7    sticking out . . . of [his] rectum.”   Gonzalez alleges that

8    one of the officers then “put his fingers in [Gonzalez’s]

9    rectum penetrating [his] rectum” and removed a bag

10   containing drugs.   He claims that this (as opposed to the

11   storage) caused him to bleed for approximately a year

12   afterwards.   Defendants assert that Gonzalez pulled it out

13   himself.

14       Gonzalez was charged with criminal possession of a

15   controlled substance.   The trial court denied his motion to

16   suppress the drugs found in the search, focusing almost

17   exclusively on whether there was probable cause to arrest

18   Gonzalez, and concluding that there was.   The court made

19   only a passing remark about the legality of the search

20   itself: “Subsequent to [Gonzalez’s] arrest, a lawfully

21   conducted strip search did in fact reveal that [he]

22   possessed cocaine.”



                                    5
1        A jury convicted Gonzalez of Criminal Possession of a

2    Controlled Substance in the Third Degree and Criminal

3    Possession of a Controlled Substance in the Fourth Degree,

4    and he was sentenced to two-and-a-half years’ imprisonment

5    and two years’ post-release supervision.

6        On December 24, 2008, the New York Supreme Court,

7    Appellate Division, Third Department, reversed the

8    conviction, concluding that “there was no specific,

9    articulable factual basis supporting a reasonable suspicion

10   for conducting the visual cavity inspection here. . . .

11   [A]nd the evidence related to the inspection should have

12   been suppressed.”   People v. Gonzalez, 57 A.D.3d 1220, 1222

13   (3d Dep’t 2008).    The Third Department cited People v. Hall,

14   10 N.Y.3d 303 (2008), in support of its conclusion that the

15   police needed reasonable suspicion that they would find

16   contraband in Gonzalez’s body cavity.

17       Gonzalez filed a summons in New York Supreme Court on

18   July 27, 2009, against the City of Schenectady, the County

19   of Schenectady, and Officers Maloney, Daley, and Peters

20   under 42 U.S.C. § 1983, arguing that the arrest and visual

21   body cavity search violated Gonzalez’s Fourth Amendment




                                    6
1    right to be free from unreasonable searches and seizures.1

2    Defendants removed the case to the Northern District of New

3    York (Hurd, J.).    The district court dismissed the case on

4    summary judgment in November 2011, concluding that the

5    officers were entitled to qualified immunity for the arrest

6    because there was “arguable probable cause.”   It also

7    concluded that they were entitled to qualified immunity for

8    the search because the law on body cavity searches was not

9    clearly established when the search occurred, Hall having

10   been decided (in 2008) two years after the search.   The

11   claims against the City and County were dismissed because

12   Gonzalez alleged only vicarious liability.2

13

14                              DISCUSSION

15       The Court reviews de novo a decision on a motion for

16   summary judgment.   Mario v. P & C Food Mkts., Inc., 313 F.3d

17   758, 763 (2d Cir. 2002); see also Miller v. Wolpoff &

          1
              Gonzalez also alleged state law claims for
     negligent infliction of emotional distress, negligence,
     intentional infliction of emotional distress, malicious
     prosecution, and false imprisonment. He withdrew all of
     these except the malicious prosecution and false
     imprisonment claims before the district court decided the
     summary judgment motion.
          2
              Gonzalez does not appeal the dismissal of the
     claims against the City and County.
                                    7
1    Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).     Summary

2    judgment is appropriate if there is no genuine dispute as to

3    any material fact and the moving party is entitled to

4    judgment as a matter of law.   Miller, 321 F.3d at 300.    In

5    assessing a motion for summary judgment, a Court is

6    “required to resolve all ambiguities and draw all

7    permissible factual inferences in favor of the party against

8    whom summary judgment [was granted].”   Terry v. Ashcroft,

9    336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks

10   omitted).

11

12                                  I

13       The doctrine of qualified immunity protects government

14   officials from suit if “their conduct does not violate

15   clearly established statutory or constitutional rights of

16   which a reasonable person would have known.”   Harlow v.

17   Fitzgerald, 457 U.S. 800, 818 (1982).   The issues on

18   qualified immunity are: (1) whether plaintiff has shown

19   facts making out violation of a constitutional right; (2) if

20   so, whether that right was “clearly established”; and (3)

21   even if the right was “clearly established,” whether it was

22   “objectively reasonable” for the officer to believe the


                                    8
1    conduct at issue was lawful.   Taravella v. Town of Wolcott,

2    599 F.3d 129, 133-34 (2d Cir. 2010).

3        To be clearly established, “[t]he contours of the right

4    must be sufficiently clear that a reasonable official would

5    understand that what he is doing violates that right.”

6    Anderson v. Creighton, 483 U.S. 635, 640 (1987).   In this

7    way, qualified immunity shields official conduct that is

8    “‘objectively legally reasonable in light of the legal rules

9    that were clearly established at the time it was taken.’”

10   X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)

11   (alterations omitted) (quoting Anderson, 483 U.S. at 639);

12   see also Taravella, 599 F.3d at 134-35.

13

14                                  II

15       A § 1983 claim for false arrest is substantially the

16   same as a claim for false arrest under New York law. Weyant

17   v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).   “The existence

18   of probable cause to arrest constitutes justification and is

19   a complete defense to an action for false arrest, whether

20   that action is brought under state law or under § 1983.”

21   Id. (internal quotation marks omitted); see also Broughton

22   v. State, 37 N.Y.2d 451, 456–58 (1975).


                                    9
1                                  A

2        The first question as to qualified immunity is whether

3    the officers violated Gonzalez’s rights by arresting him.

4    That is, whether the officers had probable cause to arrest

5    him at the time of the arrest.     “In general, probable cause

6    to arrest exists when the officers have knowledge or

7    reasonably trustworthy information of facts and

8    circumstances that are sufficient to warrant a person of

9    reasonable caution in the belief that the person to be

10   arrested has committed or is committing a crime.”     Weyant,

11   101 F.3d at 852 (emphasis added).    The inquiry is limited to

12   “whether the facts known by the arresting officer at the

13   time of the arrest objectively provided probable cause to

14   arrest.”   Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006).

15       To ascertain the existence of probable cause, we look

16   at the facts as the officers knew them in light of the

17   specific elements of each crime.    While an officer “need not

18   have concrete proof of each element of a crime to establish

19   probable cause for an arrest,” Brewton v. City of New York,

20   550 F. Supp. 2d 355, 365 (E.D.N.Y. 2008), probable cause

21   means “more than bare suspicion,” Brinegar v. United States,

22   338 U.S. 160, 175 (1949).   And it certainly means more than


                                   10
1    suspicion of some generalized misconduct: “no probable cause

2    exists to arrest where a suspect’s actions are too ambiguous

3    to raise more than a generalized suspicion of involvement in

4    criminal activity.”   United States v. Valentine, 539 F.3d

5    88, 94 (2d Cir. 2008).

6        The only facts known to the officers at the time of the

7    arrest were that (1) Gonzalez was in an area known for drug

8    sales, and (2) Gonzalez approached Matt and offered to get

9    him “whatever [he] need[ed].”3     The question is whether

10   these circumstances supported probable cause to arrest

11   Gonzalez for criminal possession of a controlled substance,

12   or for criminal sale of a controlled substance, or for an

13   attempt.

14                                 1

15       Gonzalez was convicted of Criminal Possession of a

16   Controlled Substance in the Third and Fourth Degrees.        A

17   person is guilty of Criminal Possession of a Controlled

18   Substance in the Third Degree “when he knowingly and

19   unlawfully possesses . . . a narcotic drug with intent to


          3
              “[W]here . . . an arresting officer has acted on
     the basis of a radio communication from a fellow officer who
     has personal knowledge of the facts transmitted, he or she
     presumptively possesses the requisite probable cause.”
     People v. Pacer, 203 A.D.2d 652, 653 (3d Dep’t 1994).
                                   11
1    sell it.”   N.Y. Penal Law § 220.16(1).   A person is guilty

2    of Criminal Possession of a Controlled Substance in the

3    Fourth Degree “when he knowingly and unlawfully

4    possesses . . . one or more preparations, compounds,

5    mixtures or substances containing a narcotic

6    drug . . . [with] an aggregate weight of one-eighth ounce or

7    more.”   Id. § 220.09(1)

8        The most natural meaning of Gonzalez’s statement (that

9    he could get Matt “whatever [he] need[ed]”) is that Gonzalez

10   possessed no controlled substance at the moment, and that if

11   Matt needed some, Gonzalez would have to “get” it.   The

12   statement did not preclude the possibility that Gonzalez was

13   keeping drugs in a body cavity, since it would not be

14   expected that he would retrieve it for delivery then and

15   there; but neither did the statement indicate that he had on

16   his person whatever drug Matt might name.

17       The officers never saw Gonzalez make a transaction, nor

18   did they see anything showing that Gonzalez possessed drugs,

19   as opposed to simply knowing where to get them.   Cf. People

20   v. Eldridge, 103 A.D.2d 470, 471-72 (1st Dep’t 1984)

21   (overturning finding of no probable cause where officers

22   observed defendant with glassine envelopes containing a

23   white substance in a high drug area).

                                   12
1                                    2

2        Even without probable cause to believe Gonzalez

3    possessed drugs, the officers might have had probable cause

4    to arrest Gonzalez for Criminal Sale of a Controlled

5    Substance, which requires a defendant to have “knowingly and

6    unlawfully [sold] . . . a narcotic drug.”    N.Y. Penal Law

7    § 220.39.    Under New York Penal Law § 220.00, “‘[s]ell’

8    means to sell, exchange, give or dispose of to another, or

9    to offer or agree to do the same.”    (Emphasis added).     The

10   New York Court of Appeals has held that, “in order to

11   support a conviction under an offering for sale theory,

12   there must be evidence of a bona fide offer to sell--i.e.,

13   that defendant had both the intent and the ability to

14   proceed with the sale.”    People v. Mike, 92 N.Y.2d 996, 998

15   (1998); see also People v. Crampton, 45 A.D.3d 1180, 1181

16   (3d Dep’t 2007).

17       The Mike case is instructive:

18               Defendant approached two off-duty police officers
19               and inquired whether they were interested in
20               purchasing an unspecified type and quantity of
21               drugs. One of the officers asked if defendant had
22               any “dime bags;” [sic] defendant responded that he
23               only had “twenties.” Ultimately, defendant got
24               into the officers’ vehicle and led them to the
25               driveway of a building. Defendant told the
26               officers to give him some money, and he would go
27               into the building and get the drugs. The officer

                                    13
 1             who had offered to purchase the drugs was
 2             unwilling to go along with this arrangement. The
 3             money belonged to the officer and he was
 4             admittedly afraid that defendant would simply
 5             abscond with it. Because of the officer’s
 6             unwillingness to either part with the money or
 7             accompany defendant into the building, the
 8             transaction proceeded no further and without ever
 9             having exited the vehicle, defendant was placed
10             under arrest for offering to sell drugs.
11
12   Mike, 92 N.Y.2d at 998.   The Court of Appeals held that the

13   evidence in that case “was insufficient to establish that

14   defendant had the ability to carry out the sale.”   Id. at

15   999; see also People v. Braithwaite, 162 Misc. 2d 613, 614-

16   16 (N.Y. Sup. Ct. 1994) (finding that the evidence was

17   insufficient to support a conviction for Criminal Sale of a

18   Controlled Substance because “[t]he offer here was anything

19   but definite. It was couched in terms such as ‘if I can

20   get’; ‘you want like an ounce or so’; ‘you willing to spend

21   like $800’; ‘once I get the price’; and ‘you know how long I

22   don’t buy a ounce.’”).

23       Gonzalez did not “offer” to sell drugs to Matt because

24   what Gonzalez said was considerably short of a “bona fide”

25   offer.   Cf. People v. Rodriguez, 184 A.D.2d 439, 439 (1st

26   Dep’t 1992) (concluding that an offer to sell cocaine,

27   followed by an undercover officer “asking for ‘two’” and the

28   defendant reaching for a cigarette box containing the

                                   14
1    cocaine, was sufficient).   Once Gonzalez walked away from

2    Matt, there was no reason to believe that he had made a bona

3    fide offer.

4        There was therefore no probable cause to arrest

5    Gonzalez for Criminal Sale of a Controlled Substance.

6                                   3

7        The officers might have also had probable cause to

8    arrest Gonzalez for attempting either one of these two

9    crimes.    “A person is guilty of an attempt to commit a crime

10   when, with intent to commit a crime, he engages in conduct

11   which tends to effect the commission of such crime.”    N.Y.

12   Penal Law § 110.00.    For an attempt, it must be shown that

13   the defendant “committed an act or acts that carried the

14   project forward within dangerous proximity to the criminal

15   end to be attained.”   People v. Warren, 66 N.Y.2d 831, 832-

16   33 (1985) (citing People v Di Stefano, 38 N.Y.2d 640, 652

17   (1976)).   A defendant cannot be convicted for Attempted

18   Criminal Sale of a Controlled Substance if “several

19   contingencies [stand] between the agreement . . . and the

20   contemplated purchase.”     Warren, 66 N.Y.2d at 833.   The

21   court arrived at that result in Warren notwithstanding that

22   the defendant had met with an undercover officer and


                                    15
1    discussed the quality, quantity, and price of the cocaine

2    purchase that was to take place later.   Id. at 832.

3        As in Warren, “several contingencies [stand] between”

4    Gonzalez’s off-the-cuff statement and a sale of drugs.    The

5    officers therefore lacked probable cause to believe that

6    Gonzalez had attempted to commit either crime.

7                                  B

8        The right to be free from arrest without probable cause

9    was clearly established at the time of Gonzalez’s arrest.

10   See Jenkins v. City of New York, 478 F.3d 76, 86-87 (2d Cir.

11   2007).   Gonzalez’s false arrest claim therefore turns on

12   whether the officers’ probable cause determination was

13   objectively reasonable.   See id.   “An officer’s

14   determination is objectively reasonable if there was

15   ‘arguable’ probable cause at the time of the arrest--that

16   is, if ‘officers of reasonable competence could disagree on

17   whether the probable cause test was met.’”   Id. (quoting

18   Lennon v. Miller, 66 F.3d 416, 423-24 (2d Cir. 1995)).

19   However, “‘[a]rguable’ probable cause should not be

20   misunderstood to mean ‘almost’ probable cause. . . . If

21   officers of reasonable competence would have to agree that

22   the information possessed by the officer at the time of


                                   16
1    arrest did not add up to probable cause, the fact that it

2    came close does not immunize the officer.”     Id.

3        The analysis of probable cause set out above entails a

4    careful parsing of Gonzalez’s statement and a close

5    examination of the elements of a number of different

6    criminal statutes.     Officers charged with making moment-by-

7    moment decisions cannot be expected to undertake such a

8    project.     While Gonzalez’s statement on its own does not

9    satisfy the elements of any crime, he was in an area known

10   for drug sales and he said it to a person obviously trawling

11   for drugs.     (The police could intuit that Matt and Gonzalez

12   were not talking about prostitutes, absinthe, or Cuban

13   cigars.)     Significantly, the experienced state trial judge

14   conscientiously analyzed the probable cause question during

15   the criminal proceeding and concluded that there was indeed

16   probable cause to arrest Gonzalez.

17            We therefore conclude that there was “arguable”

18   probable cause and that the officers are entitled to

19   qualified immunity for Gonzalez’s false arrest claim under

20   § 1983.4

          4
              This conclusion also disposes of Gonzalez’s state
     law false imprisonment claim against the officers because
     “New York Law . . . grant[s] government officials qualified
     immunity on state-law claims except where the officials’
                                     17
1                                 III

2        The search of Gonzalez at the station raises a question

3    as to Gonzalez’s Fourth Amendment right to be free from

4    unreasonable searches.   It is useful to define terms before

5    proceeding to analysis: (1) a “strip search” occurs when a

6    suspect is required to remove his clothes; (2) a “visual

7    body cavity search” is one in which the police observe the

8    suspect’s body cavities without touching them (as by having

9    the suspect to bend over, or squat and cough, while naked);

10   (3) a “manual body cavity search” occurs when the police put

11   anything into a suspect’s body cavity, or take anything out.

12   See People v. Hall, 10 N.Y.3d 303, 306-07 (2008).

13                                 A

14       The law governing these types of searches is far from

15   settled; the rules alter with circumstances, and the

16   circumstances are myriad.   The key precedents turn

17   kaleidoscopically on whether the arrest is for a felony or a

18   misdemeanor, and whether the suspect is placed in the

19   general prison population, among other considerations.



     actions are undertaken in bad faith or without a reasonable
     basis.” Jones v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006);
     see also Blouin ex rel. Estate of Pouliot v. Spitzer, 356
     F.3d 348, 364 (2d Cir. 2004).
                                   18
1           In Schmerber v. California, 384 U.S. 757 (1966), the

2    suspect was hospitalized following a car accident.      Id. at

3    758.    A policeman at the scene smelled alcohol on the

4    suspect’s breath, and inferred from that and other

5    observations that the suspect was drunk.     Id. at 768-69.      At

6    the hospital, the officer made the arrest and instructed a

7    doctor to take a blood sample.      Id. at 758.   The Supreme

8    Court first held that there was probable cause for arrest

9    and for a search incident to arrest.     Id. at 769.   However,

10   the Court held that the search-incident-to-arrest doctrine

11   alone did not justify the drawing of the suspect’s blood;

12   the police needed “a clear indication that in fact such

13   evidence will be found.”    Id. at 669-70.   No warrant was

14   required, though, because of the exigent circumstance that

15   the blood-alcohol concentration would soon dissipate.      Id.

16          In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme

17   Court was asked to decide whether a blanket policy requiring

18   visual body cavity searches for all pretrial detainees being

19   housed in a correctional facility who had seen visitors was

20   constitutional.    Citing Schmerber, the Court held that the

21   constitutionality of this scheme depended on “[1] the scope

22   of the particular intrusion, [2] the manner in which it is



                                    19
1    conducted, [3] the justification for initiating it, and [4]

2    the place in which it is conducted.”    Id. at 559.   The Court

3    concluded that the scheme was reasonable because “[a]

4    detention facility is a unique place fraught with serious

5    security dangers.”   Id.

6        In 1986, we held in Weber v. Dell

 7            that the Fourth Amendment precludes prison
 8            officials from performing strip/body cavity
 9            searches of arrestees charged with misdemeanors or
10            other minor offenses unless the officials have a
11            reasonable suspicion that the arrestee is
12            concealing weapons or other contraband based on
13            the crime charged, the particular characteristics
14            of the arrestee, and/or the circumstances of the
15            arrest.
16
17   804 F.2d 796, 802 (2d Cir. 1986) (emphases added).      In

18   Weber, the suspect was placed in a vacant cell, decreasing

19   the concerns regarding jailhouse safety.   Id. at 799.

20       This rule was later applied in Shain v. Ellison, 273

21   F.3d 56 (2d Cir. 2001).    The plaintiff had been arrested for

22   first degree harassment, a misdemeanor.    Id. at 60.    Relying

23   on Weber, we held that “it was clearly established in 1995

24   that persons charged with a misdemeanor and remanded to a

25   local correctional facility . . . have a right to be free of

26   a strip search absent reasonable suspicion that they are

27   carrying contraband or weapons.”    Id. at 66.


                                    20
1        Prior to the search at issue here, Judge McMahon of the

2    Southern District of New York had decided a number of cases

3    that expanded Weber to arrests for drug-related felonies.

4    In Sarnicola v. County of Westchester, Judge McMahon held

5    that “particularized reasonable suspicion” was required to

6    strip search all suspects, whether they were arrested for

7    misdemeanors or felonies.   229 F. Supp. 2d 259, 270

8    (S.D.N.Y. 2002).   She observed that “[a]n automatic

9    justification for strip searches based on an arrest for a

10   drug-related crime would be inconsistent with the legal

11   concept of reasonable suspicion based on the totality of the

12   circumstances.”    Id. at 273-74.    She ruled to the same

13   effect in Bradley v. Village of Greenwood lake, 376 F. Supp.

14   2d 528 (S.D.N.Y. 2005); Bolden v. Village of Monticello, 344

15   F. Supp. 2d 407 (S.D.N.Y. 2004); and Murcia v. County of

16   Orange, 226 F. Supp. 2d 489 (S.D.N.Y. 2002).     In so holding,

17   Judge McMahon noted that “the Second Circuit has not spoken

18   directly to the appropriate test for the validity of a strip

19   search incident to a felony arrest.”     Sarnicola, 229 F.

20   Supp. 2d at 270; accord Murcia, 226 F. Supp. 2d at 494.

21       In 2008, the New York Court of Appeals decided People

22   v. Hall, 10 N.Y.3d 303 (2008).      In Hall, police observed


                                    21
1    Hall on a street corner repeatedly receive money from

2    someone, go into a nearby bodega, and return a few minutes

3    later with drugs to hand to the customer.    Id. at 305-06.

4    The officers arrested him and strip-searched him at the

5    station prior to placing him with any other prisoners.    Id.

6    When the officers told him to bend over, they saw a string

7    coming out of his rectum.   Id.    When Hall refused to remove

8    it, the officers removed it themselves and found that it was

9    attached to a bag of crack cocaine.    Id.

10       The Hall court began by defining the terminology

11   outlined at the beginning of this Section.    It then held as

12   follows:

13              Summarizing the relevant constitutional precedent,
14              it is clear that a [1] strip search must be
15              founded on a reasonable suspicion that the
16              arrestee is concealing evidence underneath
17              clothing and the search must be conducted in a
18              reasonable manner. To advance to the next level
19              required for a [2] visual cavity inspection, the
20              police must have a specific, articulable factual
21              basis supporting a reasonable suspicion to believe
22              the arrestee secreted evidence inside a body
23              cavity and the visual inspection must be conducted
24              reasonably. If an object is visually detected or
25              other information provides probable cause that an
26              object is hidden inside the arrestee’s body, [3]
27              Schmerber dictates that a warrant be obtained
28              before conducting a body cavity search unless an
29              emergency situation exists. Under our decision in
30              More, the removal of an object protruding from a
31              body cavity, regardless of whether any insertion
32              into the body cavity is necessary, is subject to

                                   22
1                the Schmerber rule and cannot be accomplished
2                without a warrant unless exigent circumstances
3                reasonably prevent the police from seeking prior
4                judicial authorization.
5
6    Id. at 310-11.    The court went on to say, “Our precedent on

7    this point is unequivocal: the police are required to have

8    ‘specific and articulable facts which, along with any

9    logical deductions, reasonably prompted th[e] intrusion.’”

10   Id. at 311 (alteration in original) (quoting People v.

11   Cantor, 36 N.Y.2d 106, 113 (1975)).    However, no case cited

12   by the Hall court said that an officer needs particular,

13   individualized facts to conduct a visual body cavity search.

14       In Florence v. Board of Chosen Freeholders of County of

15   Burlington, 132 S. Ct. 1510 (2012), the Supreme Court again

16   confronted the issue of general prison strip search

17   policies.    In Florence, a mistake in a computer system led

18   police to believe that there was an outstanding warrant for

19   the plaintiff’s arrest.    Id. at 1514.   He was pulled over

20   and arrested pursuant to that warrant.    Id.   In jail,

21   officials performed a visual body cavity search under a

22   blanket policy.    Id.   The Supreme Court, building on Bell v.

23   Wolfish, held that a blanket policy of conducting visual

24   body cavity searches on new inmates was constitutional, even

25   for misdemeanor arrestees where there is no reason to

                                     23
1    suspect that the arrestee would have contraband.    Id. at

2    1520-21.

3        The plaintiff in Florence was placed in a general

4    prison population.   The Court noted, “This case does not

5    require the Court to rule on the types of searches that

6    would be reasonable in instances where, for example, a

7    detainee will be held without assignment to the general jail

8    population and without substantial contact with other

9    detainees.”    Id. at 1522.

10                                 B

11       The officers do not dispute that the search violated

12   Gonzalez’s right to be free from unreasonable searches;

13   their position is that the right violated was not clearly

14   established.   We need not determine whether the facts

15   alleged make out a violation of a constitutional right prior

16   to determining whether that right was clearly established.

17   See Pearson v. Callahan, 555 U.S. 223, 236 (2009)

18   (dispensing with the rule announced in Saucier v. Katz, 533

19   U.S. 194 (2001), that required courts to first determine

20   whether there was a constitutional violation before

21   proceeding to the qualified immunity analysis).    This is

22   especially true here, where the issue was not fully briefed


                                   24
1    by the government.   Id. at 225 (cautioning that courts

2    should not rule on constitutional issues where “the briefing

3    of constitutional questions is woefully inadequate”).

4                                   C

5        Defendants-Appellees are not liable under § 1983 unless

6    the right at issue was clearly established, meaning that

7    “[t]he contours of the right [are] sufficiently clear that a

8    reasonable official would understand that what he is doing

9    violates that right.”   Anderson v. Creighton, 483 U.S. 635,

10   640 (1987).    “In deciding whether a right was clearly

11   established, we ask: (1) Was the law defined with reasonable

12   clarity? (2) Had the Supreme Court or the Second Circuit

13   affirmed the rule? and (3) Would a reasonable defendant have

14   understood from the existing law that the conduct was

15   unlawful?”    Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d

16   Cir. 1998).   The answer to all three is no.

17       At the time of the search, we had never held that the

18   Fourth Amendment is violated by a suspicionless search

19   (strip search or visual body cavity search) of a person

20   arrested for felony drug possession.   Although we have

21   repeatedly held that the police may not conduct a

22   suspicionless strip or body cavity search of a person


                                    25
1    arrested for a misdemeanor, reasonable officers could

2    disagree as to whether that rule applied to those arrested

3    for felony drug crimes, given the propensity of drug dealers

4    to conceal contraband in their body cavities.       See, e.g.,

5    Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th

6    Cir. 1983) (describing “narcotics violations” as one of the

7    “kinds of crimes, unlike traffic or other minor offenses,

8    that might give rise to a reasonable belief that the . . .

9    arrestee was concealing an item in a body cavity”).       Judge

10   McMahon (who seems to have had a full share of these cases)

11   has repeatedly emphasized that we have never applied the

12   rule from Weber and Shain to searches of suspects arrested

13   for felony drug crimes.   See Sarnicola v. Cnty. of

14   Westchester, 229 F. Supp. 2d 259, 270 (S.D.N.Y. 2002);

15   Murcia v. Cnty. of Orange, 226 F. Supp. 2d 489, 494

16   (S.D.N.Y. 2002).

17       The New York Court of Appeals’ decision in People v.

18   Hall, 10 N.Y.3d 303 (2008), does not support the view that

19   the search of Gonzalez violated a clearly established

20   federal constitutional rule.    Hall was decided after the

21   search at issue in this case.        It is not a ruling of the

22   Supreme Court or this Court.    And though the wording in Hall



                                     26
1    seems promising for Gonzalez--“[o]ur precedent on this point

2    is unequivocal: the police are required to have ‘specific

3    and articulable facts which, along with any logical

4    deductions, reasonably prompted th[e] intrusion,’” id. at

5    311 (emphasis added) (alteration in original) (quoting

6    People v. Cantor, 36 N.Y.2d 106, 113 (1975))--not one case

7    cited in Hall said that an officer needs particular,

8    individualized facts to conduct a visual body cavity

9    search.5

10       Shain v. Ellison is similarly distinguishable: the

11   arrest was for first degree harassment, a misdemeanor.   273

12   F.3d 56, 60 (2d Cir. 2001).   A reasonable officer who made a

13   study of these ramified precedents could distinguish arrests

14   for offenses such as harassment from arrests for felonies--

15   especially felonies involving drugs.   In any event, Shain is

16   likely no longer good law in light of Florence v. Board of

17   Chose Freeholders of County of Burlington, 132 S. Ct. 1510,

18   1515 (2012), which held that misdemeanor arrestees could be


          5
             Cantor, the case relied upon in Hall for this
     proposition, does not mention the words “strip search” or
     “body cavity search.” The rule in Hall was characterized as
     a “pronouncement” by the trial court in People v. Crespo,
     reflecting its novelty. 29 Misc. 3d 1203(A), at *8 (N.Y.
     Sup. Ct. 2010).

                                   27
1    subject to visual body cavity searches before being placed

2    in the general prison population, as the plaintiff in Shain

3    was.    Shain, 273 F.3d at 60, 65-66.

4           While we can expect police officers to be familiar with

5    black-letter law applicable to commonly encountered

6    situations, they cannot be subjected to personal liability

7    under § 1983 based on anything less.    There are so many

8    permutations of fact that bear upon the constitutional

9    issues of a search: the arrest can be for a misdemeanor or a

10   felony, for a drug offense or not; the search can be a strip

11   search, a visual body cavity search, or a manual one; the

12   person arrested can be headed to the general prison

13   population or a single cell; the place of the search can be

14   private or less than private; the impetus for the search can

15   be a tip, or the policeman’s observations or experience or

16   hunch, or the neighborhood, or a description, or some or all

17   of the above; and other considerations as well.    The

18   policeman is not expected to know all of our precedents or

19   those of the Supreme Court, or to distinguish holding from

20   dicta, or to put together precedents for line-drawing, or to

21   discern trends or follow doctrinal trajectories.    Otherwise,

22   qualified immunity would be available only to a cop who is a



                                    28
1    professor of criminal procedure in her spare time.    The

2    police cannot be expected to know such things at risk of

3    personal liability for the policeman’s savings, home equity,

4    and college funds.   And such personal liability is the only

5    kind of liability imposed by § 1983 (absent a Monell claim).

6    That tells us something about the threshold of liability in

7    these cases.6

8        We conclude that a reasonable officer--even one

9    familiar with the cases described above--would not have

10   understood that conducting an otherwise suspicionless visual

11   body cavity search of a person arrested for a felony drug

12   offense was unlawful; the defendants in this case are

13   therefore entitled to qualified immunity.7

          6
               The premise--that a suit against an individual
     government employee is in substance a suit against his
     employer--is wrong. Doubtless in some political subdivisions
     of this Circuit the government supplies defense counsel and
     pays the judgment if an officer is personally liable under
     § 1983. But this Circuit includes scores of counties and
     hundreds of towns and municipalities; and there are
     thousands of political subdivisions in the nation. Not all
     of them will indemnify their employees for § 1983 judgments;
     many cannot even afford to furnish a defense; some can
     barely keep the school open.
          7
              Gonzalez also alleges that the defendants violated
     his Fourth Amendment rights when they conducted a manual
     body cavity search and pulled the bag of crack cocaine out
     of Gonzalez’s anus. Who pulled the bag out is disputed, but
     even assuming it was the officers, they would not have
     violated clearly established law by doing so; once they saw
                                   29
1                                    IV

2        Gonzalez also claims malicious prosecution under

3    § 1983.   A § 1983 claim for malicious prosecution looks to

4    the relevant state common law.        See Janetka v. Dabe, 892

5    F.2d 187, 189 (2d Cir. 1989).        Under New York law, a

6    plaintiff must show that the underlying proceeding was

7    terminated in his favor to make out a malicious prosecution

8    claim.    See id. at 189.   “Where the prosecution did not

9    result in an acquittal, it is deemed to have ended in favor

10   of the accused, for these purposes, only when its final

11   disposition is such as to indicate the innocence of the

12   accused.”    Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997).

13       Here, the officers found crack cocaine in Gonzalez’s

14   rectum, eliminating any doubt that Gonzalez was, in fact,

15   guilty of at least criminal possession of a controlled

16   substance.   His malicious prosecution claim therefore fails.

17




     the bag protruding from Gonzalez’s anus, they had probable
     cause to search him for it, and we have never held that such
     a search requires a warrant. Cf. Hall, 10 N.Y. 3d at 310-
     11.
                                     30
1                            CONCLUSION

2       For the foregoing reasons, the judgment of the district

3   court dismissing all of Gonzalez’s claims against the

4   officers in their individual capacities is AFFIRMED.




                                 31
    POOLER, Circuit Judge, dissenting:

1          I concur in the majority opinion in its statements of controlling law and its

2   conclusions as to Part I, II,1 and IV. I respectfully dissent however, as to Part III, because

3   I believe that the relevant rule regarding body cavity searches was clearly established, as

4   it was clearly foreshadowed as a federal constitutional right, prior to Gonzalez’s arrest.


           1
             Although I agree with the majority’s conclusion in Part II, that arguable probable
    cause exists in this instance, I must stress: this is a close case. Arguable probable cause
    exists where “officers of reasonable competence could disagree on the legality of [their]
    action [in this] particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.
    2007) (internal quotation marks omitted). Where the “only facts known to the officers at
    the time of the arrest,” were that (1) the location was known for drug sales and (2)
    Gonzalez said he could get drugs, see Maj. Op. at 11 (emphasis added), the question of
    arguable probable cause is indeed a close question. If the officers had not been able to
    rely on the second factor, that Gonzalez said he could get drugs, officers of reasonable
    competence could not disagree on the illegality of their action.
           Officers must rely on something more than the location’s reputation in order to
    find reasonable suspicion. See Holeman v. City of New London, 425 F.3d 184, 190 (2d
    Cir. 2005) (stating that driving in circuitous route in high-crime area at 4:30 a.m. not
    enough, standing alone, to support reasonable suspicion); United States v. McCargo, 464
    F.3d 192, 197 (2d Cir. 2006) (“Reasonable suspicion requires considerably less of a
    showing than probable cause.”). If a location’s reputation as a “high crime area” is not
    enough to advance reasonable suspicion, a location’s reputation as a “high drug area”
    certainly cannot be enough to suggest probable cause, without more information.
    Although officers are allowed to take a location’s reputation into consideration, see
    United States v. Muhammad, 463 F.3d 115, 122-23 (2d Cir. 2006), it must be coupled
    with some other indication, such as flight from the scene, see id., or the prevalence of
    drug sales at a particular address in order to conclude that arguable probable cause
    existed. See Martinez v. City of Schenectady, 115 F.3d 111 (2d Cir. 1997) (concluding
    probable cause existed where officers previously knew about drug sales from plaintiff’s
    specific apartment address).
           In this case, the general location’s prevalence in drug sales can therefore not be
    enough to create arguable probable cause or else all residents who live in high drug or
    high crime areas would be vulnerable to arbitrary arrest. Nonetheless, I agree that we
    may conclude arguable probable cause existed in this instance because the officers in this
    case could couple the location’s reputation with Gonzalez’s statement.

                                                  1
 1                                               I.

 2          To determine whether a right was clearly established2 we look to “(1) whether the

 3   right in question was defined with ‘reasonable specificity’; (2) whether the decisional law

 4   of the Supreme Court and the applicable circuit court support the existence of the right in

 5   question; and (3) whether under preexisting law a reasonable defendant official would

 6   have understood that his or her acts were unlawful.” Shechter v. Comptroller of City of

 7   N.Y., 79 F.3d 265, 271 (2d Cir. 1996) (internal quotation marks omitted). “If the law at

 8   that time was not clearly established, an official could not reasonably be expected to

 9   anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the

10   law forbade conduct not previously identified as unlawful.” Harlow v. Fitzgerald, 457

11   U.S. 800, 818 (1982).

12



            2
               In resolving the question of qualified immunity, a court must decide whether the
     alleged conduct was a violation of a constitutional right and whether the right at issue was
     “clearly established” at the time of defendant’s alleged misconduct. Saucier v. Katz, 533
     U.S. 194, 201 (2001). Here, no one disputes that the search violated Gonzalez’s right to
     be free from unreasonable searches; the defendant’s position is only that the right violated
     was not clearly established. After Gonzalez was arrested he was told to get on the floor
     and was searched, but the pat down yielded nothing. Plaintiff was handcuffed and taken
     to police headquarters, where police conducted a full cavity search. Officers stated that
     Gonzalez was subjected to this search only because he was arrested on a narcotics
     offense. According to the Schenectady Police Department’s policy, police required
     Gonzalez to undress completely, turn around, put his hands on the wall, spread his feet,
     and use his hands to spread his buttocks. Before taking off his boxers, officers had not
     identified any contraband. Only after spreading his buttocks, officers located and
     removed a bag with drugs. The parties disagree as to whether the officers or Gonzalez
     removed the bag.

                                                  2
 1          This is not to say that an action is clearly established only if the court has explicitly

 2   held that the behavior is unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987). We

 3   have repeatedly held a law is considered clearly established if decisions of the Supreme

 4   Court or this Court “clearly foreshadow a particular ruling on the issue.” Varrone v.

 5   Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (internal quotation marks omitted) (emphasis

 6   added). See also id. at 79 (quoting Shabazz v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988)

 7   (stating in “the absence of a specific authority directly on point” we look to whether this

 8   Circuit or the Supreme Court had presaged the particular ruling). We have taken special

 9   care to apply this “clearly foreshadowed” standard in the context of the Fourth

10   Amendment, see Varrone, 123 F.3d at 78; see also Shabazz, 852 F.2d at 701, which “is

11   not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S.

12   520, 559 (1979).

13                                                 II.

14          Here, the relevant question is whether the heightened standard for an anal body

15   cavity search of a felony arrestee was clearly foreshadowed by this Circuit or the

16   Supreme Court, at the time of Gonzalez’s search in 2006.3 The New York State

17   Appellate Division initially found that the officer’s had not met the heightened reasonable

18   suspicion standard to justify Gonzalez’s visual cavity search, indicating that the Appellate


            3
              The majority states that the question here regards a strip search or visual body
     cavity search. According to the Appellees, Gonzalez himself removed the bag from his
     buttocks. According to the Gonzalez, one of the officers removed the bag from his
     buttocks.

                                                    3
 1   Division believed the rule was clearly established. People v. Gonzalez, 57 A.D.3d 1220,

 2   1222 (N.Y. App. Div. 2008). The district court concluded differently, stating that the law

 3   requiring a more stringent standard for body cavity searches had not been clearly

 4   established until People v. Hall, 10 N.Y.3d 303, 310-11 (2008) subsequent to Gonzalez’s

 5   arrest. Gonzalez v. City of Schenectady, No. 09-cv-1434,2011 WL 6010910, at *4

 6   (N.D.N.Y. Nov. 30, 2011). The majority agrees with the district court, to the extent that it

 7   states, “[t]he law governing these types of searches is far from settled; the rules alter with

 8   circumstances, and the circumstances are myriad.” However, the majority fails to apply

 9   the correct test. Regardless of whether the Supreme Court or this Circuit directly held

10   this rule, it was undoubtedly foreshadowed previous to Gonzalez’s arrest, thus, I must

11   disagree with the majority’s conclusion in Part III.

12          Both the Supreme Court and this Circuit have held that police searches within the

13   body require a special heightened standard. In Schmerber v. California, 384 U.S. 757

14   (1966), the Supreme Court held that intrusions beyond the body’s surface are forbidden

15   by the Fourth Amendment in the absence of clear indication that the evidence will be

16   found. Id. at 770. In that case, the Court held that probable cause to search a drunk

17   driver did not justify the more intrusive drawing of the suspect’s blood. Id. “[I]nterests

18   in human dignity and privacy which the Fourth Amendment protects forbid any such

19   intrusions on the mere chance that desired evidence might be obtained.” Id. at 769-70.

20   See also Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14 (1989) (“The [Fourth]

21   Amendment guarantees the privacy, dignity, and security of persons against certain

                                                   4
 1   arbitrary and invasive acts by officers of the Government or those acting at their

 2   direction.”) Thus, “[i]n the absence of a clear indication4 that in fact such evidence will

 3   be found, these fundamental human interests require law officers to suffer the risk that

 4   such evidence may disappear unless there is an immediate search.” Schmerber, 384 U.S.

 5   at 770.

 6             In Bell, 441 U.S. 520, the Supreme Court extended this rule to body cavity

 7   searches. There, the Court held that policies requiring pretrial detainees be given visual

 8   body cavity searches after having seen a visitor may be constitutional. Id. at 560.

 9   However, Bell still recognized pretrial detainees retain some Fourth Amendment rights.

10   Id. at 558; see also id. at 545 (“we have held that convicted prisoners do not forfeit all

11   constitutional protections by reason of their conviction and confinement in prison”).

12   Vigilant of these privacy interests and Schmerber, the Court concluded these “searches

13   must [still] be conducted in a reasonable manner.” Id. at 560 (citing Schmerber, 384 U.S.

14   at 771-72). The test for reasonableness requires courts to consider “the scope of the

15   particular intrusion, the manner in which it is conducted, the justification for initiating it,

16   and the place in which it is conducted.” Id. at 559.5

17


               4
              The Court clarified a “clear indication” to mean “the necessity for particularized
     suspicion that the evidence sought might be found within the body of the individual.”
     United States v. Montoya De Hernandez, 473 U.S. 531, 540 (1985).
               5
             The Court in Bell did not speak to the issue of whether arrestees were subject to
     the same standard.

                                                    5
 1          Following Bell, this Circuit and others were wary to uphold body cavity searches

 2   as constitutional, under the test for reasonableness. The Circuits hesitated, stating that

 3   such searches are invasive and degrading. See Hartline v. Gallo, 546 F.3d 95, 102 (2d

 4   Cir. 2008); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)

 5   (recognizing “strip searches involving the visual inspection of the anal and genital areas

 6   as ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant,

 7   embarrassing, repulsive, signifying degradation and submission”); see also Arruda v.

 8   Fair, 710 F.2d 886, 887 (1st Cir. 1983). In fact, the Supreme Court agreed with this

 9   depiction, stating that body cavity searches were the “most intrusive” of all searches.

10   Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 672 (1995). As stated in a related Fourth

11   Amendment case, the general consensus was that, “[s]uch an invasion of bodily integrity

12   implicates an individual’s most personal and deep-rooted expectations of privacy.”

13   Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (internal quotation marks omitted).

14          Thus, for over two decades, this Circuit understood that cavity searches for

15   misdemeanants would be unjustified unless they satisfied the heightened standard. Weber

16   v. Dell, 804 F.2d 796, 802 (2d Cir. 1986). In Weber, we stated that the Supreme Court

17   had not “read out of the Constitution the provision of general application that a search be

18   justified as reasonable under the circumstances.” Id. at 800. Nor had it “free[d] prison

19   officials from all Fourth Amendment constraints.” Id. Thus, we held that a strip search

20   of a misdemeanor arrestee is unlawful unless there is “reasonable suspicion that the

21   arrestee is concealing weapons or other contraband based on the crime charged, the

                                                   6
 1   particular characteristics of the arrestee, and/or the circumstances of the arrest.” Id. at

 2   802.6

 3           Following Weber, for years this Circuit has repeatedly affirmed the rule that body

 4   cavity searches, particularly for misdemeanants, must be justified by an individualized

 5   reasonable suspicion. See Hartline, 546 F.3d at 100-01 (quoting Weber, 804 F.2d at 802)

 6   (citing persuasive authority for the proposition that “it is [not] reasonable to strip search

 7   every inmate booked on a drug related charge” and reasoning that otherwise “strip

 8   searches will become commonplace”); see also Kelsey v. Cnty. of Schoharie, 567 F.3d 54,

 9   62 (2d Cir. 2009) (reiterating the Circuit’s “long-standing precedent covering strip

10   searches for those arrested for misdemeanors” and collecting cases) (citations omitted);

11   N.G. v. Connecticut, 382 F.3d 225, 232 (2d Cir. 2004) (noting that “all the circuits to have

12   considered this issue have reached the same conclusion”); Shain v. Ellison, 273 F.3d 56,

13   64-65 (2d Cir. 2001); Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994);

14   Walsh v. Franco, 849 F.2d 66, 68-69 (2d Cir. 1988). For example, in Shain, we held “it

15   was clearly established in 1995 that persons charged with a misdemeanor and remanded

16   to a local correctional facility . . . have a right to be free of a strip search absent

17   reasonable suspicion that they are carrying contraband or weapons.” 273 F.3d at 66. We


             6
               In essence, this standard required more than an “inchoate and unparticularized
     suspicion or ‘hunch.’” Terry v. Ohio, 392 U.S. 1, 27 (1968). Instead, the reasonable
     suspicion standard requires individualized suspicion, specifically directed to the person
     targeted for the strip search, and reasonable cause to believe that drugs or other
     contraband are concealed in the particular place to be searched with some indicia of
     reliability. Hartline, 546 F.3d at 100.

                                                     7
 1   concluded the county’s “visual body cavity search” of a misdemeanant absent reasonable

 2   suspicion violated the Fourth Amendment. Id.

 3          Despite these consistent rulings rejecting the constitutionality of body cavity

 4   searches, appellees and the majority persist in arguing that the rule was not clearly

 5   foreshadowed, because in this case Gonzalez was arrested for a felony, and the Second

 6   Circuit cases deal exclusively with misdemeanors. Appellees argument fails, however,

 7   because this Court and the Supreme Court had both clearly foreshadowed that the

 8   heightened standard applied regardless of a person’s status.

 9          In Shain, we recognized, “we long had stressed the intrusive nature of body cavity

10   searches.” Id. at 63. In addition to this guiding principle, we stated that whether our

11   heightened standard applied to felony arrestees was at least an open issue, id. at 64,7 and

12   intimated that if this Circuit was asked that question, we would likely resolve it in

13   Gonzalez’s favor given that status should not affect a person’s rights, id. at 66 n.3.8

14   Although not explicitly held, this suggestion was echoed by the Supreme Court’s in

15   Tennessee v. Garner, 471 U.S. 1, 14 (1985), which undermined the distinction between a

16   felon and a misdemeanant as “untenable.” Thus, this Court and the Supreme Court both

17   suggested that all body cavity searches must be conducted according to a heightened


            7
              Though we did also state, “[t]here is no basis for concluding that pretrial
     detainees pose any lesser security risk than convicted inmates.” Shain, 273 F.3d at 64 n.2
            8
              In a footnote, we stated that “we do not rely solely on Shain’s status as a pretrial
     detainee” in order to find that this search violated the Fourth Amendment. Shain, 273
     F.3d at 66 n.3.

                                                   8
 1   standard regardless of a person’s arrestee status. As Appellees admit in their brief, “the

 2   distinction between the types of searches was evolving” in this direction. Appellees’ Br.

 3   at 16.

 4            Guided by these cases, the Southern District of New York came to this exact

 5   conclusion. It held that, the language of the Supreme Court and this Circuit

 6   foreshadowed that the stringent standard for body cavity searches applies to felony

 7   arrestees as well as misdemeanants. See Sarnicola v. Cnty. of Westchester, 229 F. Supp.

 8   2d 259 (S.D.N.Y. 2002); Murcia v. Cnty. of Orange, 226 F. Supp. 2d 489 (S.D.N.Y.

 9   2002); Dodge v. Cnty. of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002).9 In Murcia, the district

10   court, like the majority here, acknowledged that “the Second Circuit has not spoken

11   directly to the appropriate test for the validity of a strip search.”

12            However, unlike the majority, it correctly asked if this rule was clearly

13   foreshadowed despite “the absence of specific authority directly on point.” Varrone, 123

14   F.3d at 79. Applying that analysis, the district court observed that this “Circuit has held

15   blanket policies subjecting all newly-arrested misdemeanor detainees in a local

16   correctional facility to visual body cavity searches are unconstitutional.” Murcia, 226 F.


              9
               The majority tries to disclaim these holdings because they were decided by a
     single judge in the Southern District of New York. However, I know of no case law
     which holds that the singularity of a judge undermines the weight of the decision.
     Regardless this judge was not alone. Other judges in our district courts have observed
     this rule. See Sims v. Farrelly, No. 10 Civ. 4765, 2013 WL 3972460, at *8 (S.D.N.Y.
     Aug. 2, 2013); Sorrell v. Inc. Vill. of Lynbrook, 2012 WL 1999642, at *6 (E.D.N.Y. June
     4, 2012); McBean v. City of New York, 260 F.R.D. 120, 130 (S.D.N.Y. 2009); Harriston
     v. Mead, No. 05 CV 2058, 2008 WL 4507608, at *3 (E.D.N.Y. Sep 30, 2008).

                                                     9
 1   Supp. 2d at 493. The Murcia court also stated that the Supreme Court wrote in Garner

 2   that, “[i]n the context of Fourth Amendment searches and seizures . . . the distinction

 3   between felonies and misdemeanors is minor and often arbitrary,” Id. at 494 (internal

 4   quotation marks omitted).9 It concluded,

 5          Coupling [the Supreme Court’s] words with the Second Circuit’s strong statements
 6          about constitutional protections for strip searches of accused misdemeanants,
 7          [allows for the conclusion] that the law in this Circuit does not countenance a
 8          policy mandating strip searches of all felony arrestees simply because they stand
 9          accused of felonies.
10
11   Id. at 494. Having correctly determined we “clearly foreshadowed” the rule, the court

12   then held, “[t]he ‘individualized reasonable suspicion’ rule should apply to accused felons

13   as well as misdemeanants upon arrival at a local correctional facility.” Id.

14          In Sarnicola, the lower court once again came to the same conclusion. It stated

15   that although this “Circuit ha[d] not spoken directly to the appropriate test for the validity

16   of a strip search incident to a felony arrest, [the district court in Murcia] recently opined

17   that the Court of Appeals would apply the particularized reasonable suspicion test to

18   searches of felony arrestees as well” because “[i]n the sixteen years following Weber, the

19   Second Circuit has firmly held that strip searches of persons lawfully arrested for minor

20   infractions (misdemeanors and violations) must be justified by an individualized

21   reasonable suspicion of concealed weapons or contraband.” Sarnicola, 229 F. Supp. 2d at


            9
              The district court also cited to Garner for the proposition that “[m]any crimes
     classified as misdemeanors, or nonexistent, at common law are now felonies,” and
     “numerous misdemeanors involve conduct more dangerous than many felonies.” Murcia,
     226 F. Supp. 2d at 494.

                                                   10
 1   269-70. The lower court also observed that the Supreme Court had previously stated that

 2   “the assumption that a ‘felon’ is more dangerous than a misdemeanant [is] untenable.”

 3   Id. at 270 n.4 (citing Garner, 471 U.S. at 14). Thus, finding the rule had already been

 4   forecast, it stated that “no constitutional prerogative [exists in creating a distinction for

 5   felony arrests in order to] strip search individuals in the absence of particularized

 6   reasonable suspicion that they are carrying drugs or contraband.” Id. at 270.

 7          In these cases, the district court drew from the principles and inferences made by

 8   our Circuit and the Supreme Court for nearly two decades to deduce the foreshadowed

 9   conclusion that the individualized reasonable suspicion rule should apply to searches so

10   intrusive regardless of a person’s status.

11          The district court was not alone in its deduction. In People v. More, 97 N.Y 2d

12   209, 214 (2002), and then People v. Hall, 10 N.Y.3d 303, 310-11 (2008), the New York

13   Court of Appeals also found that an anal cavity search of a felony arrestee had to meet a

14   heightened standard. In More, officers arrested a defendant in his home in close

15   proximity to what appeared to be drugs. More, 97 N.Y.2d at 212. The initial “pat-down”

16   yielded no evidence of drugs, but, regardless, police conducted an anal cavity search. Id.

17   The New York Court of Appeals held the body cavity search of defendant incident to his

18   arrest was unreasonable and invalid, and drugs seized from his rectum must be suppressed

19   because the Fourth Amendment requires a “clear indication” that contraband will be

20

21

                                                    11
 1   found, in order to make the more intrusive search, “beyond the body’s surface.” Id. at

 2   212-13.10

 3          In Hall, the New York Court of Appeals once again held that “because a manual

 4   cavity search is more intrusive” a heightened standard must exist, regardless of a person’s

 5   felony status. Hall, 10 N.Y.3d at 310-11. The court stated,

 6          To advance to the next level required for a visual cavity inspection, the police must
 7          have a specific, articulable factual basis supporting a reasonable suspicion to
 8          believe the arrestee secreted evidence inside a body cavity and the visual
 9          inspection must be conducted reasonably. If an object is visually detected or other
10          information provides probable cause that an object is hidden inside the arrestee’s
11          body, Schmerber dictates that a warrant be obtained before conducting a body
12          cavity search unless an emergency situation exists.

13   Id. The court noted that “visual cavity inspections . . . cannot be routinely undertaken as

14   incident to all drug arrests or permitted under a police department’s blanket policy that

15   subjects persons suspected of certain crimes to [this] procedure[].” Id. at 311.

16          Despite Supreme Court precedent and over two decades of this Circuit’s case law

17   rejecting cavity searches, the district court stated and Appellees still contend that the rule




            10
               Since then, state courts have continued to hold that rule. For example, more
     recently, that rule was applied in a case with a similar fact pattern to the case at hand. In
     People v. Robinson, the Supreme Court of New York County found that although police
     had probable cause to arrest the defendant after observing him sell cocaine, the police’s
     strip search was unreasonable. People v. Robinson, 39 Misc. 3d 1234(A), at *3 (N.Y.Sup.
     Ct. 2013) (“There was no evidence that the [search] was based on any particularized facts
     that led police to believe that this particular defendant was concealing evidence beneath
     his clothes.”)

                                                   12
 1   was not clearly established until Hall, 10 N.Y.3d at 310-11.11 Regardless of Hall, the rule

 2   established therein was already clearly suggested by the Supreme Court and presaged by

 3   this Circuit. As the majority states, “we have repeatedly held that police may not conduct

 4   a suspicionless strip or body cavity search.” Even if no federal case prior to Hall stated

 5   the rule as explicitly applying to felony arrestees, the waterfall of decisions from

 6   Schmerber to Weber to Shain to Murcia made Hall’s and Sarnicola’s ultimate results a

 7   fait accompli–as reflections of this Circuit’s developing case law. In addition, even

 8   Appellees are in accord with the district court and the New York Court of Appeals,

 9   recognizing that the rule on searches was “evolving” in this direction. Appellees’ Br. at

10   16. We have held that such foreshadowing requires the rule to be deemed clearly

11   established. See Varrone, 123 F.3d at 78-79; Scott v. Fischer, 616 F.3d 100, 105 (2d Cir.

12   2010). Accordingly, where the Supreme Court and this Court clearly foreshadowed a


            11
               The majority correctly clarifies the present question is not just whether there was
     a clearly established rule but whether there was a clearly established federal constitutional
     right. Therefore, Hall is not determinative. But what the majority fails to notice is that
     Hall stated it was only reaffirming pre-existing law of the Supreme Court. The New
     York court recognized, “the rule announced in Schmerber is unequivocal . . . searches
     involving intrusions beyond the body’s surface” require some stricter standard. Hall, 10
     N.Y.3d at 313 (citing Schmerber, 384 U.S. at 769). Hall thus clarified it was not a new
     rule but a directive from the Supreme Court’s holding in Schmerber. Id. at 310
     (“Schmerber . . . dictates that a more stringent standard be applied to a physical search of
     an arrestee’s body cavity”). Moreover, that case opined that the state court had itself
     adopted this rule previously in More. The Hall court stated, “[in o]ur most recent
     decision addressing a search into a person’s body[,] People v. More, 97 N.Y.2d 209
     (2002) . . . . We recognized that a search of this nature was at least as intrusive as the
     blood test procedures in Schmerber . . . [and] we held that the removal of the object from
     the defendant’s rectum without prior judicial authorization violated the Fourth
     Amendment.” Hall, 10 N.Y.3d at 310 (internal quotation marks and alteration omitted).

                                                  13
 1   ruling on the issue, and other courts have also acknowledged this outcome, we should

 2   conclude that the rule was clearly established.

 3                                                 III.

 4          Moreover, “[e]ven in the absence of binding precedent, a right is clearly

 5   established if the contours of the right are sufficiently clear that a reasonable official

 6   would understand that what he is doing violates that right. The unlawfulness must be

 7   apparent.” Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (citing Anderson,

 8   483 U.S. at 640) (internal quotation marks and alterations omitted). “Officials are held to

 9   have constructive knowledge of established law.” Salahuddin v. Coughlin, 781 F.2d 24,

10   27 (2d Cir. 1986).

11          The majority admits “we have repeatedly held that police may not conduct a

12   suspicionless strip or body cavity search” and also that “we can expect police officers to

13   be familiar with black-letter law.” It further states, “[t]he officers do not dispute that the

14   search violated Gonzalez’s right to be free from unreasonable searches.” However, still it

15   somehow concludes that “reasonable officers could disagree as to whether that rule

16   applied to those arrested for felony drug crimes.” I do not agree. An objectively

17   reasonable officer, familiar with our case law, would certainly have understood that

18   conducting Gonzalez’s suspicionless body cavity search was unlawful. In addition to

19   cases in this Circuit having consistently affirmed that cavity searches require heightened

20   particularity, Hall pronounced, “[o]ur precedent on this point [as to felony arrestees] is

21   unequivocal,” Hall, 10 N.Y.3d at 311, thus demonstrating that officers with presumed

22   knowledge of the law were clearly on notice.

                                                   14
 1          In addition the initial search and pat down revealed no protruding object. Without

 2   more particularized suspicion—that the evidence sought was likely to be found within

 3   Gonzalez’s body—no officer could have concluded the cavity search was reasonable.

 4   Unlike other circumstances where a “small hard object” was detected in a defendant’s

 5   initial strip search, Gonzalez’s initial strip search did not reveal any hard objects. Cf.

 6   People v. Clayton, 57 A.D.3d 557, 558 (N.Y. App. Div. 2008). Therefore, as in

 7   Schmerber, absent some more, clear indication of Gonzalez harboring drugs or other

 8   paraphernalia, the cavity search was a clear violation of plaintiff’s Fourth Amendment

 9   rights, such that no officer could find it reasonable.

10          The facts here are also distinguishable from Clayton, 57 A.D.3d 557, where the

11   searching officer testified that the defendant had a history of secreting contraband. Id. at

12   559. Here, “Gonzalez was not a target of the police’s buy bust operation.” Gonzalez,

13   2011 WL 6010910, at *1 n.1. Therefore, we may assume the police had no background

14   information on Gonzalez, his connection to the drug trade, or his history as to secreting

15   contraband. Thus, the officers lacked requisite information for the body cavity search to

16   be considered reasonable and unjustifiably still conducted a suspicionless search.

17          Here, the only thing giving police suspicion that Gonzalez was secreting

18   contraband was “defendant’s statement that he could get” drugs, having said, “I can get

19   you whatever you need.” However, that statement did not explain 1) what kind of drugs;

20   2) what amount; or 3) when the sale would occur. As the Appellate Division in this case

21   stated, “[Gonzalez’s] representation that he could ‘get you whatever you need’ was vague

                                                   15
 1   as to whether he actually possessed narcotics at the time and did not provide a specific,

 2   articulable basis to prompt the visual cavity inspection.” Gonzalez, 57 A.D.3d at 1222.

 3   In fact, Gonzalez’s use of the future tense suggests the opposite conclusion, that he had

 4   no drugs on his person and therefore could get it if requested. See Schmerber, 384 U.S. at

 5   769-70 (“the Fourth Amendment . . . forbid[s] any such intrusions on the mere chance

 6   that desired evidence might be obtained.”)

 7          Moreover, even accepting that the strip search of the defendant was in accordance

 8   with police procedure, that, too, does not excuse police who should have known that to

 9   perform a strip search of the defendant absent reasonable suspicion was unjustified. See

10   Hartline, 546 F.3d at 100-01 (“even if there were a departmental policy of strip searching

11   all arrestees without making any assessment of particularized circumstances, the relevant

12   question is still: Do the circumstances of [the] arrest support a reasonable suspicion that

13   she was secreting contraband on her person?”).

14          Accordingly, where the unlawfulness was “apparent,” Anderson, 483 U.S. at 640,

15   and the searching officers suspicion was based on “vague” information, an objectively

16   reasonable person in the officer’s position should have known that this conduct was

17   unreasonable and qualified immunity should therefore not apply.

18                                                IV.

19          The gross violation of personal privacy cannot be outweighed by the government’s

20   interest where only a mere chance existed that the desired evidence would be obtained.

21   “There is no iron curtain drawn between the Constitution and the prisons of this country.”

                                                  16
 1   Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). Included in those constitutional rights

 2   “when it comes to the Fourth Amendment,” is the rule that “the home is the first among

 3   equals.” Florida v. Jardines, 33 S. Ct. 1409, 1413-14 (2013). It is at the Amendment’s

 4   “‘very core.’” Id. As a person’s body is the ultimate home, it must be at the nucleus of

 5   the Amendment. Thus, an invasion into the body is just as much—if not even

 6   more—extreme in practice than an intrusive entry into a home. See United States v.

 7   Martinez-Fuerte, 428 U.S. 543, 561 (1976) (explaining that body searches are “ordinarily

 8   afforded the most stringent Fourth Amendment protection”). In fact, the Court has

 9   recently reaffirmed its commitment to the reasonableness inquiry and Schmerber rule, as

10   touchstones of the Fourth Amendment analysis. See McNeely, 133 S. Ct. at 1565. (“We

11   have never retreated, however, from our recognition that any compelled intrusion into the

12   human body implicates significant, constitutionally protected privacy interests.”)

13          Therefore, these protections stand regardless of a person’s arrestee status. The

14   proscription against unreasonable body cavity searches, held as a consistent and core rule

15   of the Fourth Amendment, should not be ignored simply because of an arbitrary

16   distinction as to a person’s status. To hold otherwise suggests that body cavity searches

17   are so commonplace that we do not treat them as the ultimate invasive search. See

18   Veronia, 515 U.S. at 672 (stating these are the “most intrusive searches”). Such a

19   conclusion is unacceptable in any society that takes privacy, dignity, and bodily integrity

20   seriously.

21

                                                  17
1                                          V.

2   For these reasons, I respectfully dissent as to Part III of the majority’s opinion.

3




                                           18
