On December 10, 2018, the Fifth Circuit Court of Appeals decided Charlot v. City of Houston, et al.[i], in which the court examined whether officers were entitled to qualified immunity when they requested and obtained a body cavity search warrant for an arrestee they believed had concealed a controlled substance in the area of his buttocks. The facts of Charlot, taken directly from the case, are as follows:
Members of the Houston Police Department surveilled Charlot as he appeared to engage in multiple drug transactions, and then stopped him for traffic infractions. After Charlot consented to the search of his vehicle, officers found a pill bottle containing carisoprodol in someone else’s name. They arrested him for possession of a controlled substance. Officers patted Charlot down at the scene of the arrest and found no illegal narcotics on his person.
Based on information that Charlot may have been concealing crack cocaine on his person, police conducted another search incident to arrest at the Houston Police Department’s central jail facility. Officer Leonard Smith patted Charlot down and said that he felt something protruding about one inch from between Charlot’s buttocks. A jail employee confirmed that he also felt something between Charlot’s buttocks. Smith asked his superior officer, Sergeant Curtis Ford, for permission to perform a strip search, but Ford said, after conversation with his supervising lieutenant, that “the only way to determine if Charlot had anything concealed was if he consensually removed the object or if [the officers] could convince him to remove it.” Charlot insisted that there was nothing there, and refused either to allow officers to remove any object or to remove it himself. On Ford’s instructions, Smith and another officer, Officer Michael Glover, transported Charlot to a hospital that would perform a cavity search upon receiving a warrant.[ii]
During the same period, Officer Frank Medina filled out an affidavit describing the basis for the warrant application. In relevant part, it explained:
Officers Smith and Glover transported the suspect to central jail after he was charged with possession of a controlled substance for the soma. During a search incident to arrest Officer Smith stated that he felt something was protruding from in between Mr. Charlot’s buttocks. Officer Smith advised the jail staff, which then searched the suspect upon entering the facility and observed [sic] the jailor to state that he also felt something protruding from between Mr. Charlot’s buttocks. Mr. Charlot denied that anything was in between his cheeks; Officer Medina knows this to be consistent with a [sic] narcotics suspect in an attempt to hide contraband. As a result of the circumstances and the behavior of Mr. Charlot officers have reason to believe that Mr. Charlot is hiding contraband inside his person in an attempt to conceal from law enforcement. Mr. Charlot was asked to give officers consent to remove the contraband from his person and Mr. Charlot denied officers permission and stated he would not either.
The county magistrate signed a warrant authorizing the search of Charlot’s anal cavity for crack cocaine or pills.
Smith told the doctor that the officers were concerned that Charlot “had concealed illegal narcotics in his buttocks area and possibly now had secreted [them] inside his anus.” He explained the need “to determine if [there were] any concealed narcotics for Charlot’s safety and to further the investigation.” When the doctor was presented with the warrant, she performed a rectal examination; Smith remained in the room during the performance of the search. The doctor found nothing inside Charlot’s rectum.
Charlot pleaded guilty to possessing a controlled substance.[iii]
Charlot subsequently filed suit in federal district court and alleged that various officers and supervisors violated his rights under the Fourth and Fourteenth Amendments when they obtained a search warrant to search his anal cavity for drugs.
At the outset it is important to explain the two defenses raised by the officers. First, there is summary judgment. Summary judgment is appropriate when there is no dispute as to facts and the undisputed facts, as a matter of law, reveal there is no constitutional violation. Second, there is qualified immunity. When an officer is sued, if he or she raises qualified immunity as a defense, the plaintiff bears the burden to offer evidence to show (1) that the officer violated the plaintiff’s rights under the Constitution, and (2) that at the time of the violation, the law was “clearly established” such that any reasonable officer would have known the conduct was unlawful. Generally, a right is “clearly established” when there is factually similar case precedent that would put a reasonable officer on notice that his conduct was illegal or when the conduct is an “obvious” constitutional violation such that any reasonable officer would have known the conduct was unlawful.
Charlot’s first argument was that the officer who obtained the search warrant swore to false information in his affidavit. This type of claim is governed by the Supreme Court case, Franks v. Delaware.[iv] The court stated
In Franks v. Delaware, the Supreme Court held that an officer is “liable for swearing to false information in an affidavit in support of a search warrant, provided that: (1) the affiant knew the information was false or acted with reckless disregard for the truth; and (2) the warrant would not establish probable cause without the false information.” This extends to material omissions.[v] [emphasis added]
Charlot argued that the officer knew that the cavity search was unnecessary and that a strip search was all that was required, but instead he misled the magistrate that a strip search had already been conducted. However, the court noted that the affidavit contains no such statement or suggestion, but rather discussed the circumstances and behavior of Charlot. Specifically, the affidavit stated that the officer and a jailer felt something protruding between Charlot’s buttocks. This was consistent with the reports and the deposition testimony.
The court of appeals affirmed the grant of summary judgment in favor of all defendants on this claim.
Charlot’s second claim and third claim are closely related. Basically, Charlot alleged that the officers violated his rights in seeking, obtaining and then executing the body cavity search warrant.
The court first noted that invasive body cavity searches implicate a person’s “most personal and deep-rooted expectations of privacy” and, as such, the Fourth Amendment analysis must look closely at the facts and circumstances to determine if the intrusion was justifiable.[vi]
The court then set out to determine if the officers violated a clearly established right when they sought, obtained and executed the body cavity search warrant. The court stated
It is ordinarily “the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.” A warrant issued “by a non-biased magistrate is the ‘clearest indication’ that officers proceeded ‘in an objectively reasonable manner.'” When a plaintiff challenges a search authorized by warrant, our qualified immunity analysis hinges on whether the defendant unreasonably relied on the warrant. An officer is qualified immune from suit over his application for a search warrant “unless, ‘on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue.'” Once a warrant issues, an officer can only be held liable for acting on that warrant when “a reasonably well-trained officer would have known that the search or seizure was illegal despite the magistrate’s authorization.” At all stages, “in the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination”—so, “where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable.” [vii] [emphasis added]
The court then concluded that Charlot was not able to point to any facts or precedent that demonstrate that the search “so clearly unconstitutional that the defendants were prohibited from relying on the warrant.”[viii] In other words, there was no clearly established law prohibiting the or putting the officers on notice that seeking and relying on a search warrant would be unlawful in this circumstance. Thus, the plaintiff was unable to meet the second prong required to meeting qualified immunity. [Note: The court did not address the first prong of qualified immunity as they are not required to conduct that analysis in order.]
Therefore, the court of appeals affirmed the district court’s grant of qualified immunity on this claim.
Takeaways for officers:
- Officers should disclose all relevant facts related to in their arrest and search warrant affidavits, whether inculpatory or exculpatory. Do not merely state legal conclusions in affidavits; rather, state facts that form the basis of probable cause.
- Officers are protected from liability when relying on a warrant unless any reasonably well-trained officer would have known the search was illegal despite the warrant.
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Citations
[i] No. 17-20797 (5th Cir. Decided December 10, 2018)
[ii] Id. 2-3
[iii] Id. at 2-6
[iv] 438 U.S. 154 (1978)
[v] Charlot at 6 (internal citations omitted)
[vi] Id. at 8
[vii] Id. at 8-9 (internal citations omitted)
[viii] Id. at 10
