     Case: 16-60231   Document: 00513884350     Page: 1   Date Filed: 02/21/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                 No. 16-60231                      February 21, 2017
                                                                      Lyle W. Cayce
                                                                           Clerk
NICOLE MABRY, as Mother and Next Friend of T.M., A Minor,

             Plaintiff - Appellant

v.

LEE COUNTY,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      T.M., a middle school student, was arrested after a fight on school
property and taken to a juvenile detention center. As part of standard intake
procedures at the center, she was subjected to a strip and cavity search. She
was released from the center that same evening. All charges were eventually
dropped. Nicole Mabry (“Mabry”), T.M.’s mother, brought suit against Lee
County (“County”) and others on T.M.’s behalf, alleging among other things
that the strip and cavity search violated T.M.’s Fourth Amendment rights. The
district court granted the County’s motion for partial summary judgment on
the Fourth Amendment issue. Mabry timely appealed. We AFFIRM.
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                                       I
      The facts essential to this appeal are not in dispute. T.M. was a twelve-
year old student at Tupelo Middle School. She was in a physical altercation
with a fellow student on school property. Pursuant to the school’s zero-
tolerance policy, the school principal consulted with the Tupelo police officer
assigned to be the School Resource Officer (“SRO”). Following that
conversation, the SRO determined there was probable cause to arrest T.M. on
charges of assault, disorderly conduct, and disruption of a school session. He
called the Lee County Youth Court’s judicial designee and was given
authorization, based on the designee’s determination of probable cause, to
transport T.M. to the Lee County Juvenile Detention Center (“Center”). He
then removed T.M. from school property, handcuffed her, and patted her down.
No weapons or contraband were found.
      Center intake procedures dictated that all juveniles processed into the
Center were to be searched for contraband using a metal detecting wand and
a pat down. In addition, procedures required that juveniles charged with a
violent, theft, or drug offense who were to be placed into the Center’s general
population be subjected to a visual strip and cavity search. All juveniles
brought to the Center were processed for placement in the general population
unless the Youth Court specifically informed the Center that the juvenile was
to be held as a “non-detainee.”
      Pursuant to these policies, a female corrections officer searched T.M.
when she arrived at the Center. The officer first used the metal detecting wand
and patted T.M. down, finding no contraband. At that point, the officer had no
reason to suspect T.M. was concealing any contraband in or on her person.
Because T.M. was charged with a violent offense, however, Center policy
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required that the officer strip and cavity search T.M. In a private setting, T.M.
was made to strip naked, bend over, spread her buttocks, display the anal
cavity, and cough. 1 At no point did the officer touch T.M. during the search. No
contraband was found. Following the search, T.M. showered, dressed, moved
to a holding cell for approximately twenty minutes, and then entered the
general population. She was released from the Center later that evening. No
charges against T.M. were pursued.
       Mabry sued on T.M.’s behalf. The County filed two separate motions for
partial summary judgment. The district court granted both motions and—
because neither motion was for complete summary judgment—ordered Mabry
to show cause as to whether any remaining claims existed against the County.
Mabry responded that no remaining claims existed, and the district court
entered final judgment.
       Mabry timely appealed. Her appeal is limited to a single issue: whether
the district court erred in determining that Mabry failed to create a genuine
issue of material fact that the Center’s search of T.M. violated T.M.’s Fourth
Amendment rights. We AFFIRM.
                                            II
       We review “the district court’s ruling on summary judgment de novo,
applying the same standard as the district court in the first instance.” Davis v.
Fort Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014). Summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to



       1 Courts have not always been precise in the terminology they use to describe various
kinds of searches. For purposes of uniformity, we call any search in which an inmate is made
to remove clothes a “strip search,” and any search in which an inmate is made to remove
clothes and allow visual inspection of the private parts a “strip and cavity search.”
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any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
                                          III
      The Fourth Amendment to the United States Constitution reads in
relevant part, “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated.” Because “[t]he Fourth Amendment prohibits only unreasonable
searches,” Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015), it has been
left to courts to draw the line between reason and unreason. There are many
different   kinds    of   searches,    varying   in    relative    intrusiveness    and
distinguishable by context. Unsurprisingly, search and seizure jurisprudence
has been patchwork, composed of a number of different tests, to be applied to
different kinds of searches and in different settings.
      The question presented to us is whether Mabry has shown that the
County’s visual strip and cavity search of T.M., who was detained for simple
assault pursuant to a probable cause determination by a judicial designee,
violated the Fourth Amendment. To answer, it is necessary to probe the
Supreme Court’s Fourth Amendment precedents to determine whether any
bind us. Although there are myriad Supreme Court cases that are at least
tangentially related to the issues raised here, three are especially pertinent.
None is on all-fours with the facts here. We give a brief summary of each
nonetheless, to properly situate our substantive analysis below in the context
of governing Supreme Court case law.
      A. Bell v. Wolfish
      Bell v. Wolfish, 441 U.S. 520 (1979), “is the starting point for
understanding” how to evaluate the reasonableness of a search at a
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correctional facility. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington,
132 S. Ct. 1510, 1516 (2012). In Bell, a group of adult pretrial detainees brought
a class action suit, challenging, among other things, a New York correctional
facility’s practice of strip and cavity searching all inmates “after every contact
visit with a person from outside the institution.” 441 U.S. at 558. The searches
were strictly visual; inmates were not touched. Id. at 558 n.39. The Court
announced a holistic balancing test to be applied when determining a search’s
reasonableness:
      The test of reasonableness under the Fourth Amendment is not
      capable of precise definition or mechanical application. In each
      case it requires a balancing of the need for the particular search
      against the invasion of personal rights that the search entails.
      Courts must consider the scope of the particular intrusion, the
      manner in which it is conducted, the justification for initiating it,
      and the place in which it is conducted.

Id. at 559. Applying this test to the searches at issue in Bell, the Court
“[b]alance[d] the significant and legitimate security interests of the institution
against the privacy interests of the inmates,” and concluded that the balance
weighed in favor of the reasonableness of the searches. Id. at 560.
      B. Safford v. Redding
      The inmates in Bell were adults. Thirty years later, the Supreme Court
addressed the constitutionality of strip searches of minor students by school
officials on school property. See Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S. 364 (2009). In Safford, the principal of a middle school oversaw the
search of a student who was required to “pull her bra out and to the side and
shake it, and to pull out the elastic on her underpants, thus exposing her
breasts and pelvic area to some degree.” Id. at 369. The Court, relying heavily
on prior precedent in New Jersey v. T.L.O., 469 U.S. 325 (1985), held that, when
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assessing the constitutionality of “searches by school officials[,] a ‘careful
balancing of governmental and private interests suggests that the public
interest is best served’” by applying “a standard of reasonable suspicion.”
Safford, 557 U.S. at 370 (quoting T.L.O., 469 U.S. at 341). In addition to having
reasonable suspicion to conduct a search, the Court explained, school officials
must also narrow the scope of the search such that “the measures adopted are
reasonably related to the objectives of the search and not excessively intrusive
in light of the age and sex of the student and the nature of the infraction.” Id.
(quoting T.L.O., 469 U.S. at 342). Importantly for present purposes, the Court
emphasized that the Fourth Amendment’s interest-balancing calculus outlined
in Bell is necessarily different when applied to minors, in part because
“adolescent vulnerability intensifies the patent intrusiveness” of a strip search.
Id. at 375.
      C. Florence v. Board of Chosen Freeholders
      The most recent relevant Supreme Court precedent came in Florence,
132 S. Ct. 1510. An adult pretrial detainee challenged strip and cavity searches
conducted pursuant to routine intake procedures. The Court reiterated the Bell
balancing test but further emphasized that “a responsible Fourth Amendment
balance is not well served by standards requiring sensitive, case-by-case
determinations of government need, lest every discretionary judgment in the
field be converted into an occasion for constitutional review.” Id. at 1517–18
(quoting Atwater v. Lago Vista, 532 U.S. 318, 347 (2001)). Rather than directly
applying Bell’s holistic balancing test, the Court applied a more deferential
Fourth Amendment calculus. See id. at 1515.
      The Florence Court held that “a regulation impinging on an inmate’s
constitutional rights must be upheld ‘if it is reasonably related to legitimate
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penological interests.’” Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
The Court further stressed the deference owed to correctional officials in
designing search policies intended to ensure security, noting that, “in the
absence of substantial evidence in the record to indicate that the officials have
exaggerated their response . . . courts should ordinarily defer to their expert
judgment in such matters.” Id. at 1517 (quoting Block v. Rutherford, 468 U.S.
576, 584–85 (1984)). While taking pains to describe and apply the long-
established reasonableness framework of Bell and other Fourth Amendment
precedent, the Court in Florence nonetheless set up a high hurdle for inmates
challenging the constitutionality of searches. The Court concluded that, in the
correctional context, the burden is on the plaintiff to prove with substantial
evidence that the challenged search does not advance a legitimate penological
interest.
      Although stressing the importance of deference to correctional officials,
the Court suggested that substantial evidence could demonstrate that a
correctional strip search policy is an exaggerated response to security concerns
when, compared to the facts presented in Florence, the need for such a policy
is lower, the justification weaker, the intrusiveness higher, or an alternative,
less invasive policy more feasible. Justice Kennedy’s majority opinion clarified
that “[t]his case does not require the Court to rule on the types of searches that
would be reasonable in instance where, for example, a detainee will be held
without assignment to the general jail population and without substantial
contact with other detainees. . . . The accommodations provided in these
situations may diminish the need to conduct some aspects of the searches at
issue.” Id. at 1522–23. Similarly, Chief Justice Roberts stressed: “it is
important for me that the Court does not foreclose the possibility of an
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exception to the rule it announces.” Id. at 1523. Justice Alito highlighted that
“the Court does not hold that it is always reasonable to conduct a full strip
search of an arrestee whose detention has not been reviewed by a judicial
officer and who could be held in available facilities apart from the general
population. Most of those arrested for minor offenses are not dangerous, and
most are released from custody prior to or at the time of their initial
appearance before a magistrate. . . . For these persons, admission to the
general jail population, with the concomitant humiliation of a strip search, may
not be reasonable, particularly if an alternative procedure is feasible.”
Id. at 1524 (Alito, J., concurring). Despite this cautionary language, the Court
in Florence nonetheless made clear that the evidentiary burden rests with the
plaintiff when challenging a correctional search policy. Without substantial
evidence to the contrary, courts should defer to the reasonableness
determinations of correctional officials.
                                        IV
      As the district court noted, T.M.’s case “lies at the intersection” of Safford
and Florence: both precedents share important similarities with the facts here,
but neither is on all-fours. Mabry v. Lee Cty., 168 F. Supp. 3d 940, 945 (N.D.
Miss. 2016). T.M.’s case is like Safford in that it involves the search of a minor
student, and it is like Florence in that the search was conducted pursuant to
routine intake procedures at a correctional facility. The first question we must
address, then, is whether Florence or Safford—or neither—controls in cases




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when, as here, the inmate who is searched on intake into a correctional facility
is a juvenile.
      Only one of our sister circuits has addressed precisely this question since
Florence was decided. 2 In J.B. ex rel. Benjamin v. Fassnacht, 801 F.3d 336 (3d
Cir. 2015), a minor was strip and cavity searched pursuant to routine intake
procedures at a juvenile detention center. The Third Circuit held that Florence
controlled for two reasons. First, focusing on the logic underlying Florence, the
court asserted that “[t]here is no easy way to distinguish between juvenile and
adult detainees in terms of the security risks cited by the Supreme Court in
Florence.” Id. at 343. And, the court explained, because juveniles and adults
pose the same security risks, it follows that the same constitutional test for
reasonableness should apply in assessing searches meant to mitigate those
risks. See id. at 344–45.
      Second, the court in J.B. homed in on certain language in the Florence
opinion that seems to indicate a broad scope of the holding, including Florence’s
expansive definition of jail to include “other detention facilities.” Id. at 339
(quoting Florence, 132 S. Ct at 1513). The court noted that this “sweeping
language . . . comports with the federal definition of prison: ‘[A]ny Federal,
State, or local facility that incarcerates or detains juveniles or adults.’” Id. at
347 (quoting 18 U.S.C. § 3626(g)) (emphasis added). Thus, relying on its
reading of Florence’s substantive logic and certain passages in the opinion’s




      2  The Sixth Circuit faced a similar situation in T.S. v. Doe, 742 F.3d 632 (6th Cir.
2014), but ultimately decided that case on qualified immunity grounds, and so did not make
any holding as to whether Florence applies to searches of juveniles.
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language, the Third Circuit concluded that Florence controls in cases involving
strip and cavity searches of minors.
      The County urges us to follow the Third Circuit in holding that Florence
controls in cases involving juveniles. Mabry and her amici argue that Florence
does not control when minors are involved, and that we should instead apply
Safford’s reasonable-suspicion test or some other alternative.
      In explaining its motivation for shifting the burden of marshalling
substantial evidence onto plaintiffs who challenge a search’s reasonableness,
the Court in Florence stressed the deference owed to correctional officers. The
reason for that deference is because courts do not have “sufficient
expertise . . . to mandate, under the Constitution . . . specific restrictions and
limitations.” Florence, 132 S. Ct. at 1513. “Maintaining safety and order” in
correctional facilities “requires the expertise of correctional officials.” Id. at
1515. Consequently, “determining whether a policy is reasonably related to
legitimate security interests is peculiarly within the province and professional
expertise of corrections officials.” Id. at 1517 (internal quotation marks
omitted). It is this expertise on the part of officials, and the lack thereof on the
part of courts, that motivates the deferential test outlined in Florence.
      Florence’s argument as to institutional competence applies with equal
force to juvenile detention centers as it does to adult correctional institutions.
That is, we can discern no reason why designing and implementing measures
to maintain safety and order in juvenile detention centers requires any less
expertise than in adult correctional facilities, nor do we see why courts are
more competent to achieve the task in the juvenile context. Importantly, the
persuasiveness of this point is not undermined by the fact that the actual
security concerns and privacy interests implicated in the juvenile detention
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center context may be different in important ways from those faced in adult
correctional facilities. See, e.g., Safford, 557 U.S. at 375 (noting that
“adolescent vulnerability intensifies the patent intrusiveness” of a search);
J.B., 801 F.3d at 343 (explaining that “juveniles pose risks unique from those
of adults as the state acts as the minor’s de facto guardian . . . during a minor’s
detention period”). Nevertheless, we read Florence to mean that, in the
correctional context—whether juvenile or adult—courts, which are not experts,
should still defer to officials who are. The logic underlying Florence’s
deferential test thus compels the conclusion that the deference given to
correctional officials in the adult context applies to correctional officials in the
juvenile context as well.
                                          V
      Having concluded that the burden allocation of Florence applies, we now
determine     whether     Mabry     has    put   forward       substantial    evidence
demonstrating that the search policy that the Center applied to T.M. was not
“reasonably       related      to      legitimate       penological          interests.”
Florence, 132 S. Ct. at 1515. Making that determination requires us to ask
whether Mabry has pointed to “substantial evidence in the record to indicate
that the officials have exaggerated their response.” Id. at 1517 (quoting Block,
468 U.S. at 584–85).
      Mabry acknowledges that, under Florence, it is her burden to prove the
policy’s unreasonableness with substantial evidence. Yet, in her brief, Mabry
focuses her argument exclusively on the threshold question of whether
Florence should apply to T.M.’s case. She makes no real effort to present
evidence that the Center’s search policy is exaggerated, unnecessary, or


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irrational in any way. 3 Accordingly, she effectively concedes that she cannot
prevail under Florence’s test.
      Mabry’s effective concession on this point is fatal to her claim, even
though we note that, at oral argument, counsel for the County could not point
to even one instance in which contraband was found via the strip and cavity
search that could not have been found through use of the metal detecting wand
and pat-down. Furthermore, the County has given no explanation for the
Center’s blanket policy of placing all incoming juvenile pretrial detainees into
its general population as a default matter, absent some special indication from
the Youth Court to the contrary. Indeed, at no point in its brief does the County
point to any evidence whatsoever legitimating any components of the Center’s
intake procedures, including the search policy.
      Despite the paucity of the County’s defense of the Center’s policies and
procedures, Mabry failed to enter evidence into the record below making a
substantial showing that the Center’s search policy is an exaggerated or
otherwise irrational response to the problem of Center security. Mabry’s
argument must therefore be rejected.
                                           VI
      The district court’s ruling is AFFIRMED.




      3At oral argument, Mabry’s counsel explicitly conceded that he had not attempted to
make any argument applying the Florence test.
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