FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOELLE WAY, 

Plaintiff-Appellee,

v.

No. 04-55457 COUNTY OF VENTURA; ROBERT

BROOKS; KAREN HANSON, D.C. No.  Defendants-Appellants, CV-01-05401-CBM

and OPINION

ROBERT ORTIEZ, Ventura Police

Officer,

Defendant. 

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Chief Judge, Presiding

Argued and Submitted

December 8, 2005—Pasadena, California

Filed April 20, 2006

Before: Pamela Ann Rymer and Kim McLane Wardlaw,

Circuit Judges, and Edward C. Reed, Jr.,* District Judge.

Opinion by Judge Rymer;

Concurrence by Judge Wardlaw

*The Honorable Edward C. Reed, Jr., Senior United States District

Judge for the District of Nevada, sitting by designation. 

4475
COUNSEL

Alan E. Wisotsky and Jeffrey Held, Law Offices of Alan E.

Wisotsky, Oxnard, California, for the defendants-appellants.

Earnest C.S. Bell, Law Offices of Earnest C.S. Bell, Ventura,

California, for the plaintiff-appellee. 

OPINION

RYMER, Circuit Judge: 

We must decide whether Ventura County Sheriff Bob

Brooks and Deputy Karen Hanson are entitled to qualified

immunity for conducting a strip search with a visual cavity

inspection of Noelle Way during the booking process at a pretrial detention facility on a misdemeanor charge of being

under the influence of cocaine or methamphetamine in violation of California Health & Safety Code § 11550(a). This

requires us first to decide whether a strip search with a visual

cavity inspection can be justified based on Ventura County’s

blanket strip-search policy allowing such a search for

arrestees charged with any controlled substance offense

before placement in the general jail population. The district

court held that the search was unconstitutional, and we agree.

However, it was not clearly established at the time of Way’s

booking that strip searching persons arrested on drug charges

WAY v. COUNTY OF VENTURA 4479
is unreasonable. As the district court thought otherwise on this

issue, we reverse. 

I

On September 6, 2000, Ventura Police Officer Ortiz

encountered Way at her work place, the Red Cove Bar, where

she was a bartender. He observed that she had dilated pupils,

a rapid pulse rate, a nervous attitude and rapid speech. Based

on these observations, he suspected that she was under the

influence of cocaine or methamphetamine, a misdemeanor

violation of California Health & Safety Code § 11550(a), and

arrested her at 2:10 A.M. A blood sample taken from Way at

a hospital the night of the arrest revealed that the officer’s

suspicion was incorrect. 

Meanwhile, Ortiz took Way to Ventura County’s pretrial

detention facility for booking. The booking policy of the Ventura County Sheriff’s Department provided for a visual body

cavity search of all persons arrested on fresh misdemeanor

drug charges. The search must be performed by a deputy of

the same sex as the detainee, and it involves no touching. The

person arrested was to be searched immediately upon booking, without a waiting period for posting bail. 

Pursuant to the policy, Hanson sought and obtained her

supervisor’s approval to perform a body cavity search upon

Way. The sole justification was that Way had been arrested

for violating California Health & Safety Code § 11550(a).

According to Hanson, “the nature of the charges is viewed as

providing the reasonable suspicion required under the law to

perform a visual strip search.” 

The search involved a visual inspection of Way’s unclothed

body cavities, and it took place in a private room with only

Hanson present. Hanson directed Way to remove all her clothing. She then directed Way to remove her tampon and to tear

it and discard it in a wastebasket. Pursuant to the search pol4480 WAY v. COUNTY OF VENTURA
icy, Way was required to “bend forward, spread the buttocks,

and cough to allow for a visual inspection of the anal area”

as well as to “spread her labia at the same time to allow a

check of the vaginal area.” The search yielded no contraband,

weapons or drugs. 

The booking process lasted 26 minutes, from 3:10 A.M. to

3:36 A.M. Within 20 minutes after the completion of the body

cavity search, Way learned the amount of her bail. She was

placed in a holding cell with five or six other women, where

she was allowed to make phone calls. She remained there for

several hours. She then posted bail, and was released without

entering the jail’s general population. 

Way brought this civil rights action under 42 U.S.C. § 1983

against Brooks and Hanson, as well as the County of Ventura,

alleging that they violated her civil rights under the Fourth

and Fourteenth Amendments by subjecting her to a body cavity search following her arrest. The parties both filed motions

for summary judgment. The district court held that the search

violated Way’s constitutional rights because individualized

suspicion is required for arrestees who are not admitted to the

general jail population. It denied qualified immunity to

Brooks and Hanson on the basis of Giles v. Ackerman, 746

F.2d 614, 616-17 (9th Cir. 1984) (per curiam), overruled on

other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d

1037, 1040 n.1 (9th Cir. 1999) (en banc); Kennedy v. Los

Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1990) (as

amended), implied overruling on other grounds recognized by

Act Up!/Portland v. Bagley, 971 F.2d 298, 301 (9th Cir.

1992); and Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th

Cir. 1991), holding that a reasonable officer reviewing Ventura’s policy and the established law would have recognized

that the Sheriff Department’s policy was unconstitutional

because it did not further any legitimate penological interests.1

That ruling is the subject of this appeal. 

1Brooks and Hanson previously filed an appeal from the district court’s

order denying qualified immunity, which we dismissed as premature

because the court had not also determined whether Way’s constitutional

rights were violated. Way v. County of Ventura, 348 F.3d 808 (9th Cir.

2003). 

WAY v. COUNTY OF VENTURA 4481
II

We analyze qualified immunity using the two-step inquiry

set forth in Saucier v. Katz, 533 U.S. 194 (2001). The first

step of the Saucier analysis requires us to decide whether this

body cavity search violated Way’s constitutional rights. Id. at

201. If so, “the next, sequential step is to ask whether the right

was clearly established.” Id. For a right to be clearly established, its contours “ ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates

the right.’ ” Id. at 202 (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). The protection afforded by qualified

immunity “safeguards ‘all but the plainly incompetent or

those who knowingly violate the law.’ ” Brewster v. Bd. of

Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977

(9th Cir. 1998) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). 

A

Brooks and Hanson argue that the visual body cavity search

violated no constitutional rights because Sheriff’s Department

officials are entitled to deference on jail security matters, and

their interest in securing this jail during the booking process

outweighs Way’s right to be free from a compulsory visual

inspection of her genitalia and anus. They also contend that

the Sheriff Department’s strip search policy complies with

state law as set out in California Penal Code § 4030.2 Way

2California Penal Code § 4030(a) provides: 

The Legislature finds and declares that law enforcement policies

and practices for conducting strip or body cavity searches of

detained persons vary widely throughout California. Consequently, some people have been arbitrarily subjected to unnecessary strip and body cavity searches after arrests for minor

misdemeanor and infraction offenses. Some present search practices violate state and federal constitutional rights to privacy and

freedom from unreasonable searches and seizures. 

4482 WAY v. COUNTY OF VENTURA
responds that drug charges alone are insufficient to justify

such an extreme intrusion, where she was merely a misdemeanor arrestee charged with being under the influence of a controlled substance, who was detained for only a few hours and

was never housed with the jail’s general population. 

[1] We assess the constitutionality of a search by balancing

“the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S.

520, 559 (1979). This requires us to weigh “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.

[2] The scope of the intrusion here is indisputably a “frightening and humiliating” invasion, even when conducted “with

all due courtesy.” Giles, 746 F.2d at 617. Its intrusiveness

“cannot be overstated.” Kennedy, 901 F.2d at 711; see also

Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489-90 (9th

Cir. 1986) (“[T]he fact that a strip search is conducted reasonably, without touching and outside the view of all persons

other than the party performing the search, does not negate

It is the intent of the Legislature in enacting this section to protect

the state and federal constitutional rights of the people of California by establishing a statewide policy strictly limiting strip and

body cavity searches. 

Subsection (f) provides that “[n]o person arrested and held in custody on

a misdemeanor . . . offense, except those involving weapons, controlled

substances or violence . . . shall be subjected to a strip search or visual

body cavity search prior to placement in the general jail population” without “reasonable suspicion based on specific and articulable facts to believe

such person is concealing a weapon or contraband, and a strip search will

result in the discovery of the weapon or contraband.” To conduct such a

search requires authorization of the supervising officer on duty, which

“shall include the specific and articulable facts and circumstances upon

which the reasonable suspicion determination was made by the supervisor.” Cal. Penal Code § 4030(f). 

WAY v. COUNTY OF VENTURA 4483
the fact that a strip search is a significant intrusion on the person searched . . . .” (citation omitted)); Thompson v. City of

Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989) (“The feelings of humiliation and degradation associated with forcibly

exposing one’s nude body to strangers for visual inspection is

beyond dispute.”). 

The parties agree that the search took place in a private

room, behind closed doors, with no one present but Way and

Hanson, and there is no issue about how it was conducted. 

This leaves the question whether the intrusion was justified.

We recognize the difficulty of operating a detention facility

safely, the seriousness of the risk of smuggled weapons and

contraband, and the deference we owe jail officials’ exercise

of judgment in adopting and executing policies necessary to

maintain institutional security. Wolfish, 441 U.S. at 546-47,

559. However, this does not mean that a blanket policy is constitutionally acceptable simply by virtue of jail officials’ invocation of security concerns. Giles, 746 F.2d at 616. Rather,

the policy must be “ ‘reasonably related’ to the [detention

facility’s] interest in maintaining security.” Kennedy, 901

F.2d at 713 (citing Wolfish, 441 U.S. at 540). 

[3] Brooks and Hanson failed to show any link between

their blanket strip search policy and legitimate security concerns for detainees such as Way. See Giles, 746 F.2d at 617

(imposing burden on officials to demonstrate that security

interests warrant the serious invasion of privacy inflicted by

a strip search policy). They made only a conclusory submission that the purpose of the search protocol is “to provide

facility security and to ensure the inmate’s health and safety,”

and that inmates have “sometimes” ingested drugs to evade

detection. Nor did they adduce evidence of any deterrent

effect on persons such as Way who are spontaneously arrested

and detained temporarily at the facility for being under the influence.3 Cf. Wolfish, 441 U.S. at 559 (noting evidence in the

3Counsel suggested at oral argument that the facility had experienced

difficulties since the district court’s ruling in this case, but the record contains no evidence of whatever they might be. 

4484 WAY v. COUNTY OF VENTURA
record documenting detainees’ attempts to secrete money,

drugs, weapons and other contraband in body cavities). In

effect, they ask us to take security implications on faith. This

we cannot do. See Kennedy, 901 F.2d at 713 (declining to

accept the Los Angeles Police Department’s justification for

a blanket strip search policy as it rested only on assumptions

and societal judgments without documentation of risk). 

Brooks and Hanson maintain that all drug offenses inherently heighten security concerns because of the risk that persons arrested on drug charges will bring drugs with them.

Perhaps with respect to other types of drug offenses — about

which we express no opinion — but the record shows us nothing about this jail (or any other jail’s) experience with those

arrested on § 11550(a) charges. We do not disagree that in

some cases, the charge itself may give rise to reasonable suspicion; indeed, we so held in Thompson, where the felony

charged was grand theft auto and the offense was “sufficiently

associated with violence to justify a visual strip search.” 885

F.2d at 1447. We have also been careful to distinguish

charges that involve drugs and contraband as well as violence

when invalidating blanket strip search policies applied in

other contexts. See Kennedy, 901 F.2d at 716 (holding unconstitutional a strip search policy applied to person arrested for

stealing a roommate’s belongings, observing that “[n]o weapons, no drugs, no contraband, no violent acts of any kind were

involved”); Giles, 746 F.2d at 618 (declaring unconstitutional

a policy requiring that all persons booked on minor traffic

offenses be strip searched, while noting that the “offense was

minor and was related neither to drugs nor to weapons”).

However, we have never said that all offenses of any particular nature support reasonable suspicion. To the contrary, the

charge in Kennedy was for grand theft as it was in Thompson,

but we held that a strip search policy was unconstitutional as

applied to Kennedy because the grand theft charge there arose

out of an ordinary disagreement that did not in itself pose a

threat of violence in jail. 

WAY v. COUNTY OF VENTURA 4485
[4] We cannot see how the charge of being under the influence of a drug necessarily poses a threat of concealing (and

thereby using or trafficking) additional drugs in jail during the

limited time between booking and bail, or booking and placement in the general population. If not, it was unreasonable to

assume that Way harbored drugs in some cavity or other.4

“Reasonable suspicion may be based on such factors as the

nature of the offense, the arrestee’s appearance and conduct,

and the prior arrest record.” Giles, 746 F.2d at 617. Way was

under the control of the arresting officer from the time she

was taken into custody at work until booking. The officer perceived no indication that she was carrying drugs or contraband. Compare, e.g., People v. Wade, 208 Cal. App. 3d 305,

306-07, 256 Cal. Rptr. 189, 190-91 (Cal. Ct. App. 1989)

(holding that a body cavity search was justified by the arresting officers’ observation of the suspect apparently trying to

put something beneath his waistband). Hanson conducted a

pat down search before obtaining permission for the visual

cavity search, and it turned up nothing.5 Way was held with

several other detainees, but was not in the facility for long and

was never put into the general jail population. See Fuller, 950

F.2d at 1448 (“In determining the constitutionality of strip

searches of arrestees, courts have distinguished between

searches of detainees who were simply awaiting bail, and

searches conducted on inmates admitted or about to be admitted to the general jail population.”); Ward v. County of San

Diego, 791 F.2d 1329, 1333 (9th Cir. 1986) (“In most

4We have no occasion to comment on any other kind of drug offense,

which may have different characteristics that might lead to a different

analysis on a different record. See, e.g., United States v. Gonzalez-Rincon,

36 F.3d 859, 861, 864 (9th Cir. 1994) (discussing narcotics smuggler who

carried 73 balloons of cocaine in her rectum and alimentary canal). 

5At argument, counsel suggested that LSD, for example, can be smuggled on postage stamps or the like that are not readily discoverable during

a pat down search. However, there is no evidence to this effect in the

record and it is not self-evident that cocaine or methamphetamine (which

is what Way was suspected of being under the influence of) are routinely

concealed in this way. 

4486 WAY v. COUNTY OF VENTURA
instances the unreasonableness of a strip search conducted

prior to an [own recognizance] release determination is

plain.”). In these circumstances, we conclude that an arrest for

being under the influence of a drug does not supply reasonable suspicion that drugs are concealed in a bodily cavity. 

[5] As there is no evidence that security concerns require

strip searching all arrestees on all drug offenses before placement in the general jail population, and none that all persons

arrested for being under the influence of a drug are likely to

have concealed more drugs in a bodily cavity, the Sheriff

Department’s blanket policy cannot be a proxy for reasonable

suspicion. There was no individualized suspicion that Way

concealed drugs in a bodily cavity. Therefore, subjecting her

to a strip search with visual cavity inspection offended her

constitutional right to be free of an unreasonable search. 

B

[6] Having determined that Way’s constitutional rights

were violated, the remaining question is whether it was

clearly established at the time of the search that the search

was unconstitutional. See Saucier, 533 U.S. at 201. “If the law

did not put [Brooks and Hanson] on notice that [their] conduct

would be clearly unlawful, summary judgment based on qualified immunity is appropriate.” Id. at 202. 

[7] We had held prior to Way’s search that performing a

strip search with visual cavity inspection before determining

whether the person was eligible for release on his own recognizance could not be justified based on a blanket policy of

subjecting all minor offense arrestees to a strip search, Ward,

791 F.2d 1329; that a visual body cavity search of a person

arrested on an offense that did not involve violence could not

be justified by a blanket policy of subjecting all those arrested

for felonies to such a search, Kennedy, 901 F.2d 702; and that

a strip and body cavity search of all felony arrestees could not

be justified based on the jail’s blanket search policy regardWAY v. COUNTY OF VENTURA 4487
less of the crime with which they were charged, Fuller, 950

F.2d 1437. However, we had never previously addressed the

constitutionality of a body cavity search policy premised on

the nature of this or any other drug offense. More importantly,

we had held that the nature of the offense alone may provide

reasonable suspicion, Thompson, 885 F.2d at 1447, and twice

pointed to charges involving drugs, contraband and violence

as the kind of offense that might give rise to reasonable suspicion. Kennedy, 901 F.2d at 716; Giles, 746 F.2d at 618. In

these circumstances, we cannot conclude that a reasonable

officer would necessarily have realized that relying on a

Department policy that excepted arrestees being held on controlled substance offenses from the general prohibition on

strip searches, and subjecting Way to a strip search with

visual cavity inspection pursuant to it, was unconstitutional.

The district court came to a different conclusion by analogy

to the Tenth Circuit’s decision in Foote v. Spiegel, 118 F.3d

1416 (10th Cir. 1997). There, a highway patrol officer

arrested Foote for being under the influence of marijuana. Id.

at 1420. She was strip searched when booked at the county

jail and was released without being placed in the general jail

population. Id. at 1421. The court held that the search was

unconstitutional, and that the officers were not entitled to

qualified immunity. However, Foote’s qualified immunity

analysis turned on the fact that before the Foote search was

conducted, Cottrell v. Kaysville City, 994 F.2d 730, 734-35

(10th Cir. 1993), clearly established that merely being

arrested for driving under the influence of drugs does not justify a strip search. Foote, 118 F.3d at 1421. Our law was not

so clear (until now), hence our reluctance to hold Brooks and

Hanson personally liable for damages. 

[8] We therefore conclude that subjecting Way to a strip

search with visual cavity inspection during the booking process on a misdemeanor charge of being under the influence of

a drug was not justified by the jail’s blanket policy of strip

searching all those arrested on charges involving a controlled

4488 WAY v. COUNTY OF VENTURA
substance. Undocumented security needs of the jail facility do

not outweigh the invasion of Way’s personal rights. Nor is

such an intrusive search warranted solely on account of the

nature of the charge in this case, as being under the influence

of a drug does not necessarily indicate that the person has

concealed more drugs in a body cavity. This said, a reasonable official in the position of Brooks and Hanson would not

have understood that following the jail’s policy violated

Way’s rights because the unconstitutionality of the search

they conducted was not clearly established at the time. 

AFFIRMED IN PART; REVERSED IN PART. 

WARDLAW, Circuit Judge, concurring: 

I concur with all but part B of the well-written majority

opinion. I depart from the majority because I believe that at

the time of Way’s body cavity search, the Fourth Amendment

principles governing blanket searches prohibited strip and

body cavity blanket searches and required individualized reasonable suspicion based on specific and articulable facts

before such a search could be conducted on a misdemeanor

arrestee. I particularly disagree with the majority’s parsimonious approach to the analysis of our precedent, which focuses

on the application of clearly established Fourth Amendment

principles to each penal code section we have addressed and

not on the well-established principles themselves. The fact of

the matter is that Ventura County had an unconstitutional

blanket strip search policy which permitted such searches

based upon no specific, articulable facts at all—a policy we

have repeatedly held unconstitutional. I cannot go so far as to

say that under the circumstances the individual officers acted

objectively unreasonably, however, only because reasonable

officers in Brooks’ and Hanson’s position could have believed

that the Ventura County Sheriff’s Department policy comWAY v. COUNTY OF VENTURA 4489
ported with the Constitution. Therefore I concur in holding

that the officers are entitled to qualified immunity. 

I

I disagree that we can find clearly established law in this

case only if we have previously addressed the constitutionality of a strip and body cavity search of a misdemeanor drug

arrestee. To the contrary, a constitutional right may be clearly

established when “[t]he reasoning, though not the holding” of

a prior decision applies to a set of facts, Hope v. Pelzer, 536

U.S. 730, 743 (2002), and “officials can still be on notice that

their conduct violates established law even in novel factual

circumstances,” id. at 741. “Otherwise, officers would escape

responsibility for the most egregious forms of conduct simply

because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). The

Supreme Court has rejected this parsimonious approach to the

Fourth Amendment principle of reasonableness, stating that

the balancing test fashioned in Bell v. Wolfish, 441 U.S. 520,

559 (1979), is “not capable of precise definition or mechanical application.” 

The clearly established general Fourth Amendment principle of reasonableness, which we have applied to strip and

body cavity searches of arrestees, see Thompson v. City of Los

Angeles, 885 F.2d 1439, 1445 (9th Cir. 1989), rendered the

Ventura County blanket strip and body cavity search policy

unconstitutional. We have interpreted the principle of reasonableness in the context of misdemeanor pretrial detainees to

require application of a standard of individualized reasonable

suspicion, such that “arrestees . . . may be subjected to a strip

search only if jail officials have a reasonable suspicion that

the particular arrestee is carrying or concealing contraband or

suffering from a communicable disease.” Giles v. Ackerman,

746 F.2d 614, 615 (9th Cir. 1984) (per curiam) (emphasis

added), overruled in part on other grounds by Hodgers4490 WAY v. COUNTY OF VENTURA
Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999)

(en banc). Only consideration of the multiplicity of factors

giving rise to individualized reasonable suspicion, such as

“the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record,” properly balances the “intrusion on the individual’s Fourth Amendment interests

against [the] promotion of legitimate governmental interests.”

Id. at 617 (emphasis added). Moreover, “[i]n most instances

the unreasonableness of a strip search conducted prior to an

[own recognizance] release determination is plain.” Ward v.

County of San Diego, 791 F.2d 1329, 1333 (9th Cir. 1986).

We have routinely struck down blanket strip search policies

as applied against misdemeanor arrestees, and we have gone

so far as to state that “no published state or federal case since

Schmerber v. California, 384 U.S. 757 (1966) . . . upholds the

constitutionality of a blanket policy of strip searches of minor

offense arrestees.” Ward, 791 F.2d at 1332. 

While the majority broadly asserts that we held in Thompson, 885 F.2d at 1447, that the nature of the charge alone,

when it involves drugs, contraband, or violence, warrants a

departure from the standard of individualized reasonable suspicion, I read our holding in Thompson much more narrowly.

First, we explicitly limited Thompson to the facts of the case,

stating that “our decision is extremely narrow and only

applies to theft of an automobile.” Id. at 1447 n.6. Second, the

Thompson case does not control Way’s case because Thompson was strip searched not at the time of booking, but rather

when he entered the general county jail population, where he

remained for five days. Id. at 1442. While this additional factor alone will not justify a strip search, id., “[i]n determining

the constitutionality of strip searches of arrestees, courts have

distinguished between searches of detainees who were simply

awaiting bail, and searches conducted on inmates admitted or

about to be admitted to the general jail population,” Fuller v.

M.G. Jewelry, 950 F.2d 1437, 1448 (9th Cir. 1991). The

majority bolsters its argument by pointing out that in Giles,

746 F.2d at 618, and Kennedy v. Los Angeles Police Dep’t,

WAY v. COUNTY OF VENTURA 4491
901 F.2d 702, 716 (9th Cir. 1990), implied overruling in part

on other grounds recognized by Act Up!/Portland v. Bagley,

988 F.2d 868, 872 (9th Cir. 1993), we pointed to charges

involving drugs, contraband, and violence as the kind of

offenses that might give rise to reasonable suspicion. However, our holdings in those cases considered the nature of the

charge only in combination with other specific and individualized factors. 

Departure from the standard of individualized reasonable

suspicion in deference to the security concerns of prison officials, see Bell, 441 U.S. at 559, is appropriate only when there

is “sufficient justification for [the] blanket search policy,”

Kennedy, 901 F.2d at 713. We struck down a blanket policy

similar to the Ventura County Sheriff’s Department’s in

Giles, 746 F.2d at 617 (citing Bell, 551 U.S. at 559), because

no security concerns comparable to those in Bell had been

demonstrated. Demonstration of legitimate security concerns

is required because the Court in Bell “did not . . . 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 (2nd Cir. 1986). As the

majority concludes, there is no documentation of security

concerns in this case which are serious enough to justify a

departure from the general rule requiring individualized reasonable suspicion. The facts of this case amply demonstrate

the perils of such a blanket search policy, because all of the

circumstances surrounding Way’s arrest and detention negate

the conclusion that Way, a detainee who had no chance to

secrete drugs, was to post bail shortly after her arrest, and

who would never be mingled with the general jail population,

was concealing contraband. At the time the search was performed, it was clearly established that absent a showing of

serious security concerns tipping the balance in favor of the

government interest, the Fourth Amendment required application of the standard of individualized reasonable suspicion. 

4492 WAY v. COUNTY OF VENTURA
II

While it is generally the case that “[i]f the law was clearly

established, the immunity defense ordinarily should fail, since

a reasonably competent public official should know the law

governing his conduct,” Harlow v. Fitzgerald, 457 U.S. 800,

818-19 (1982), in measuring the “objective reasonableness”

of the officer’s conduct we have looked beyond the existing

body of case law to whether the officer relied on a state statute, regulation, or official policy that explicitly sanctioned the

conduct in question, see Wilson v. Layne, 526 U.S. 603, 617

(1999); Grossman v. City of Portland, 33 F.3d 1200, 1209

(9th Cir. 1994). While reliance upon a statute does not render

the officer’s conduct per se reasonable, Roska v. Peterson,

328 F.3d 1230, 1252 (10th Cir. 2003), “the existence of a statute or ordinance authorizing particular conduct is a factor

which militates in favor of the conclusion that a reasonable

official would find that conduct constitutional,” because “police officers on the street are ordinarily entitled to rely on the

assumption that the [legislature] ha[s] considered the views of

legal counsel and concluded that the ordinance is a valid and

constitutional exercise of authority,” Grossman, 33 F.3d at

1209. 

In this case, the Ventura County Sheriff’s Department policy authorized the conduct in question. Officers Brooks and

Hanson complied with that policy. In addition, California

Penal Code § 4030(f) specifically exempts those arrested on

misdemeanor “weapons, controlled substances or violence”

charges from the general prohibition on strip and body cavity

searches of persons arrested for misdemeanors. Because the

policy and the state statute had not fallen into desuetude,

Grossman, 33 F.3d at 1209 n.19, nor were they “patently violative of fundamental constitutional principles,” id. at 1209, it

was objectively reasonable for officers Brooks and Hanson to

rely on the policy and the state statute in performing the strip

search on Way. I therefore concur with the majority in finding

that the officers are entitled to qualified immunity. 

WAY v. COUNTY OF VENTURA 4493