           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2     Reynolds v. City of Anchorage, et al.        No. 02-6443
        ELECTRONIC CITATION: 2004 FED App. 0264P (6th Cir.)
                    File Name: 04a0264p.06                                                _________________
                                                                                               COUNSEL
UNITED STATES COURT OF APPEALS
                                                                      ARGUED:          David A. Friedman, FERNANDEZ,
                  FOR THE SIXTH CIRCUIT                               FRIEDMAN, GROSSMAN & KOHN, Louisville, Kentucky,
                    _________________                                 for Appellant. Suzanne D. Cordery, JEFFERSON COUNTY
                                                                      ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
 KATHERINE REYNOLDS,              X                                   ON BRIEF:         David A. Friedman, FERNANDEZ,
         Plaintiff-Appellant,      -                                  FRIEDMAN, GROSSMAN & KOHN, Louisville, Kentucky,
                                   -                                  for Appellant.     David L. Leightty, LEIGHTTY &
                                   -  No. 02-6443                     ASSOCIATES, Louisville, Kentucky, for Appellee.
            v.                     -
                                    >                                   FRIEDMAN, J., delivered the opinion of the court, in
                                   ,                                  which NELSON, J., joined. MOORE, J. (pp. 17-26),
 CITY OF ANCHORAGE, et al.,        -
                   Defendants, -                                      delivered a separate dissenting opinion.
                                   -                                                      _________________
 LESLIE WATSON, Jefferson          -
 County Officer,                   -                                                          OPINION
           Defendant-Appellee. -                                                          _________________
                                   -
                                  N                                     FRIEDMAN, Circuit Judge. This appeal challenges a
       Appeal from the United States District Court                   district court’s summary judgment dismissing a suit under
    for the Western District of Kentucky at Louisville.               42 U.S.C. § 1983 (1994) against a female police officer who
 No. 97-00446—John G. Heyburn II, Chief District Judge.               made a warrantless strip search of a female resident in a
                                                                      children’s home. The resident had been placed there
                    Argued: March 12, 2004                            following a juvenile court determination that she had
                                                                      committed various offenses. The district court dismissed her
              Decided and Filed: August 9, 2004                       suit because it ruled that the police officer had qualified
                                                                      immunity. We affirm.
  Before: NELSON, MOORE, and FRIEDMAN, Circuit                                                        I
                    Judges.*
                                                                        The “basic underlying facts” are, as the district court stated,
                                                                      “undisputed.” Mem. Op. at 1.
                                                                        In 1996, a Kentucky juvenile court found that the appellant
    *
    Daniel M. Friedman, Circuit Judge of the United States Court of   Katherine Reynolds, then sixteen years old, had committed
Appeals for the Federal Circuit, sitting by designation.              the offenses of possession of marijuana, forgery, and

                                1
No. 02-6443       Reynolds v. City of Anchorage, et al.     3    4      Reynolds v. City of Anchorage, et al.       No. 02-6443

fraudulent use of a credit card. As a result, she was removed    behavior convinced the officers that the girls needed to be
from her parents custody and was placed in the Bellewood         searched to ensure that there were no drugs in the cottage.”
Presbyterian Home for Children (“the Bellewood Home”), a         Id. Because the officers were all male, they called the county
state-approved private facility for juvenile offenders. While    police department to send a female officer to conduct the
there, she, together with several other girls, lived in Haney    searches. The department sent the appellee, Officer Leslie
Cottage. Haney Cottage residents, including Reynolds,            Watson, to perform the task. As the district court stated:
“admitted having previously used drugs while living” there.
Id.                                                                  Upon her arrival, [Watson] observed the girls running
                                                                     throughout the cottage, playing loud music, and yelling.
   On June 8, 1997, Reynolds (then seventeen) and two other          The Anchorage officers said that they had searched the
Haney residents walked around the facility’s grounds. Upon           girls’ rooms and located what they believed to be drug
their return, two staff members observed that the girls were         paraphernalia. She was also informed that the officers
“acting strangely” and suspected drug use might be the               suspected that the girls might be harboring drugs in their
reason. Id. at 2. At that same time, a local police officer of       undergarments or other clothing. [Watson] indicated that
the city of Anchorage, Kentucky, who was passing Bellewood           she could not perform a body cavity search without a
in his patrol car, telephoned the staff members to “make sure        warrant, but that she would perform a visual strip search
everything was alright,” id., and to “say hi.” The staff             of the girls to look for drugs.
members told the officer about their suspicions that the girls
“might be under the influence of drugs and might have drugs          [Watson] conducted the searches one at a time. Each girl
in their possession.” Id. The officer, joined by another local       was searched in her own room with a female staff
officer, proceeded to Haney Cottage “to assess the situation.”       member present. [Watson] instructed each girl to first to
Id.                                                                  remove her blouse and bra, put them back on, and then to
                                                                     remove her bottom clothing and underwear and bend
  After the girls, including Reynolds, were placed in the            over to allow a visual inspection of her rectal area.
cottage’s living room and instructed to stay there in the            [Watson] never physically touched any of the girls
charge of a staff member, the police officers and the other          during the searches. No drugs were located on any of the
staff member searched the girls’ rooms. In Reynold’s room            girls during the strip searches.
they found “a plastic baggy . . . which the officers believed
may have contained drugs.” Id. In other rooms, the officers      Id. at 3.
found “a baggy with a plant substance residue the officers
thought might be marijuana, . . . a glass vial which the           Reynolds then filed in the United States District Court for
officers believed may have been used as a pipe,” and             the Western District of Kentucky the present suit under
“prescription pills”– all items the officers “believed to be     42 U.S.C. § 1983 against the City of Anchorage, its Chief of
associated with drug use.” Id.                                   Police, and the police officers involved. She sought
                                                                 injunctive and declaratory relief, and compensatory,
  “At some point, [Reynolds] insinuated to the staff members     exemplary, and punitive damages. All defendants except
and the officers that she might have drugs hidden in her         Watson settled.
undergarments. [Reynolds’] statements coupled with the
suspicious items located in the girls’ rooms and their strange
No. 02-6443        Reynolds v. City of Anchorage, et al.       5    6     Reynolds v. City of Anchorage, et al.        No. 02-6443

  On cross-motions for summary judgment, the district court         whether Officer Watson had qualified immunity in making
granted Watson’s motion, ruling that she had qualified              the search. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1042
immunity. The court                                                 (6th Cir. 2003); Greene v. Barber, 310 F.3d 889, 894 (6th Cir.
                                                                    2002). In Virgili v. Gilbert, 272 F.3d 391, 394 (6th Cir.
  conclude[d] that in 1997 it was not clearly established           2001), however, decided after Saucier, this court, after
  that a search warrant supported by probable cause was             holding that state prison employees had qualified immunity
  required to constitutionally conduct a strip search of a          for strip searching another prison employee, stated: “We need
  minor suspected of possessing drugs in a juvenile home            not and do not, opine on the Fourth Amendment standards to
  or detention center. Based on the particular facts, and in        be applied to strip-searches of prison employees.”
  light of the then existing case law to guide [Watson], the
  Court conclude[d] that the type and scope of the search              A. The application of the Fourth Amendment to
  performed on [Reynolds] were objectively reasonable.              warrantless strip searches has been developed largely in cases
  Therefore, [Watson] [wa]s qualifiedly immune from suit            involving such searches in prisons and in schools. In Bell v.
  under 42 U.S.C. § 1983.                                           Wolfish, 441 U.S. 520 (1979), the Supreme Court held that
                                                                    visual body cavity inspections during strip searches of pre-
Id. at 11-12.                                                       trial detainees and convicted prisoners after they had contact
                                                                    with outsiders were not “unreasonable” searches under the
                               II                                   Fourth Amendment. The searches were conducted at the
                                                                    “federally operated short-term custodial facility in New York
   In its most recent qualified immunity decision, the Supreme      City designed primarily to house pretrial detainees.” Id. at
Court stated that a court determining “a qualified immunity         523. The Court stated that applying “[t]he test of
defense” in “a suit against an officer for an alleged violation     reasonableness under the Fourth Amendment . . . [i]n each
of a constitutional right,” must make two inquiries. Saucier        case . . . requires a balancing of the need for the particular
v. Katz, 533 U.S. 194, 200 (2001). First, the “court . . . must     search against the invasion of personal rights that the search
consider . . . this threshold question: Taken in the light most     entails. Courts must consider the scope of the particular
favorable to the party asserting the injury, do the facts alleged   intrusion, the manner in which it is conducted, the
show the officer’s conduct violated a constitutional right?”        justification for initiating it, and the place in which it is
Id. at 201. “[S]econd, assuming the violation is established,       conducted.” Id. at 559. It pointed out that a “detention
the question whether the right was clearly established must be      facility is a unique place fraught with serious security
considered . . . . ” Id. at 200. “If no constitutional right        dangers. Smuggling of money, drugs, weapons, and other
would have been violated were the allegations established,          contraband is all too common an occurrence.” Id.
there is no necessity for further inquiries concerning qualified
immunity. On the other hand, if a violation could be made              In Dobrowolskyj v. Jefferson County, 823 F.2d 955 (6th
out on a favorable view of the parties’ submissions, the next,      Cir. 1987), this court held that under Wolfish‘s balancing
sequential step is to ask whether the right was clearly             analysis, the strip search of a detainee in a local jail pursuant
established.” Id. at 201.                                           to a policy of so searching detainees before moving them into
                                                                    an area of the jail where they would have contact with the
  We therefore shall consider whether Officer Watson’s strip        general prison population, was not an unreasonable search
search of Reynolds violated the Fourth Amendment and                and therefore did not violate the Fourth Amendment. The
No. 02-6443       Reynolds v. City of Anchorage, et al.       7    8    Reynolds v. City of Anchorage, et al.        No. 02-6443

court stated: “The security interests of the jail in conducting      Cases involving searches of students by school authorities
a search at this point were strong. Dobrowolskyj was about         also are instructive. In New Jersey v. T. L. O., a school
to come into direct contact with the general jail population,      principal searched a student’s purse after a teacher found the
including prisoners who would then be moved into all               student smoking in the restroom, in violation of school rules.
sections of the jail. The jail had legitimate interests in         469 U.S. 325, 328 (1985). The Court held that the search was
preventing the flow of contraband into the other sections of       reasonable. After noting that the Fourth Amendment “applies
the jail.” Id. at 959.                                             to searches conducted by public school officials,” id. at 333,
                                                                   the Court stated that “school officials need not obtain a
   Griffin v. Wisconsin, 483 U.S. 868 (1987), although             warrant before searching a student who is under their
involving a different issue, provides further guidance. The        authority,” id. at 340. It stated that “the accommodation of
question there was whether a probation officer’s warrantless       the privacy interests of schoolchildren with the substantial
search of a probationer’s home, pursuant to a state regulation     need of teachers and administrators for freedom to maintain
authorizing such search if there were “reasonable grounds” to      order in the schools does not require strict adherence to the
believe that contraband was present there, violated the Fourth     requirement that searches be based on probable cause to
Amendment. Id. at 870-71. The search was made after the            believe that the subject of the search has violated or is
police had told the probation department that “there were or       violating the law. Rather, the legality of a search of a student
might be guns” in the probationer’s apartment. Id. at 871.         should depend simply on the reasonableness, under all the
The search uncovered a handgun in the apartment. The Court         circumstances, of the search. . . . Under ordinary
held that “[t]he search of [the probationer’s] residence was       circumstances, a search of a student by a teacher or other
‘reasonable’ within the meaning of the Fourth Amendment            school official will be ‘justified at its inception’ when there
because it was conducted pursuant to a valid regulation            are reasonable grounds for suspecting that the search will turn
governing probationers.” Id. at 880.                               up evidence that the student has violated or is violating either
                                                                   the law or the rules of the school. Such a search will be
  The Court indicated that “[a] warrant requirement would          permissible in its scope when the measures adopted are
interfere to an appreciable degree with the probation system,”     reasonably related to the objectives of the search and not
id. at 876, and that “the probation regime would also be           excessively intrusive in light of the age and sex of the student
unduly disrupted by a requirement of probable cause,” id. at       and the nature of the infraction.” Id. at 341-42 (footnotes
878. It stated: “In such circumstances it is both unrealistic      omitted).
and destructive of the whole object of the continuing
probation relationship to insist upon the same degree of             This court applied the T.L.O. resonableness analysis to a
demonstrable reliability of particular items of supporting data,   warrantless strip search for drugs conducted by school
and upon the same degree of certainty of violation, as is          officials in Williams v. Ellington, 936 F.2d 881 (6th Cir.
required in other contexts. In some cases – especially those       1991). There a female student reported to the principal
involving drugs or illegal weapons – the probation agency          (Ellington) that Williams and another girl had used drugs at
must be able to act based upon a lesser degree of certainty        school; there was other evidence that supported that
than the Fourth Amendment would otherwise require in order         conclusion. After a search of William’s locker, books and
to intervene before a probationer does damage to himself or        purse produced no evidence of drugs, the principal asked a
society.” Id. at 879.                                              female assistant principal to strip search Williams, which she
                                                                   did. Id. at 883. No drugs were found.
No. 02-6443       Reynolds v. City of Anchorage, et al.      9   10    Reynolds v. City of Anchorage, et al.        No. 02-6443

  Williams then filed suit under 42 U.S.C. § 1983 against          B. Under the foregoing decisions, the determination of the
school officials (including the principal and the assistant      reasonableness under the Fourth Amendment of a strip search
principal who conducted the strip search) and the school         of a juvenile delinquent in a detention facility requires us to
board members. This court affirmed the district court’s          balance “the need for the particular search against the
summary judgment for the defendants. Id. at 889. It held that    invasion of personal rights that the search entails.” Wolfish,
the defendants had qualified immunity. Id. This court stated:    441 U.S. at 559.
  Ellington’s decision to search Williams and her                  The situation of the juvenile delinquent inmates of the
  possessions for the presence of drugs was based upon the       Bellewood Home lay somewhere between that of prison
  events that occurred during the week of January 17,            inmates and students in school. The Bellewood inmates were
  1988. A study of the record leads us to conclude that          not as closely confined or strictly controlled and supervised
  Ellington and the remaining Defendants were not                as prison inmates or detainees. Perhaps their expectations of
  unreasonable in suspecting, based on the information           privacy in that situation were somewhat greater than those of
  available at the time, that a search of Williams would         prisoners, but this slight difference appears insignificant. On
  reveal evidence of drugs or drug use. Further,                 the other hand, they were still subject to substantial restraint;
  Defendants were not unreasonable, in light of the item         they were required to live and remain in the Home and they
  sought (a small vial containing suspected narcotics), in       were not free to leave it as they wished. Their confinement to
  conducting a search so personally intrusive in nature.         the Home, like that of inmates in a prison, was punishment
                                                                 for prior criminal misdeeds. In comparison to students in
Id. at 887                                                       school, whose mandatory attendance is not punishment for
                                                                 criminal misconduct but a method of insuring their education,
  In Tarter v. Raybuck, 742 F.2d 977, 983 (6th Cir. 1984),       the inmates of the Home were under substantially greater
this court held that school officials had made a reasonable      restraint and had a lesser expectation of privacy than do
search of a student’s person (although he did not remove all     students.
of his clothing) where they “had observed activity they
reasonably believed to indicate the use and sale of marijuana,     Applying this balancing approach, we conclude that Officer
activity which plainly constituted a violation of a well         Watson’s strip search of Reynolds was not unreasonable. In
established policy.” This court stated that in determining       so concluding, we apply Wolfish’s admonition to “consider
whether the search was reasonable, “we balance the [F]ourth      the scope of the particular intrusion, the manner in which it
[A]mendment rights of individual students with the interest of   [was] conducted, the justification for initiating it, and the
the state and the school officials in the maintenance of a       place in which it [was] conducted.” Id. Wolfish also pointed
proper educational environment to educate today’s youth.”        out that a “detention facility is a unique place fraught with
Id. at 982. It “h[e]ld that a school official or teacher’s       serious security dangers. Smuggling of money, drugs,
reasonable search of a student’s person does not violate the     weapons, and other contraband is all too common an
student’s [F]ourth [A]mendment rights, if the school official    occurrence.” Id. The Bellewood Home also was “a unique
has reasonable cause to believe the search is necessary in the   place fraught with” a variety of problems and dangers,
furtherance of maintaining school discipline and order, or his   including the use of drugs by its residents. The need to
duty to maintain a safe environment conducive to education.”     “maintain[] . . . discipline and order” there is no less than in
Id.                                                              school. Tarter, 742 F.2d at 982.
No. 02-6443       Reynolds v. City of Anchorage, et al.     11    12   Reynolds v. City of Anchorage, et al.        No. 02-6443

  Following the determination by the juvenile court that          2000). As the district court correctly stated, however, the
Reynolds had committed three criminal offenses, including         “circumstances” in the present case “are significantly
possession of marijuana, the court removed her from her           different from those in Toles.” Mem. Op. at 6.
parents’ custody and placed her in the Bellewood Home,
which thereby became her new “home.” The Bellewood                   In Toles, three girls had spent some time trying on bathing
Home had the duty and responsibility to insure the safety,        suits in a department store but did not purchase any. A clerk,
health, and well being of Reynolds and the other inmates.         suspicious because of the length of time the girls were in the
The use and/or possession of drugs by Reynolds or the other       dressing room, called the defendant Friedman, an off-duty
girls would cause serious problems within the Bellewood           police officer who was doing security work for the store.
Home and adversely affect its proper functioning. The Home        When the girls were about to leave the store, Friedman
thus had a strong interest in eliminating and preventing drug     stopped them. After searching their purses and finding
use on the premises by its residents.                             nothing, he suspected that they might be concealing a bathing
                                                                  suit under their outer clothing. Friedman arranged for a
  Watson and other girls admitted they previously had used        female security guard at the mall where the store was located
drugs while living in the Home. They had acted “strangely”        to strip search the girls. She did so but did not find a bathing
after returning from a walk, which led staff members to           suit.
suspect the use of drugs. A search of their rooms by the
police officers had uncovered paraphernalia that the officers       The girls sued Friedman, who claimed qualified immunity.
“believed to be associated with drugs use.” Mem. Op. at 2.        The district court refused to grant such immunity, finding
Reynolds had insinuated that she had drugs hidden in her          there were disputed factual issues. Friedman appealed to this
underwear. The police officers justifiably concluded that the     court only from the denial of qualified immunity.
only way to assuage these concerns about the girls’
possession of drugs “and to ensure that there were no drugs in       We dismissed the appeal for lack of jurisdiction because an
the cottage” was to strip search the girls. Id.                   order denying qualified immunity due to the presence of a
                                                                  disputed issue of material fact is not immediately appealable.
   Although the strip search was a highly invasive procedure,     We held that there was such an issue: whether the girls
it was no more invasive than necessary to accomplish its          consented to the strip search. We ruled that “a reasonable law
purpose of insuring that Reynolds and the other girls were not    enforcement officer, in the circumstances presented, could not
concealing drugs on their persons. It was conducted in a way      believe that exigent circumstances justified the warrantless
designed to minimize its intrusive effect. Officer Watson         strip searches of the young women,” and that “the only
made the search in the privacy of the girls’ own rooms and in     possible exception to the warrant requirement that could have
the presence of only a single staff member. She did not touch     validated the presumptively unreasonable, warrantless search
any of the girls during the search. Considering all the           was a search undertaken pursuant to the consent of the
circumstances, we conclude that Officer Watson’s strip search     plaintiffs.” Id. at **4. We concluded that “[t]he existence of
of Reynolds was not unreasonable.                                 that unresolved factual dispute preclude[d] this court from
                                                                  exercising jurisdiction over this appeal at this time.” Id. at
  Reynolds continues to rely heavily here, as she did in the      ** 5.
district court, on this court’s unpublished opinion in Toles v.
Friedman, No. 99-4031, 2000 WL 1871683 (6th Cir. Dec 11,
No. 02-6443       Reynolds v. City of Anchorage, et al.      13    14   Reynolds v. City of Anchorage, et al.       No. 02-6443

  In Toles, the defendant sought to justify the strip search on      it was not unreasonable for [Watson] to conclude that a
the basis of exigent circumstances, an exception to the              search was necessary both to ensure [Reynolds’] safety
warrant requirement not involved here. Toles arose in the            and the safety of the other residents. Thus, it was
commercial context of a suspected theft by customers in a            objectively reasonable for [Watson] to conclude that
department store – a situation totally unlike the suspected use      interests apart from those of ordinary law enforcement
of drugs by a juvenile delinquent in a children’s home.              permitted her to conduct a warrantless strip search of
                                                                     [Reynolds].
   C. Should the analysis or result be different because the
strip search was conducted by a police officer rather than by      Mem. Op. at 11.
an employee of the Bellewood Home? We think not.
                                                                      On this record, we have no reason to disagree with or reject
   As Reynolds points out, the cases we have discussed in Part     those conclusions. Under them, the search did not require a
II.A that formulate and apply the balancing test in                warrant even though conducted by a police officer. It was
determining the Fourth Amendment reasonableness of strip           reasonable because Officer Watson had a reasonable
searches involved searches by persons other than police            suspicion that the girls possessed narcotics. Cf. United States
officers. It does not follow, however, that those principles       v. Knights, 534 U.S. 112, 121 (2001) (“When an officer has
cannot properly be applied where the strip search is made by       reasonable suspicion that a probationer subject to a search
a police officer. Those cases do not state that their principles   condition is engaged in criminal activity, there is enough
are inapplicable to strip searches by police officers.             likelihood that criminal conduct is occurring that an intrusion
                                                                   on the probationer’s significantly diminished privacy interests
  The inquiry in those cases focused on balancing “the need        is reasonable.”).
for the particular [strip] search against the invasion of
personal rights that the search entails,” Wolfish, 441 U.S. at                                   III
559, not on the identity of the person conducting the search.
As we have shown, under that balancing test the strip search         Even if our conclusion that the strip search did not violate
of Reynolds would have been reasonable if the staff members        the Fourth Amendment were to be rejected, we still would
of the Bellewood Home had conducted it. We see no valid            affirm the district court’s summary judgment for Officer
reason why the result should be different because it was a         Watson dismissing the complaint. That is because we agree
police officer who conducted the search. In either instance,       with the district court that Officer Watson had qualified
the purpose and objective of the search was the same: to help      immunity for conducting the search.
the Home determine whether the girls possessed drugs, and
thus to aid the Home in uncovering what the facts suggested          The Supreme Court has explained that
may have been the illegal use of drugs by some of the
residents.                                                           [t]he concern of the [qualified] immunity inquiry is to
                                                                     acknowledge that reasonable mistakes can be made as to
  The district court concluded that, based on the facts known        the legal constraints on particular police conduct. It is
to Officer Watson, described above,                                  sometimes difficult for an officer to determine how the
                                                                     relevant legal doctrine . . . will apply to the factual
                                                                     situation the officer confronts. An officer might
No. 02-6443       Reynolds v. City of Anchorage, et al.      15    16    Reynolds v. City of Anchorage, et al.        No. 02-6443

  correctly perceive all of the relevant facts but have a          Fourth Amendment to strip searches of juvenile delinquents
  mistaken understanding as to whether a particular                in an institutional home in which they are confined.
  amount of force is legal in those circumstances. If the          Moreover, as is shown by the analysis, in Part II above, of
  officer’s mistake as to what the law requires is                 existing precedent that deals with the Fourth Amendment
  reasonable, however, the officer is entitled to the              status of strip searches in other contexts, the question is close
  immunity defense.                                                and difficult. It involves subtle legal distinctions and
                                                                   inferences that a reasonable police officer would not and
Saucier, 533 U.S. at 205.                                          could not be expected to make.
   Under qualified immunity, “government officials                    In these circumstances, any mistake that Officer Watson
performing discretionary functions, generally are shielded         may have made about her authority to conduct the strip
from liability for civil damages insofar as their conduct does     searches was reasonable. It cannot be said that at that time it
not violate clearly established statutory or constitutional        was clearly established that Reynolds had a constitutional
rights of which a reasonable person would have known.”             right not to be so searched except pursuant to a valid search
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also           warrant.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (In damage suit
against former Attorney General Mitchell for authorizing a            Officer Watson was aware of and sensitive to the existing
wiretap, “[u]nder Harlow v. Fitzgerald, Mitchell [was]             settled limits upon her authority to make strip searches. As
immune unless his actions violated clearly established law.”).     the district court noted, upon arriving at the Bellewood Home,
This court has stated that “[t]o determine what rights are         she “indicated that she could not perform a body cavity search
‘clearly established,’ we must look to decisions from the          without a warrant, but that she would perform a visual strip
Supreme Court and from courts within this circuit,” although       search of the girls to look for drugs.” Mem. Op. at 3. Even
“[i]n rare instances, where authority is lacking from these        if she were mistaken in concluding that she could make a
sources, we may also review decisions of other courts.”            warrantless visual strip search, such mistake was reasonable.
Williams v. Ellington, 936 F.2d at 885.
                                                                                          CONCLUSION
   “The relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a     The summary judgment of the district court in favor of
reasonable officer that his conduct was unlawful in the            Officer Watson is affirmed.
situation he confronted.” Saucier, 533 U.S. at 202. The
district court correctly concluded that when Officer Watson
conducted the strip searches in 1997, it was not clearly
established that those searches were unlawful and that it
would not have been clear to her that her conduct was
unlawful.
  There has been no decision of the Supreme Court, this court
or any courts within this circuit – or, as far as we know, of
any other court – that has addressed the application of the
No. 02-6443        Reynolds v. City of Anchorage, et al.      17    18       Reynolds v. City of Anchorage, et al.     No. 02-6443

                      _______________                               be a key juncture: whether or not the strip-searches of the
                                                                    residents of Haney Cottage were authorized by staff members
                         DISSENT                                    or instead were initiated by police. It is of course the facts as
                      _______________                               asserted by Katherine Reynolds (“Reynolds”), the non-
                                                                    moving party, that we must follow. Bellewood Presbyterian
   KAREN NELSON MOORE, Circuit Judge, dissenting. In                Home for Children (“Bellewood”) is a private group home for
holding that Officer Watson’s warrantless strip-search of a         abused and at-risk children, with an explicitly religious
seventeen-year-old girl was “reasonable” under the Fourth           mission, which is under contract to the Kentucky Cabinet for
Amendment, the district court relied on the “special needs”         Human Resources. Reynolds was sent to Bellewood after
exception to the rule that all warrantless searches are             being adjudicated delinquent for marijuana possession,
presumptively unreasonable. In affirming that dubious               second-degree forgery, and fraudulent use of a credit card.
holding, the majority untethers the district court’s language       Joint Appendix (“J.A.”) at 84. While Reynolds and others
from its reasoning, and in a single paragraph of analysis,          were sent to Bellewood after juvenile delinquency
relies on United States v. Knights, 534 U.S. 112, 121 (2001),       proceedings, this is not true of all of Bellewood’s residents.
to conclude that “reasonable suspicion” is all that is necessary    Reynolds was seventeen at the time of the incident, and lived
to justify a strip-search of a juvenile in a private group home     at Haney Cottage with other juveniles and staff members.
by police acting without authorization from that home’s staff.      J.A. at 207, 213, 218.
I believe the district court was wrong to conclude that this
was a valid “special needs” search, I believe the majority is          On June 8, 1997, Reynolds and two other residents of
wrong to rely on Knights rather than the general rule that a        Haney Cottage took a walk on the Bellewood grounds. When
warrantless search is presumptively unreasonable unless             they returned, they were acting “strange” and two Bellewood
falling into an enumerated exception, and I believe that even       staff members, Melissa Adamchik (“Adamchik”)1 and
under the balancing test used in Knights, this search was           Stephanie Jacob (“Jacob”), suspected the girls of using drugs.
unreasonable.                                                       J.A. at 89. At roughly the same time, Anchorage Police
                                                                    Officer Toby Lewis (“Lewis”), whose beat included
  The majority relies upon the district court’s recitation of       Bellewood, called the cottage from his cell phone as he drove
facts, and in doing so amplifies the district court’s errors. The   by. Lewis testified that he called “just to say hi.” J.A. at 157.
“basic underlying facts” are not “undisputed”; a thorough           During the course of the friendly conversation, Adamchik and
review of the record reveals that the version of events given       Jacob informed Lewis of their suspicions of drug use. J.A. at
by the police officers in their deposition testimony and            86, 143-44, 158-62. Lewis then entered the cottage, and the
written reports and that of the staff of the Bellewood home         decision was made to search the girls’ rooms. J.A. at 158-62.
and its residents are wildly divergent. Compare Dep. of             Lewis’s deposition testimony was that Adamchik and Jacob
Officer Watson, R. 119, at 32 (“I tried to do it [the strip-        had asked him to search the girls, and when he informed them
searches] as gently as possible and considerate as possible”)       that he could not, and offered to search the rooms, they then
with Dep. of Katherine Reynolds, R. 92, at 157 (“And then
[Watson] said, “If you don’t take off the f***ing bra, I’m
going to take it off for you.”) and Dep. of Sarah Lynette                1
Holman, R. 101, at 44-45 (describing Watson as “rude” and                Melissa Adamchik is the staff member’s married name; in the
                                                                    record, she is sometimes identified by her maiden name, M elissa
“cocky”). This divergence is most acute at what I believe to        W ambaugh.
No. 02-6443       Reynolds v. City of Anchorage, et al.      19    20    Reynolds v. City of Anchorage, et al.        No. 02-6443

asked him to do that. J.A. at 161-63. Adamchik testified that      girls could have contraband on their persons. “[I]t just
they did not ask Lewis to perform a search, which conforms         seemed kind of pointless to me.” J.A. at 261 (Dep. of
to her account of events in written incident reports, but that a   Katherine Reynolds). The decision was then made to perform
call was placed to Carol Wochenko, head therapist for Haney        a strip-search on the girls. According to Lewis, it was Ennis
Cottage, who indicated her approval of the room searches.          who made the instant decision to search the girls, but
J.A. at 80, 89, 121-22; Dep. of Melissa Adamchik, R. 162, at       consistent with his earlier testimony that the entire incident
37. Lewis called in for backup, and Officer James Ennis            was prompted by a staff request to search the girls, Lewis also
(“Ennis”) arrived at the scene. A search of all five rooms at      testified that when Watson arrived, he informed Watson that
Haney Cottage ensued, during which time a third Anchorage          the staff had requested that the girls be searched. J.A. at 189-
police officer, Officer Timothy Young (“Young”) arrived.           90, 199-200. Watson testified that when she arrived, both
J.A. at 86. In Reynolds’s room, two packs of cigarettes and        staff members and her three fellow officers individually
an empty plastic bag (the “plastic baggy . . . which the           requested that she perform the search. J.A. at 274-75, Dep. of
officers believe may have contained drugs” noted by the            Leslie Watson at 15-19. Adamchik, on the other hand,
majority) were found; in other residents’ rooms, seven             testified that the first mention of strip-searches came from the
lawfully-prescribed Depakote tablets, a clear vial with a white    officers, that she did not request the strip-searches, and that
powder residue, and a small baggie with trace amounts of an        she never heard Jacob request the strip-searches. J.A. at 128-
unidentified brown substance were found. J.A. at 86. The           29, 134-35, 137-38. No further phone call was placed to
latter two items were later sent to be tested, and the powder      Carol Wochenko. Reynolds testified that Adamchik or Jacob
turned out to be non-drug related, while the brown substance       informed her that the police had decided to strip-search the
was not substantial enough to be tested. J.A. at 186. The          girls, and other Haney Cottage residents described Adamchik
district court stated that Reynolds and other Haney Cottage        as visibly physically distressed at the strip-searches. Dep. of
residents “admitted having previously used drugs while             Katherine Reynolds at 143-44, 180 (“[S]he said that they [the
living” at the cottage, J.A. at 29. Presumably this is meant to    police] were the ones that initiated it, the strip search”); Dep.
have relevance in determining the reasonableness of                of Carla Dana Hudson at 184-85; Dep. of Shatonya Lanyce
subsequent events; this statement may refer to Officer             Elam at 136-37. At that point, each girl was taken into her
Lewis’s testimony that at a prior talk he had given to the         own room by Watson and strip-searched with Adamchik
residents of Haney Cottage, Reynolds had stated “that she has      present. Although Watson testified that each girl was first
used drugs in the past and she will continue to use drugs.”        instructed to remove her shirt and bra, and then put them back
Dep. of Toby Lewis at 93-94. Whatever the reliability of this      on, and then remove her pants and underwear and bend over,
hearsay, such adolescent bravado has limited value in              and then put her clothing back on, at least one of the girls
determining whether Reynolds had contraband on her person          testified that to the contrary, she was entirely naked during the
at some future time.                                               search. J.A. at 283-84 (Dep. of Leslie Watson); Dep. of Sarah
                                                                   Lynette Holman, R. 101, at 45. Each girl was also made to
  At this point, the majority repeats the district court’s         bend over and spread her buttocks. No drugs were
description of a statement by Reynolds to the supposed effect      discovered.
“that she might have drugs hidden in her undergarments.” In
fact, frustrated by what she no doubt saw as an intrusive and        “Warrantless searches are per se unreasonable under the
ultimately fruitless search of her residence, Reynolds pointed     fourth amendment, except in a few carefully delineated
out to Jacob that room searches were useless, because the          instances.” United States v. Radka, 904 F.2d 357, 360 (6th
No. 02-6443        Reynolds v. City of Anchorage, et al.      21    22   Reynolds v. City of Anchorage, et al.        No. 02-6443

Cir. 1990); see also Groh v. Ramirez, 124 S. Ct. 1284, 1290-        Court as part of the “special needs” doctrine. See Skinner,
91 (2004) (reaffirming presumption that warrantless searches        489 U.S. at 619-20. Each case cited by the majority in the
are unreasonable in context of search of home). Those               first part of its analysis is thus part of the “special needs”
exceptions include automobile searches, consented-to                exception to the warrantless search per se rule.
searches, searches incident to arrest, seizures of items in plain
view, Terry stops, the hot-pursuit rule, and searches in order         Under the “special needs” doctrine, a search of a particular
to prevent the loss or destruction of evidence. The district        student, with the exception of drug testing, must be supported
court relied upon the “special needs” doctrine in granting          by reasonable suspicion, which Reynolds concedes exists in
qualified immunity to Watson. J.A. at 29, 34-35. The                this case. Reynolds’s Reply Brief at 1; T.L.O., 469 U.S. at
“special needs” doctrine, first articulated by Justice Blackmun     341-42. We have relied upon this holding to extend qualified
in his concurring opinion in New Jersey v. T.L.O., 469 U.S.         immunity to officials performing strip-searches of public-
325, 351 (1985), constitutes an exception to the rule that all      school students for drugs. See Williams v. Ellington, 936
searches must be pursuant to a search warrant obtained by the       F.2d 881, 887-89 (6th Cir. 1991). The majority therefore is
demonstration of probable cause in those cases where “special       likely correct to conclude that Bellewood Home “had a strong
needs, beyond the normal need for law enforcement, make the         interest in eliminating and preventing drug use on the
warrant and probable-cause requirement impracticable.” Id.          premises by its residents” that could support a warrantless
T.L.O. involved a search of a public-school student by school       strip-search of Reynolds by Bellewood’s staff upon
officials on the basis of particularized suspicion, but the         reasonable suspicion that she was concealing contraband on
“special needs” doctrine has since been extended by the             her person. The majority in the next paragraph then reveals
Supreme Court to allow suspicionless drug testing of public-        its logical misstep in stating, “The police officers justifiably
school students involved in after-school activities, see Bd. of     concluded that the only way to assuage these concerns . . .
Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822            was to strip-search the girls.” This marriage between the
(1990), and workers in sensitive industries, see Skinner v. Ry.     needs of the Bellewood Home and the conclusions and
Labor Executives’ Ass’n, 489 U.S. 602 (1989) (railway               actions of the police officers is not merely a question of the
employees who violate safety rules or who are involved in           identity of the searcher, but of the object of the search.
accidents); Nat’l Treasury Employees Union v. Von Raab,             Whether a warrantless strip-search initiated and authorized by
489 U.S. 656 (1989) (customs officials who carry a firearm or       Bellewood staff, but conducted by police, would have been a
work in drug interdiction), sobriety checkpoints, see Mich.         valid “special needs” search was a question expressly left
Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and             open by T.L.O., 469 U.S. at 342 n.7 (reserving question of
warrantless searches of probationers’ private residences, see       “searches conducted by school officials in conjunction with
Griffin v. Wisconsin, 483 U.S. 868 (1987). The Court has            or at the behest of law enforcement agencies”). This question
made clear, however, that searches whose primary purpose is         is thus perhaps deserving of more than a page of analysis in
law enforcement are not “special needs” searches. See               its answer, but that answer is entirely academic in this case:
Ferguson v. City of Charleston, 532 U.S. 67 (2001); City of         taking Reynolds’s version of facts as correct, we must assume
Indianapolis v. Edmond, 531 U.S. 32 (2000). Although Bell           that police initiated and performed the strip-searches on their
v. Wolfish, 441 U.S. 520 (1979), predates T.L.O., its holding       own. Under those facts, it becomes clear that a constitutional
that pretrial detainees can be subject to body-cavity searches      violation did, in fact, occur. Police officers, invited onto
after every contact visit consonant with the Fourth                 private property, cannot initiate a warrantless strip-search of
Amendment has been later contextualized by the Supreme              citizens merely because some other authority has the right to
No. 02-6443       Reynolds v. City of Anchorage, et al.      23    24       Reynolds v. City of Anchorage, et al.            No. 02-6443

search those citizens to maintain order in its facility. That      such searches. If Reynolds had been home on a weekend
result is clearly contrary to the sharp line drawn by the          visit, as was regular, and her parents had invited Watson into
Supreme Court between valid “special needs” searches and           the home to speak to Reynolds about the dangers of drug use,
those that are unlawful because they serve ordinary law            would the majority hold that Watson could then proceed to
enforcement goals as well as special needs. See Ferguson,          strip-search Reynolds without her parents’ permission
532 U.S. at 79-80.                                                 because their interests in keeping their daughter away from
                                                                   drugs justified the intrusion on Reynolds’s right to be free
   The majority in its ultimate conclusion that no                 from unreasonable searches? I see little logical distinction
constitutional violation occurred relies on United States v.       between such obviously excessive police behavior and the
Knights, 534 U.S. 112 (2001). To the extent that Knights           actions of police we must assume took place here.
eschewed reliance on the “special needs” exception to the
general rule that a warrantless search is unconstitutional in         Finally, I disagree that Watson is entitled to qualified
favor of a more general balancing approach, that case is           immunity. Because the general rule that a warrantless search
necessarily limited to its facts by subsequent cases which         is unreasonable was clearly established in 1997, I believe that
have reaffirmed the per se rule/carefully delineated exceptions    the majority inverts the proper inquiry when it notes that no
approach to warrantless searches of the home. See Groh, 124        court has addressed the application of the Fourth Amendment
S. Ct. at 1290-91. In fact, Knights has not been cited again       to the situation before us today in support of qualified
by the Supreme Court in deciding nearly a dozen cases              immunity; instead, if no case suggests that a police officer is
involving Fourth Amendment reasonableness. Nonetheless,            entitled to rely on similar administrative “special needs” in
even assessing the search under Knights’s general                  initiating a strip-search herself, Watson is not immune from
reasonableness equation, I believe this search was still           suit. No cases in our circuit, nor indeed any court addressing
unreasonable, because the key problem with this search is that     the related issue of when searches on school grounds are
the government had no interest in it beyond a generalized          appropriate, suggest that Watson’s actions were justified.2
interest in law enforcement, and that interest cannot justify
the strip-search, particularly of a minor, based merely on           Since T.L.O., courts have generally held that T.L.O.’s
reasonable suspicion. See Knights, 534 U.S. at 118-19              reasonable-suspicion standard applies to searches conducted
(“reasonableness of a search is determined ‘by assessing, on       by law enforcement officials at the behest of school officials.
the one hand, the degree to which it intrudes upon an               See Shade v. City of Farmington, 309 F.3d 1054, 1060 (8th
individual’s privacy and, on the other, the degree to which it     Cir. 2002) (search constitutional where “school officials, not
is needed for the promotion of legitimate governmental             law enforcement officers, initiated the investigation and the
interests.’” (quoting Wyoming v. Houghton, 526 U.S. 295,           search”); Cason v. Cook, 810 F.2d 188, 192 (8th Cir. 1987)
300 (1999)). While Bellewood had an interest in maintaining        (no violation where “no indication that but for the deputy’s
order in its facility, one that may have been served by the        involvement, the plaintiff would not have been searched”);
search of Reynolds, Bellewood was not the entity searching
Reynolds, nor is it necessarily a governmental entity at all; it
                                                                        2
is a private religious home for children. Whether or not that            United States v. Knights, 534 U.S. 112, 121 (2001), can of course
private institution can “deputize” police officers to search its   offer Watson no help at this stage of the inquiry, as it was decided after
residents, surely police officers cannot of their own initiative   the events in question too k place; add itionally, there is no indication
                                                                   anywhere in the record that W atson knew that R eynolds was herself a
do so without being subject to the normal rules governing          delinquent or that Haney Cottage was home o nly to delinquents.
No. 02-6443       Reynolds v. City of Anchorage, et al.      25    26    Reynolds v. City of Anchorage, et al.        No. 02-6443

State v. N.G.B., 806 So. 2d 567, 568-69 (Fl. Dist. Ct. App.        conducted searches on their own initiative. See also Tarter v.
2002) (“reasonable suspicion was the appropriate standard”         Raybuck, 742 F.2d 977, 983 (6th Cir. 1984) (pre-T.L.O. case
where search of student by police officer was initiated and        noting that “[t]he presence of the police officers does take this
directed by school official); In re Josue T., 989 P.2d 431, 437    case purely out of the context of school officials seeking to
(N.M. Ct. App. 1999) (reasonable suspicion applies where           maintain an environment conducive to the educational
police officer “merely assisted the school official, during the    process” but concluding that “involvement of the police with
school day, at the school official’s request, to protect student   respect to the plaintiff is marginal” in case where plaintiff was
welfare and the educational milieu”); In re Angelia D.B., 564      searched only by school officials acting on their own). The
N.W. 2d 682, 688, 690 (Wisc. 1997) (reasonable suspicion           consensus of all prior courts is that when police act on their
standard applies where school liasion officer “became              own initiative, they cannot rely on the “special needs” of
involved in th[e] investigation only after school officials        school officials. See F.P., 528 So. 2d at 1254; Tywayne H.,
requested his assistance” and worked in conjunction with           933 P.2d at 254; Thomas B.D., 486 S.E.2d at 500, 504-506.
school officials). But see In re A.J.M., 617 So. 2d 1137, 1138
(Fl. Dist. Ct. App. 1993) (where police officer “directed,           I would therefore reverse the district court’s decision and
participated in or acquiesced in the search,” probable cause is    remand the case for trial.
required). Other courts have also held that where a police
officer is employed by the school or school district and the
search is consonant with the “special needs” of school
discipline, the T.L.O. standard also applies. See People v.
Dilworth, 661 N.E.2d 310, 317 (Ill. 1996). But when
confronted with a search like that at issue here, initiated by
law enforcement officers not under the supervisory control of
school authorities, courts have uniformly held that probable
cause is required. See In re F.P., 528 So. 2d 1253, 1254 (Fl.
Dist. Ct. App. 1988) (exception to probable cause requirement
“does not apply when the search is carried out at the behest of
the police”); State v. Tywayne H., 933 P.2d 251, 254 (N.M.
Ct. App. 1997) (T.L.O. standard inapplicable where search
“conducted completely at the discretion of the police
officers”); In re Thomas B.D., 486 S.E.2d 498, 500, 504-506
(S.C. Ct. App. 1997) (while search was of student and took
place on school property, T.L.O. standard inapplicable
because police were acting on their own authority and not as
agents of the school). See generally Wayne R. LaFave,
Search and Seizure § 10.11 (discussing three categories of
cases). These cases demonstrate once again that the “special
needs” doctrine is wholly inapplicable on Reynolds’s version
of the facts, where police, unconnected to the institution
whose “special needs” are said to justify the search,
