                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-1745
                                     ___________

Lonnie Foster,                            *
                                          *
              Plaintiff-Appellant,        *
                                          *
      v.                                  *
                                          *
Roger Lawson;                             *
                                          *
              Defendant-Appellee,         *
                                          *
John Doe;                                 * Appeal from the United States
                                          * District Court for the Southern
              Defendant,                  * District of Iowa.
                                          *
Scott Hawk;                               *      [PUBLISHED]
                                          *
              Defendant-Appellee,         *
                                          *
James Helling; Charles Harper;            *
Rick Larkin;                              *
                                          *
              Defendants,                 *
                                          *
Scott Bryant,                             *
                                          *
              Defendant-Appellee.         *
                                     ___________

                              Submitted: May 13, 2002

                                     Filed: May 30, 2002
                                    ___________

Before McMILLIAN, FAGG, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

       Iowa inmate Lonnie Foster contends prison officials violated his civil rights
when they searched his legal materials outside his presence. After Foster’s claim was
originally dismissed, Foster appealed, and this court remanded for further findings
about whether there was a legitimate penological reason for the search. The district
court* then conducted a bench trial, made factual findings about the search, and
concluded Foster’s civil rights were not violated by the search. Foster appeals and
we affirm.

      First, Foster claims the district court committed clear error when it found Foster
knew about the prison’s search policy that inmates should keep their legal and
nonlegal papers separate. See Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002)
(standard of review). At trial, the following exchange occurred between the
government’s attorney and Foster:
      Mr. Hill: Mr. Foster, are you familiar with the rules of the search of inmate
              property within the Iowa prison system?
      Mr. Foster: Yes, I am.
      Q:      And you’re aware there’s a distinction between both personal and legal
              materials, correct?
      A:      Yes.
      Q:      And legal materials are searched differently than personal materials,
              correct?
      A:      Yes. . . .

      *
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.

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      Q:     You knew these rules regarding inmate searches and you knew that
             personal and legal materials were searched differently on June 23, 1998?
      A:     Yes.

(Tr. 30-31.) We conclude the district court’s finding that Foster knew of the legal
paper segregation policy was free from clear error.

       Second, Foster argues the district court committed clear error when it found
Foster misled prison officials by claiming his two locker boxes (the subject of the
search) contained only legal materials. See Randolph, 276 F.3d at 403 (standard of
review). An Iowa prison official testified it was an “ongoing problem” at the time
Foster’s belongings were searched that “some inmates got the idea that if they
declared something to be legal, we couldn’t undeclare it, they could make us. . . make
a search of it all in front of them.” (Tr. 66.) Foster’s two locker boxes did contain
legal materials–but also mixed in were twelve personal letters, thirty-three magazines,
and numerous other pieces of nonlegal material. An administrative law judge
concluded Foster should be disciplined for providing false information about the
contents of his locker boxes in an attempt to impede the prison officials’ search. We
conclude the district court did not commit clear error by finding Foster misled prison
officials about the contents of his two locker boxes.

       Third, Foster contends the district court committed clear error when it found
prison officials separated Foster’s legal from nonlegal materials and did not search
the legal materials outside Foster’s presence. See Randolph, 276 F.3d at 403
(standard of review). The prison officials’ reports and testimony establish that after
the prison officials realized Foster’s legal and nonlegal materials were mixed
together, the officials removed all materials from Foster’s presence and separated the
legal materials from the nonlegal materials. The officials then left the legal materials
in Foster’s two locker boxes and took the nonlegal materials to the investigation
office where the nonlegal materials alone were thoroughly searched. A prison official

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testified the legal materials were later searched in Foster’s presence. Because Foster
does not present any evidence to the contrary, we conclude the district court’s finding
is not clearly erroneous.

       Finally, Foster claims the prison lacks a security interest to justify searching
an inmate’s legal papers outside that inmate’s presence when the inmate has mixed
nonlegal material in with his legal papers. We review the district court’s conclusion
de novo and assume for purposes of this part of our discussion that the mere
separation of Foster’s legal and nonlegal materials qualifies as a search. See
Randolph, 276 F.3d at 403 (standard of review). At the time Foster’s materials were
searched, Iowa prison officials were bound by the Dee v. Brewer consent decree
which gave inmates the right to be present during a search of their legal materials in
the absence of exigent circumstances. Wycoff v. Hedgepeth, 34 F.3d 614, 615 (8th
Cir. 1994). The exigent circumstances exception was based on the prison’s
“legitimate security interest in searching outside the inmate’s presence for
[contraband] that may be secreted in an inmate’s legal papers” such as drugs or plans
for illegal activity. Id. at 618. “Otherwise, security officials fear, the inmate
population will learn the search techniques employed and devise methods of
concealment that will frustrate future searches.” Id.

       Explaining how an inmate’s presence relates to the prison’s security interest,
a prison official testified:
       For one thing, I don’t want to send the inmate to school on places [a prison
       official] may look. I don’t want him to be able to distract the officers from
       looking or doing – he may notice during the shakedown that one particular
       officer always forgets to look in a certain place or that more than one does, and
       I don’t want the inmates to know. If there is a weakness in someone’s
       particular methods, he doesn’t need to know that so then he knows where to
       hide his contraband.



                                          -4-
(Tr. 67). The Dee v. Brewer consent decree and relevant caselaw protect an inmate’s
right to maintain the privacy of his or her legal materials. Foster, in an effort to be
present for a search of his nonlegal materials, attempted to take advantage of this
protection by mixing his legal and nonlegal materials together. Foster’s deception
created exigent circumstances which gave the prison officials a legitimate security
interest in searching Foster’s legal materials outside of his presence.

      Based on the reasons stated above, we affirm the district court’s well-reasoned
findings of fact and conclusions of law.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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