
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2035                                     KELLI SWAIN,                                Plaintiff, Appellant,                                          v.             LAURA SPINNEY, EDWARD HAYES, AND THE TOWN OF NORTH READING,                                Defendants, Appellees.                                 ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge                                        _____________                             Bownes, Senior Circuit Judge                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Michael Tyler,  with whom Michael Edward  Casey was  on brief, for            _____________             _____________________        appellant.            Douglas  I. Louison,  with whom  Regina  M.  Gilgun and  Merrick &            ___________________              __________________      _________        Louison were on brief, for appellees.        _______                                 ____________________                                    June 25, 1997                                 ____________________                      LYNCH, Circuit Judge.  Kelli Swain was subjected to                      LYNCH, Circuit Judge.                             _____________            a strip search and visual body cavity inspection, while being            held in  a cell  in the  North Reading,  Massachusetts police            station.   This search occurred  after Swain had  been in the            cell for twenty  minutes, and more than an hour after she was            arrested.  She was arrested with her boyfriend as a result of            his  shoplifting; she  was  suspected of  having possessed  a            small baggie of marijuana.  The search was ordered, she says,            by  a police  officer immediately  after he  had interrogated            her,  while knowing she was  represented by counsel.   He had            become angry with Swain for saying she knew nothing about her            boyfriend's shoplifting.  Swain's  boyfriend, who was also in            custody, whose shoplifting had triggered the arrests, and who            had an extensive criminal  record, including drug crimes, was            not  strip-searched.     The  charges   against  Swain   were            eventually nol prossed.                      Swain brought suit under 42 U.S.C.   1983 and Mass.            Gen.  Laws  ch. 12,     11H,  11I,  alleging that  the search            humiliated  her and  caused  lasting emotional  damage.   The            district court  granted summary judgment for  the defendants.            The court held that  there were no material facts  in dispute            which would support  Swain's claims that  the search was  not            reasonable under  the Fourth Amendment and  that the officers            were not entitled to immunity.   We hold that, as  alleged by            Swain, a jury could find that the search was not justified by                                         -2-                                          2            a reasonable suspicion,  and that  the jury  should have  the            opportunity to resolve the  factual disputes pertinent to the            issue  of   whether  the   officers  were  entitled   to  the            protections of qualified immunity.   Swain fails, however, to            meet the  exacting standards for municipal  liability under              1983, even on  her version  of the facts.   Accordingly,  the            judgment of the district court with respect to the individual            defendants is reversed, but the grant of  summary judgment as            to the Town of North Reading is affirmed.                                          I.                      We  review the facts in the light most favorable to            Swain, the party opposing summary judgment.  On May 18, 1993,            Kelli  Swain and  her  boyfriend,  Christopher Milbury,  went            apartment hunting in the Danvers, Massachusetts area.  Around            10:00  a.m., after the couple  had been driving  for a little            while,  Milbury told  Swain that  he needed  to pick  up some            things at Moynihan  Lumber.   Swain waited in  the car  while            Milbury went into the  store; he was gone about  ten minutes.            When Milbury got back,  he placed a bag  behind the seat  and            started to leave the parking  lot.  As they drove out  of the            parking lot, Swain saw  Moynihan Lumber employees pointing at            the car; she  also saw a police cruiser pulling  into the lot            just as she and Milbury were pulling out.                      Swain  became very  upset.   She  began questioning            Milbury about what was going on.  Then, after they had driven                                         -3-                                          3            200  or  300  yards,  the  police  cruiser,  which  had  been            following the  couple since  the parking lot,  turned on  its            blue lights  and its  siren; Milbury  pulled their  car over.            Officer Robert  Marchionda then  approached  the vehicle  and            Milbury got out of the car.  Swain remained in the  car for a            minute or two,  and then got out  when she saw Milbury  being            handcuffed.   As  Swain  got out,  she  dropped a  baggie  of            marijuana on the ground  about three feet away from  the car.            Officer Marchionda  had seen Swain  put her hands  behind her            back and  drop an object  onto the grass,  but could not,  at            that point, identify the  object.  Officer Marchionda radioed            for backup, and another  officer, Officer Romeo, arrived soon            thereafter.   Swain  then  approached the  officers, but  was            stopped  by one of them,  who restrained her  with his hands.            She asked what  was going on,  and was told that  Milbury was            suspected  of taking  things from  Moynihan Lumber.   Officer            Marchionda then arrested Swain and handcuffed her.   While he            was handcuffing her,  he saw  that the dropped  object was  a            baggie of marijuana.  He retrieved it.  Swain was pat frisked            at the scene, but nothing was found on her person.                       When the police searched  the car, they found $400            worth of hardware  in the  trunk, which had  been taken  from            another store in Gloucester, Massachusetts, and  another $400            worth of  sawblades, wrapped in  a hardware flyer,  under the            front  seat.   Swain  was  surprised to  see  the merchandise                                         -4-                                          4            there.   The  police implied  that she  was an  accomplice to            Milbury's  theft;  she kept  saying  that  she  did not  know            anything about it.   Milbury also told the police  that Swain            was innocent.                      Neither of  the officers  ever asked her  about the            marijuana on the  ground.  Swain did  not see anyone pick  up            the marijuana and did  not know if  anyone had seen her  drop            it.                       After about thirty minutes at the scene, Swain and            Milbury were transported  in a  police cruiser  to the  North            Reading Police Station.   When  she got to  the station,  her            handcuffs  were removed.  Swain was seated at a booking desk,            and an  officer had  her sign  a rights card.   Matron  Laura            Spinney, the chief  of police's secretary, was  called to the            booking desk because a female was under arrest.                      While in the booking area, Swain asked to go to the            bathroom.   Matron Spinney escorted  her to a  bathroom,  but            did not  come in with  her.  Swain  was allowed to  close the            door almost all of  the way, leaving it  open just a  little.            Spinney stood outside the  door to the room, where  she could            hear Swain using the facilities, but could not see Swain.              Swain  then returned to the  booking area, and  was told that            she  could  make a  phone call.   She  was  shown to  a small            office, and a police  officer stood outside.  She  called her            attorney and spoke with him for five to ten minutes.                                         -5-                                          5                      While  Swain was  seated in  the booking  area, her            pocketbook was searched by  Spinney.  Spinney found cigarette            rolling papers  in the  pocketbook.   No one  discussed these            papers  with Swain.    At that  point,  one of  the  officers            advised  Swain that marijuana had been found at the scene and            that  she  was going  to be  charged  in connection  with it.            Swain denied that it was her marijuana.                       Swain  was  then  fingerprinted  and  photographed.            Officer  Ed  Hayes,  the  prosecuting  officer and  detective            department supervisor,  ordered Matron Spinney  to take Swain            to a  cell.  Spinney pat  frisked Swain before taking  her to            the cell and  found nothing on her.  Swain  was left alone in            the  cell  for about  twenty  minutes.   According  to Swain,            Sergeant  Hayes  then  came  to her  cell  and  attempted  to            question  her  about Milbury's  criminal  activities.   Hayes            yelled at Swain, telling her that she was lying, and that she            should tell him  what was going  on.   Swain, who was  crying            hysterically, kept repeating that she honestly knew nothing.             According to Swain,  Hayes' questioning lasted  approximately            fifteen minutes and then he "walked out in a huff."                      Hayes states that he only  stayed with Swain in the            cell  area   for  approximately  one  minute.     He  has  no            recollection  of what  he discussed  with Swain,  but asserts            that  it would  be  normal  procedure  for  him  to  talk  to            detainees  to advise them about  their arraignments.  He does                                         -6-                                          6            not  recall interrogating  Swain about  Milbury's activities,            but cannot state  that he did not  do so.    Milbury, who was            located  in  another cell  where he  could  hear but  not see            Swain, stated that  he heard  Hayes talking to  her and  also            heard Swain crying and saying that she was innocent.                      About five  to ten minutes after  Hayes' departure,            Spinney returned and apologetically informed Swain that Hayes            had  ordered her  to  strip  search  Swain.    It  is  Hayes'            testimony  that he  believes  he would  have  ordered such  a            search prior to speaking  with Swain.  Spinney does  not know            whether  the search was  ordered before or  after Hayes spoke            with Swain, but knows that Hayes did not order a strip search            when  he originally told Spinney  to take Swain  to the cell.            Spinney states, however, that the  order to strip search came            almost  immediately after she brought Swain  to the cell, and            not a significant amount of time later.                        Swain  could  not  understand  why  she  was  being            searched and  began crying again. Spinney  then ordered Swain            to remove all of  her clothing except for  her bra.   Spinney            shook out  each item as Swain took it off.  Spinney then made            Swain  bend over  and spread  her buttocks.   Swain  was very            upset and shaking uncontrollably the entire time.   Swain was            then  told she  could  get dressed.    Spinney found  nothing            during  her  search.   The  entire  procedure lasted  fifteen            minutes.   Hayes had not told  Spinney what to look  for, but                                         -7-                                          7            Spinney  knew that marijuana had been found at the scene, and            assumed that she was looking for drugs.                       Swain asserts that, before  she was asked to strip,            Spinney  assured Swain that the video camera in the cell area            was already off. Swain did not  see her turn the camera  off.            Chief of  Police Henry  Purnell testified, however,  that the            station cameras, including  the one in  the female cell,  are            constantly left on.  Videotapes are sometimes made from these            cameras,  but the  Department has  no policies  or procedures            concerning the making, storage,  or retention of these tapes.            Matrons  are  instructed to  turn  the  cell  camera off,  by            pressing a button, when conducting  a search.  Spinney states            that  she turned  the camera  off with  a wall  switch before            searching Swain, but  does not recall telling  Swain that the            camera was off  or making  any comments about  the camera  at            all.                       Milbury, who had an extensive criminal record,  was            never strip searched.   Hayes was aware of Milbury's  history            of drug convictions and  knew that Milbury was  on probation,            having pulled the  records while booking Milbury.   Swain had            no prior criminal convictions.                      Officer  Hayes,  for his  part,  tells  a different            story.  He asserts that he ordered the strip  search of Swain            immediately  upon  his arrival  at  the  booking desk,  which            occurred as soon as he was informed that the arrests had been                                         -8-                                          8            made,  and, he believes, before he spoke with her.  According            to Hayes, he ordered the search because the arresting officer            showed  him the marijuana and  informed him that  Swain was a            principal suspect  in a narcotics incident.   He also asserts            that  he  suspected Swain  of  carrying  a concealed  weapon,            although  he   acknowledges  that  this  was   a  generalized            suspicion  of narcotics  suspects,  rather  than a  suspicion            based on any characteristics of Swain.                      Later that day, Milbury and Swain were arraigned in            Woburn District Court and released on their own recognizance.            All charges  against Swain  were eventually "nol  prossed" or            continued  without a  finding.    Swain  suffered  continuing            emotional  trauma  as  a  result  of  the  search  and sought            counseling.                           The  Town  of  North  Reading's   policy  on  strip            searches is outlined  in a memo on "Inventory Search Policy,"            prepared in 1989 by training officer Lieutenant Edward Nolan.            The  Policy states that: "A  strip search of  the arrestee is            warranted only if the  police have probable cause  to believe            that  the arrestee is concealing contraband or weapons on his            body."  Chief Purnell testified that, in any arrest involving            drugs, all arrestees are strip searched.  The shift commander            -- normally the highest-ranking officer  on duty -- makes the            determination of when a strip search is warranted.                                          -9-                                          9                      The Municipal Police  Institute (MPI), a  statewide            police  association, publishes a  book called "Police Manual:            Policies  & Procedures."   Chief  Purnell testified  that the            North  Reading  police  adhere  to  the  MPI  policies.   The            relevant MPI policy is as follows:                      A   strip  search   of  an   arrestee  is                      warranted    only   if    officers   have                      reasonable suspicion to believe  that the                      arrestee  is   concealing  contraband  or                      weapons on his body.                      1.   All body strip-searches must  be approved                           by   the  officer-in-charge,   who  shall                           consider the following question:                                Is  the crime  one that  is normally                                associated    with    weapons     or                                contraband?                           Only if  the answer  to this  question is                           yes and  there is a  reasonable suspicion                           that   the   arrestee   has  weapons   or                           contraband  on his  person  will  a  body                           strip-search be authorized.                      2.   Body  cavity  searches   should  not   be                           conducted    without the express approval                           of the officer-in-charge,  and require  a                           search warrant signed by a judge.                 However,  both  Sergeant Hayes  and Matron  Spinney testified            that they were unaware that North Reading had any policy with            regard  to strip searches.   Hayes testified that  it was his            policy  to strip  search individuals whenever  narcotics were            involved in the case.  Nonetheless, he  did not order a strip            search of Milbury.                                         II.                                         -10-                                          10                      Swain claims, under 42 U.S.C.   1983 and Mass. Gen.            Laws ch. 12,     11H, 11I, that Laura Spinney,  Edward Hayes,            and the Town of  North Reading violated her rights  under the            United States and  Massachusetts Constitutions by  subjecting            her to  an unreasonable  search.   On defendants'  motion for            summary judgment, the district  court held that, under United                                                                   ______            States v. Klein, 522 F.2d 296 (1st Cir. 1975), the search  of            ______    _____            Swain  was within  the bounds  of the  Fourth Amendment.   It            thought  Klein unaffected  by Bell  v. Wolfish, 441  U.S. 520                     _____                ____     _______            (1979).  The district court further  held that the individual            defendants were, in any event, entitled to qualified immunity            from suit.   As to  the Massachusetts law  claims, the  court            found that,  in this  area, Massachusetts  constitutional law            tracked the  federal standards.  Finally,  the district court            found that  Swain had failed  to meet the  exacting standards            for municipal liability under   1983.                      Swain argues  on appeal  that the police  must have            probable  cause to  believe  that an  arrestee is  concealing            weapons or contraband in order to strip search that arrestee.            She further argues that, even if the search needed only to be            supported by  a reasonable  suspicion, no such  suspicion was            present  and that the officers  are thus not  entitled to the            protections of qualified immunity.                                          -11-                                          11                      We  review  the district  court's grant  of summary            judgment  de novo.   EEOC v.  Amego, Inc., 110  F.3d 135, 141                      _______    ____     ___________            (1st Cir. 1997).                                           III.                      A  strip  and  visual  body  cavity  search  of  an            arrestee must  be justified, at  the least,  by a  reasonable            suspicion.   Because  a jury  could find  that  Officer Hayes            acted  without  a   reasonable  suspicion   that  Swain   was            concealing  drugs or weapons, we find that Swain has stated a            claim  against  the   individual  defendants  sufficient   to            withstand a motion for  summary judgment.  Furthermore, while            some  courts have  suggested that  a higher  standard may  be                                                 ______            necessary to justify  a strip search  and visual body  cavity            inspection, it  was clearly  established at  the time  of the            search  that  the  Fourth   Amendment  requires  at  least  a                                                             _________            reasonable suspicion  to  conduct these  types  of  searches.            Significant factual disputes remain, rendering  it impossible            to  resolve  conclusively the  immunity  question on  summary            judgment.            A. Strip  Searches, Visual  Body Cavity Inspections,  and the            _____________________________________________________________            Fourth Amendment            ________________                      "[I]n the case of a lawful custodial arrest a  full            search of the person is not only an exception  to the warrant            requirement  of   the  Fourth   Amendment,  but  is   also  a            'reasonable' search under that  amendment."  United States v.                                                         _____________                                         -12-                                          12            Robinson, 414 U.S. 218, 235 (1973).  Thus, under Robinson, if            ________                                         ________            the arrest was lawful,  a searching officer does not  need to            have  any further  justification for  performing a  full body            search of an arrestee.  See United States v. Bizier, 113 F.3d                                    ___ _____________    ______            214, 217 (1st  Cir. 1997).   Moreover, a  search incident  to            arrest need not  occur at the scene  of the arrest, but  "may            legally be conducted  later when the  accused arrives at  the            place of detention."  United States v. Edwards, 415 U.S. 800,                                  _____________    _______            803 (1974).                      However, Robinson  did not hold  that all  possible                               ________            searches  of an arrestee's body are automatically permissible            as a  search incident to  arrest.  To the  contrary, any such            search must still be reasonable:                      Holding  the Warrant  Clause inapplicable                      to  the  circumstances present  here does                      not   leave  law   enforcement  officials                      subject to no restraints.   This type  of                      police conduct "must [still] be tested by                      the     Fourth    Amendment's     general                      proscription     against     unreasonable                      searches and seizures."            Edwards, 415 U.S. at 808 n.9 (quoting Terry v. Ohio, 392 U.S.            _______                               _____    ____            1, 20 (1968)).  In Robinson  itself, the Court noted that the                               ________            search at  issue, while  thorough, did  not have "extreme  or            patently abusive  characteristics."  414 U.S.  at 236 (citing            Rochin  v.  California,  342 U.S.  165  (1952)).    Later, in            ______      __________            Illinois  v.  Lafayette,  462  U.S.  640  (1983),  the  Court            ________      _________            explicitly stated that "[w]e  were not addressing in Edwards,                                                                 _______            and do not discuss  here, the circumstances in which  a strip                                         -13-                                          13            search of an arrestee may or may not be appropriate."  Id. at                                                                   ___            646 n.2.   "Robinson simply  did not authorize"  a strip  and                        ________            visual  body cavity search.  Fuller v. M.G. Jewelry, 950 F.2d                                         ______    ____________            1437, 1446 (9th Cir. 1991); see also Mary Beth G.  v. City of                                        ________ ____________     _______            Chicago,  723 F.2d 1263, 1271 (7th Cir. 1983)("[T]he Robinson            _______                                              ________            court simply  did not  contemplate the  significantly greater            intrusions   that   occur[]"   in  a   visual   body   cavity            inspection.).                       A strip and visual body cavity search thus requires            independent analysis under the Fourth Amendment.   In Bell v.                                                                  ____            Wolfish,  441 U.S. 520  (1979), the Supreme  Court noted that            _______            "[t]he test  of reasonableness under the  Fourth Amendment is            not capable of precise definition or mechanical application."            Id. at 559.   Rather, the evaluation of the constitutionality            ___            of a warrantless search                      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.   In Wolfish,  the Supreme  Court applied this  balancing            ___      _______            test  to a  prison policy  that required  arraigned pre-trial            detainees  to   "expose  their   body  cavities  for   visual            inspection  as a part of a strip search conducted after every            contact visit  with a  person from outside  the institution."            Id. at 558.   Noting that "this  practice instinctively gives            ___                                         -14-                                          14            [the Court] the most pause," id. at 559, the Court found only                                         ___            that  visual body cavity  searches can "be  conducted on less            than probable  cause."  Id. at  560.  In so  holding, Wolfish                                    ___                           _______            "did not, however, read out of the Constitution the provision            of  general  application  that   a  search  be  justified  as            reasonable under the circumstances."  Weber v. Dell, 804 F.2d                                                  _____    ____            796, 800 (2d Cir. 1986).                      In applying the Wolfish balancing  test to searches                                      _______            of  the type  to  which  Swain  was  subjected,  courts  have            recognized that strip and visual body cavity searches impinge            seriously upon the values that the Fourth Amendment was meant            to protect.  These  searches require an arrestee not  only to            strip naked  in front of a  stranger, but also  to expose the            most private  areas of her body to others.  This is often, as            here, done  while the person  arrested is required  to assume            degrading  and  humiliating  positions.    Our   circuit  has            "recognize[d], as  have all  courts that have  considered the            issue, the severe if  not gross interference with a  person's            privacy that  occurs when guards conduct  a visual inspection            of  body cavities."   Arruda v. Fair, 710  F.2d 886, 887 (1st                                  ______    ____            Cir.  1983).    The  Seventh  Circuit  has  described  "strip            searches  involving the  visual  inspection of  the anal  and            genital  areas  as   demeaning,  dehumanizing,   undignified,            humiliating, terrifying, unpleasant, embarrassing, repulsive,            signifying degradation  and submission."   Mary Beth  G., 723                                                       _____________                                         -15-                                          15            F.2d  at 1272  (internal quotation  marks omitted);  see also                                                                 ________            Wood v.  Clemons, 89 F.3d 922, 928 (1st Cir 1996) ("[A] strip            ____     _______            search can hardly be characterized  as a routine procedure or            as a minimally invasive means of maintaining prison security.            Indeed, a  strip search, by  its very nature,  constitutes an            extreme  intrusion  upon  personal  privacy, as  well  as  an            offense  to the dignity of  the individual."); Kennedy v. Los                                                           _______    ___            Angeles   Police  Dep't,   901  F.2d   702,  711   (9th  Cir.            _______________________            1990)("Strip  searches involving  the  visual exploration  of            body cavities are dehumanizing and humiliating.").                      On  the other side of the scales, courts must weigh            the  legitimate needs  of  law  enforcement.    Institutional            security  has  been  found  to  be  a  compelling  reason for            conducting warrantless strip and visual body cavity searches.            See, e.g., Wolfish, 441 U.S. at 559 (prisoner  strip searches            ___  ____  _______            after contact visits justified because detention facility "is            a unique place fraught with serious security dangers").  Some            courts  have held that a warrantless strip search may also be            justified  by the  need  to discover  and preserve  concealed            evidence of a crime.   See, e.g., Justice v.  Peachtree City,                                   ___  ____  _______     ______________            961 F.2d 188, 193 (11th Cir. 1992).  But see Fuller, 950 F.2d                                                 _______ ______            at 1446 (strip and  visual body cavity search with  less than            probable cause only permitted to protect institutional safety            and  security;  search  for  evidence must  be  justified  by            probable cause).                                         -16-                                          16                      Balancing  these  interests, courts  have concluded            that, to be  reasonable under Wolfish, strip and  visual body                                          _______            cavity searches  must be justified  by at least  a reasonable            suspicion that  the  arrestee  is  concealing  contraband  or            weapons.1  See,  e.g, Justice,  961 F.2d at  192; Masters  v.                       ___   ___  _______                     _______            Crouch,  872 F.2d 1248, 1255 (6th Cir. 1989); Weber, 804 F.2d            ______                                        _____            at 802; Stewart  v. Lubbock  County, 767 F.2d  153, 156  (5th                    _______     _______________            Cir.  1985); Giles v. Ackerman,  746 F.2d 614,  615 (9th Cir.                         _____    ________            1984); Mary Beth  G., 723 F.2d at 1273.   This court has held                   _____________            that the reasonable suspicion standard is the appropriate one            for justifying strip  searches in other contexts.   See Wood,                                                                ___ ____            89  F.3d   at  929   (prison  visitors);  United   States  v.                                                      _______________            Uricoechea-Casallas, 946  F.2d 162, 166 (1st  Cir. 1991)(non-            ___________________            routine  border searches);  cf. Burns  v. Loranger,  907 F.2d                                        ___ _____     ________            233, 236-38 (1st Cir.  1990) (officers protected by qualified            immunity for warrantless strip search of arrestee where there            were  exigent circumstances  and  probable cause  to  believe            controlled substance  would be found on  arrestee's person).             Accordingly,  it  is  clear  that  at  least  the  reasonable            suspicion  standard  governs  strip and  visual  body  cavity            searches in the arrestee context as well.                                            ____________________            1.  As noted above, the Ninth Circuit has held that, absent a            threat  to  institutional  security, the  higher  showing  of            probable cause is required to justify such a search.  Fuller,                                                                  ______            950 F.2d at 1446.                                         -17-                                          17                      Defendants, and the  court below, rely upon  United                                                                   ______            States v. Klein, 522 F.2d 296 (1st Cir. 1975).  In that case,            ______    _____            the  defendant, who was arrested after a sale of cocaine, was            subjected to a strip search, including a visual inspection of            his rectum.   Id. at 299.  This court approved that search as                          ___            "[a] post-arrest  search of  the person, plainly  approved by            Edwards," and  found that a lack  of individualized suspicion            _______            that  the suspect was  harboring evidence did  not render the            search unreasonable.  Id. at 300 & n.2.                                    ___                      Klein  was decided before significant Supreme Court                      _____            precedent  in the  area,  and we  are  bound by  the  Supreme            Court's  developing  doctrine.    Klein  predates  Lafayette,                                              _____            _________            decided in 1983, where the Supreme Court stated that  Edwards                                                                  _______            did  not answer  the  question of  when  a strip  search  was            appropriate.  Lafayette,  462 U.S.  at 646 n.2.   Klein  also                          _________                           _____            predated  Wolfish,  with  its  explicit  recognition  of  the                      _______            invasiveness  of  strip  and  visual  body  cavity  searches.            Wolfish, 441 U.S. at 558.  Subsequent to Klein, and sensitive            _______                                  _____            to  the developing  doctrine,  this  circuit  has  repeatedly            recognized that strip and/or  visual body cavity searches are            not routine, and must be carefully evaluated.  See Burns, 907                                                           ___ _____            F.2d at 236-37;  Bonitz v.  Fair, 804 F.2d  164, 170-72  (1st                             ______     ____            Cir.  1986); Blackburn v. Snow,  771 F.2d 556,  564 (1st Cir.                         _________    ____            1985); Arruda, 710 F.2d  at 887.  Accordingly, to  the extent                   ______            that Klein held  that strip and  visual body cavity  searches                 _____                                         -18-                                          18            are simply searches incident to arrest, and do not need to be            further tested for reasonableness under the Fourth Amendment,            it  does not  survive  Lafayette, Wolfish,  and this  court's                                   _________  _______            subsequent strip search decisions.             B. The Search of Swain            ______________________                      Turning  to  the  particular search  at  issue,  we            conclude, taking all the facts in the light most favorable to            Swain,   that  a  jury   could  find  that   the  search  was            unreasonable   and  thus   violated  the   Fourth  Amendment.            Accordingly,  we find  that  Swain has  stated a  trialworthy            claim under 42 U.S.C.   1983.   On these facts, there appears            to be the distinct possibility that Officer Hayes ordered the            strip search  in retaliation for his  failed interrogation of            Swain  in her cell, imposing  sexual humiliation on  her as a            punishment  for  what he  perceived  as  her non-cooperation.            Hayes'  angry  response  to  Swain's  inability   to  provide            information about Milbury's activities  and the timing of the            search  raise this inference.  This possibility distinguishes            this  case from Klein, where  the court found  that there was                            _____            "no evidence that the stripping was a pretext to humiliate or            degrade."  Klein, 522 F.2d at 300.2  We  must   thus  examine                       _____                                            ____________________            2.  We also recognize that, under United States v. Whren, 116                                              _____________    _____            S. Ct. 1769 (1996), a police officer's subjective motivations            do not  serve to  invalidate a  search for  exclusionary rule            purposes, so  long as  the search was  objectively reasonable            under the circumstances.   Whren, however, also stressed that                                       _____            "the Constitution prohibits selective enforcement of the  law            based on considerations such  as race," id. at 1774,  and, we                                                    ___                                         -19-                                          19            whether, on these facts, an objective  officer would have had            a  reasonable suspicion  that Swain  was concealing  drugs or            contraband on her  person.  Three factors  suggest that there            were  not adequate  grounds to justify  the strip  and visual            body cavity search of Swain.   First, there is the timing  of            the search.  Swain had been alone in the cell for some period            of  time  before  she was  searched  and  no  one thought  it            important to  search  her before  she  angered Hayes  by  not            giving  him   the  information  he  sought.     Perhaps  more            importantly,  she had been allowed  to go to  the bathroom by            herself,  unobserved, prior to being taken to her cell.  This            also  indicates that no one thought she had secreted drugs in            her  private parts.    Cf. Burns,  907  F.2d at  238  (common                                   ___ _____            knowledge  that  drug  users   and  dealers  with  controlled            substances on their persons often attempt to flush drugs down            the  toilet).  If a warrantless strip search may be justified            by the need to avoid  the destruction of concealed  evidence,            Swain already had had  ample opportunity to destroy any  such            evidence.  To the extent there was any reason to believe such                                            ____________________            would assume, gender.   The exclusionary rule, as the Supreme            Court  recognized in  Malley  v. Briggs,  475  U.S. 335,  344                                  ______     ______            (1986), balances different interests than  those in a    1983            action.  ("While  we believe the  exclusionary rule serves  a            necessary  purpose, it  obviously does  so at  a considerable            cost  to the society as a whole, because it excludes evidence            probative  of guilt.  . .  .   On the  other hand,  a damages            remedy  for [a  Fourth  Amendment violation]  imposes a  cost            directly on the officer  responsible . . ., without  the side            effect of hampering a criminal prosecution.").                                         -20-                                          20            evidence  still existed,  further delay  to obtain  a warrant            would  not   have   significantly  increased   the  risk   of            destruction.   This was  particularly true because  Swain was            kept under observation and recorded by video camera while  in            the holding cell.                      Second, as noted, the most compelling justification            for  warrantless strip  and  visual body  cavity searches  is            institutional security.  It  is uncontroverted that, prior to            her  arraignment, Swain  was the  only person in  the women's            holding  cell  of  the North  Reading  Police  Station.   Her            arraignment  was later the  same afternoon, and  she was then            released,  on her own recognizance.   There was  no risk that            she  would come into contact with other prisoners, or be able            to smuggle  contraband or weapons into  a secure environment.            Hayes  stated that  he  believed that  Swain, as  a narcotics            suspect,  might have been carrying  a concealed weapon but he            did not assert  that Swain posed  a threat  to his safety  or            that of  others in  the police  station.   The  institutional            security justification  thus appears  to be absent  from this            case.                        Third, there  is the differential treatment  by the            police  of  the young  woman and  her  boyfriend.   Swain and            Milbury   were  first  pulled   over  because   of  Milbury's            shoplifting activities.  Officer  Hayes stated that, prior to            searching Swain,  he had examined both  Swain's and Milbury's                                         -21-                                          21            records. Officer Hayes knew that Milbury was on probation and            had  a history of drug  convictions.  By  contrast, Swain did            not  have a  criminal  record.   Milbury  had told  officers,            including Hayes, that the marijuana was his.  Yet Milbury was            not strip searched.  If there was an objective basis -- apart            from  retaliation -- for stripping Swain,  it would have been            objectively  reasonable, and  more so,  to search  Milbury as            well.                      On  the other  hand,  Swain did  drop  a baggie  of            marijuana at the scene of the crime.  Officer Hayes expressed            the view (belied by his failure to strip search Milbury) that            a strip search was  justified whenever narcotics are involved            in  the case.   This is  not consistent with  either the Town            policy,  which requires  probable cause,  or the  MPI policy,            which requires an  individualized suspicion,  even where  the            crime involves contraband  or weapons.   The record does  not            reveal  how much marijuana  was in the  baggie Swain dropped,            nor  does  it  reveal   whether  possession  of  that  amount            constitutes  a misdemeanor  or a  felony  under Massachusetts            law.  Nothing in the record suggests that Swain was suspected            of being a distributor of marijuana.  The fact that Swain may            have possessed  some unspecified  amount of marijuana  is not            enough  to  overcome,  as  a  matter  of  law,  the  factors,            discussed  above, under which a jury could find the search of            Swain unreasonable.                                         -22-                                          22                      Accordingly,  we  hold that  a jury  could lawfully            find that there was no objectively reasonable basis for strip            searching  Swain and that, on these facts, Swain has stated a            claim  for violation of her Fourth Amendment right to be free            from  unreasonable searches that  survives defendants' motion            for summary judgment.            C. Qualified Immunity            _____________________                      Defendants  assert  that they  are,  in  any event,            entitled to  qualified immunity  from suit.    There are  two            prongs  to the  qualified immunity  analysis. First,  was the            constitutional right in  question clearly established  at the            time  of the alleged violation?   St. Hilaire  v. Laconia, 71                                              ___________     _______            F.3d 20, 24  (1st Cir. 1995).  That is a  question of law for            the  court.   Elder v.  Holloway, 510  U.S. 510,  516 (1994).                          _____     ________            Second,  would  a  reasonable,  similarly  situated  official            understand   that  the   challenged  conduct   violated  that            established right?  St. Hilaire, 71 F.3d at 24.                                  ___________                      The  Fourth  Amendment   right  to  be   free  from            unreasonable strip searches has long been clearly established            in this circuit, as elsewhere.   See Burns, 907 F.2d at  236;                                             ___ _____            Blackburn,  771 F.2d at 569 ("It can hardly be debated that .            _________            .  .  in 1977,  [there  was] a  'clearly  established' Fourth            Amendment right to  be free of unreasonable  searches.").  As            discussed  above, Klein's  holding  that such  a search  is a                              _____            reasonable search  incident to  arrest had been  abrogated by                                         -23-                                          23            subsequent  Supreme Court  and First  Circuit cases,  and had            been  squarely  rejected  by  the  other  circuit  courts  to            consider the issue.  See Fuller,  950 F.2d at 1446, 1449 n.11                                 ___ ______            (holding that strip search with visual body cavity inspection            was  not justifiable as a  search incident to  arrest but was            governed by higher standard, and rejecting Klein);  Mary Beth                                                       _____    _________            G., 723 F.2d at 1271 n.7 (searches like the one  in Klein are            __                                                  _____            only constitutional  where there is a  reasonable belief that            arrestee is concealing  contraband; routine post-arrest strip            search of misdemeanants is unconstitutional); see also Weber,                                                          ___ ____ _____            804 F.2d at 801 nn. 6 & 7, 803 (holding that it was, in 1986,            "clearly established" that policy of routine strip and visual            body cavity  searches of arrestees was  unconstitutional, and            citing  "ten opinions  from seven  circuits" that  refused to            condone such searches).  Defendants themselves agree that the            search  must be evaluated  under the  reasonableness standard            articulated by the 1979 Supreme Court decision in Wolfish.                                                               _______                      The  question   is  thus  whether   an  objectively            reasonable officer  would understand  that a strip  search of            Swain  was, under  these circumstances,  unreasonable.   This            prong of the inquiry,  while requiring a legal determination,            is highly fact specific, and may  not be resolved on a motion            for summary judgment when material facts are substantially in            dispute.    2  Nahmod,   Civil  Rights  and  Civil  Liberties                                     ____________________________________                                         -24-                                          24            Litigation: The Law of Section 1983   8.08, at 136-39 (3d ed.            ___________________________________            1991).                         The  ultimate  question   of  whether   a                      reasonable police officer,  on the  basis                      of information known  to him, could  have                      believed his actions  were in accord with                      constitutional  rights  is a  question of                      law, subject to  resolution by the  judge                      not the jury.  But if there is  a factual                      dispute,  that  factual  dispute must  be                      resolved by a fact finder.            St. Hilaire, 71 F.3d at 24 n.1  (internal citations omitted);            ___________            Figueroa-Rodriguez v.  Aquino, 863 F.2d 1037,  1041 (1st Cir.            __________________     ______            1988)("While the  qualified immunity inquiry  is ultimately a            question of law, it  may also necessitate determining certain            of the essential facts.")(citing  Anderson v. Creighton,  483                                              ________    _________            U.S.  635 (1987)); see also  Consolo v. George,  58 F.3d 791,                               ________  _______    ______            794 (1st Cir.)  (where law is clearly  established, and there            is ample evidence that officers acted unreasonably, proper to            submit  issue  of objective  reasonableness  to  the jury  on            special  interrogatories),  cert.  denied,  116  S.  Ct.  520                                        _____________            (1995).                      We recognize that the  immunity question should  be            resolved,  where possible, in  advance of trial.   See, e.g.,                                                               ___  ____            Veilleux  v.  Perschau,  101  F.3d  1,  2  (1st  Cir.  1996).            ________      ________            However, disposition  of the question on  summary judgment is            not  always   possible.    Here,  some   material  facts  are            significantly in dispute.  Swain's story and that  of Officer            Hayes conflict on   the timing of the relevant  events.  Some                                         -25-                                          25            proffers are supported  or contradicted  by other  witnesses,            including Spinney and  Milbury.  Hayes contends that,  as the            officer in charge of the investigation, he ordered the search            immediately  upon being  informed that a  narcotics violation            had occurred.  The timing of  when the search was ordered  is            essential to  a determination of whether  defendants' conduct            was objectively  reasonable. There  are thus  factual issues,            potentially turning on credibility,  that must be resolved by            the  trier of  fact.   Only  after  the resolution  of  these            conflicts  may  the trial  court  apply the  relevant  law on            objective reasonableness.3                       We   also  recognize   that  police   officers  are            protected  in  close  cases  by  the  doctrine  of  qualified            immunity, and that immunity serves to protect law enforcement            from  the chilling  threat of  liability.   Vargas-Badillo v.                                                        ______________            Diaz-Torres,  --- F.3d ----, 1997 WL 276662 (1st Cir. May 30,            ___________            1997); Joyce v. Town of Tewksbury, 112  F.3d 19, 23 (1st Cir.                   _____    _________________            1997)  (patent violation  of  law necessary  to strip  police            officers  of  qualified  immunity).     On  the  other  hand,            qualified  immunity does  not  protect  "those who  knowingly            violate  the law."    Malley v.  Briggs,  475 U.S.  335,  341                                  ______     ______                                            ____________________            3.  In St.  Hilaire, we  noted  that the  proper division  of                   ____________            functions   between   judge  and   jury   on   the  objective            reasonableness inquiry  may  be accomplished  either  through            special  interrogatories or through carefully structured jury            instructions.    St. Hilaire,  71 F.3d  at  24 n.1;  see also                             ___________                         ________            Nahmod, supra,   8.08,  at 137.  We leave  that decision here                    _____            to the trial court.                                           -26-                                          26            (1986).  Here, further  resolution of the facts  is necessary            to determine whether or not this case falls into the category            of "close cases" in  which the police are accorded  "a fairly            wide zone of protection."  Roy v. Inhabitants of the  City of                                       ___    ___________________________            Lewiston, 42  F.3d 691, 695 (1st Cir. 1996).  On the facts as            ________            related  by Swain,  Officer  Hayes used  a warrantless  strip            search  and  visual body  cavity  inspection  as  a  tool  to            humiliate and degrade her in  retaliation for her refusal  to            respond to interrogation.                      Independently  of the  issue  of  allegations  that            Officer  Hayes  deliberately violated  the  law  in order  to            retaliate,  as forbidden  by Malley,  Swain also  asserts the                                         ______            search is not,  on its facts,  objectively reasonable.   This            search, on Swain's allegations,  occurred after she had ample            opportunity to  dispose of any  hidden evidence and  when she            was alone in  a monitored  cell, posing no  danger to  others            that  might justify  hastily  proceeding without  a  warrant.            Such allegations,  if true, do  not represent a  "close case"            but a flagrant violation  of the Fourth Amendment's guarantee            against unreasonable searches.  Whether those allegations are            true or not must be resolved by the finder of fact.              D. Municipal Liability            ______________________                      Swain  claims that  the  Town of  North Reading  is            liable for the injuries that she suffered.  The Supreme Court                                         -27-                                          27            has recently clarified the  necessary showing for a  claim of            municipal liability under   1983:                      [I]n Monell and  subsequent cases we have                           ______                      required  a  plaintiff seeking  to impose                      liability  on a municipality under   1983                      to  identify  a  municipal   "policy"  or                      "custom"  that   caused  the  plaintiff's                      injury.                      . . . .                           As  our    1983  municipal liability                      jurisprudence illustrates, however, it is                      not enough for a    1983 plaintiff merely                      to identify conduct properly attributable                      to the municipality.   The plaintiff must                      also   demonstrate   that,  through   its                      deliberate conduct,  the municipality was                      the  "moving  force"  behind  the  injury                      alleged.   That is, a plaintiff must show                      that  the municipal action was taken with                      the requisite degree  of culpability  and                      must  demonstrate  a  direct causal  link                      between  the  municipal  action  and  the                      deprivation of federal rights.            Board of the County Comm'rs  v. Brown, 117 S. Ct. 1382,  1388            ___________________________     _____            (1997)  (discussing Monell v.  New York City  Dep't of Social                                ______     ______________________________            Servs., 436 U.S. 658 (1978), and progeny).              ______                      Here,  Swain  predicates municipal  liability  on a            failure to properly communicate to the police force a uniform            policy on  when strip searches  are appropriate  and who  may            authorize  them.  This failure  to train, Swain alleges, rose            to the level of  conscious indifference to the constitutional            rights of arrestees.  Swain accurately notes that the various            police personnel, including the  police chief, expressed some            confusion as to when strip searches are warranted.                                           -28-                                          28                      The Supreme Court addressed failure to train claims            in Brown:               _____                      We   concluded   in   Canton    that   an                                            ______                      "inadequate training" claim could  be the                      basis  for    1983 liability  in "limited                      circumstances."  We  spoke, however, of a                      deficient training "program," necessarily                      intended to apply  over time to  multiple                      employees.    Existence  of  a  "program"                      makes proof of fault at least possible in                      an   inadequate  training  case.    If  a                      program  does not  prevent constitutional                      violations, municipal  decisionmakers may                      eventually be  put on  notice that a  new                      program is  called for.   Their continued                      adherence  to an approach  that they know                      or  should know  has  failed  to  prevent                      tortious   conduct   by   employees   may                      establish the conscious disregard for the                      consequences  of  their  action   --  the                      "deliberate  indifference"--necessary  to                      trigger municipal liability.            Id. at 1390 (discussing and citing Canton v. Harris, 489 U.S.            ___                                ______    ______            378 (1989)).                      Swain  does   not,  however,  point  to  any  other            incidents in  which the  North Reading police  force violated            the rights of arrestees through strip and visual body  cavity            searches.   There    was thus  "no  notice to  the  municipal            decisionmaker,  based  on  previous violations  of  federally            protected rights, that his approach is inadequate."  Id.                                                                  ___                      The Supreme  Court has  left  open the  possibility            that a  failure-to-train claim can succeed  without showing a            pattern of  constitutional violations.  "[I]n  a narrow range            of  circumstances, a  violation of  federal  rights may  be a            highly  predictable consequence  of  a failure  to equip  law                                         -29-                                          29            enforcement officers with specific tools  to handle recurring            situations."  Id. at 1391.                            ___                      This is  not that  case.   Officer Hayes  and Chief            Purnell agreed  that every  officer was supplied  with policy            guidelines,  including periodic updates.   Lieutenant Nolan's            memo  requiring strip  searches to  be justified  by probable            cause  was such an update.   The police  officers also agreed            that the MPI, colloquially known as the  "police manual," was            to  be followed by, and  was available to,  the North Reading            force.  Apparently,  not all  the officers  had a  consistent            understanding of those materials.   However, it is undisputed            that North  Reading did have  an appropriate policy  that was            distributed to  the force; absent prior claims,  it cannot be            reasonably inferred  that Chief Purnell knew,  or should have            known,  that his  officers  were not  executing that  policy.            Accordingly,  Swain  cannot  make  the  requisite showing  of            "deliberate indifference"  to her constitutional  rights.  We            affirm the grant of summary judgment as to the Town of  North            Reading.            E. State Law Claim            __________________                      The  Massachusetts  Declaration of  Rights, article            14,   gives  every   person  the  right   to  be   free  from            "unreasonable searches."  The Massachusetts Civil Rights Act,            Mass. Gen. Laws ch. 12,    11H, 11I, provides a private right            of action for persons who are deprived of rights protected by                                         -30-                                          30            either federal or  state law.   The district court  concluded            that  the  protections  of  article  14  tracked  the  Fourth            Amendment protections  of the federal  Constitution, and that            the  search of  Swain was reasonable  under both  federal and            state  law.  We agree  that cases like  Rodriques v. Furtado,                                                    _________    _______            575  N.E.2d  1124  (Mass.  1991),  indicate  that  the  state            constitution  provides  at  least  the  level  of  protection            against  strip and visual  body cavity  searches as  does the            federal  Constitution.    However,  in  some  instances,  the            Supreme  Judicial  Court  has  concluded  that  "art[icle] 14            provides  more substantive protection  to criminal defendants            than does the Fourth Amendment."   Commonwealth v. Upton, 476                                               ____________    _____            N.E.2d 548,  556-57 (Mass. 1985) (rejecting  federal standard            for   determining  probable   cause  based   on  confidential            informant tips);  see also Commonwealth v.  Blood, 507 N.E.2d                              ________ ____________     _____            1029  (1987).  The Supreme Judicial Court has also noted that            the Massachusetts  law on body cavity  searches under article            14 remains uncharted territory.  Rodriques, 575 N.E.2d at 884                                             _________            n.8.  The SJC  did remark, however, that the federal cases on            searches in  prisons  were not  "germane"  to a  body  cavity            search of a suspect for evidence "because of the 'diminished'            Fourth  Amendment  rights of  prisoners and  their visitors."            Id. (citations omitted).   This remark certainly suggests the            ___            possibility  that  Massachusetts   law  might  place  greater                                         -31-                                          31            limitations  on  the  use of  strip  and  visual body  cavity            searches of arrestees than the federal Constitution does.                        We need  not attempt  to predict fully  what course            Massachusetts  law will take.  The Massachusetts Constitution            certainly does not provide  less protection than federal law.                                        ____            Having  found  that  the  search  of  Swain  may   have  been            objectively unreasonable under  the federal Constitution,  we            conclude that the law of the Commonwealth would at least view            the search  similarly, and  we therefore reinstate  her state            law claim against the individual defendants.                      Defendants contend that Swain cannot prove that her            injuries  were  perpetrated  by  "threats,  intimidation,  or            coercion" as  required under  Massachusetts law.   See, e.g.,                                                               ___  ____            Planned  Parenthood  League v.  Blake,  631  N.E.2d 985,  990            ___________________________     _____            (Mass. 1994).  The Supreme Judicial Court has accepted that a            "threat" may be defined  as an "exertion of pressure  to make            another  fearful or  apprehensive  of injury  or harm";  that            "intimidation" may  be defined as "putting [a person] in fear            for the purpose of compelling or deterring conduct"; and that            "coercion" may be  defined as the application of  physical or            moral  force so as to force someone to do something she would            otherwise  not have  done.  Id.   On  the facts  here, a jury                                        ___            could  find  that Officer  Hayes  used  the strip  search  to            humiliate or punish Swain and as a means of exerting moral or            psychological  pressure  designed  to  weaken  her  perceived                                         -32-                                          32            resistance to her questioning.   This could indeed constitute            "intimidation"  or  "coercion"  within  the  meaning  of  the            statute.                      The judgment  of the  court below is  affirmed with                                                            affirmed                                                            ________            respect  to the  Town  of North  Reading,  and reversed  with                                                           reversed                                                           ________            respect to the individual defendants.                                         -33-                                          33
