IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40892

OSCAR GABRIEL JIMENEZ; CHANDRA RAE JIMENEZ,

Plaintiffs-Appellees

v.

WOOD COUNTY, TEXAS; SHERIFF DWAINE DAUGHERTY,

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Texas

Before GARZA and BENAVIDES, Circuit Judges, and LYNN , District Judge.

*

EMILIO M. GARZA, Circuit Judge:

Appellants Wood County, Texas, and Sheriff Dwaine Daugherty

(collectively “the County”) appeal the judgment against them pursuant to 42

U.S.C. §1983, as well as the district court’s award of attorney fees. For the

reasons set forth herein, we affirm.

I

Plaintiffs Oscar and Chandra Jimenez (“the Jimenezes”) operated a bar in

an area of Wood County that Sheriff Daugherty identified as associated with

significant amounts of drug activity. Agents of the Texas Alcoholic Beverage

Commission(“TABC”), in coordination with officers of the Wood County Sheriff’s

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2010

Lyle W. Cayce

Clerk

District Judge of the Northern District of Texas, sitting by designation. *

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Department, conducted a raid on the bar. During the raid, the TABC agents had

an initial confrontation with Mr. Jimenez, after which Mr. Jimenez fled and the

agents were unable to find him. Agents eventually discovered him locked in the

trunk of an automobile registered to the Jimenezes. Ms. Jimenez, who had the

keys to the automobile, unlocked the trunk for the agents after multiple

requests. Ms. Jimenez was arrested for hindering apprehension, which the

parties agree was a Class A misdemeanor under these circumstances. She was

taken to the Wood County jail where an employee of the Wood County Sheriff’s

Department performed a strip search on her. The parties agree that, at the time, it

was the department’s policy to perform strip searches on all detainees entering

the jail who were arrested for a felony, Class A misdemeanor, or Class B

misdemeanor. Mr. Jimenez was also arrested.

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The Jimenezes sued the TABC, Wood County, and Sheriff Daugherty

under 42 U.S.C. § 1983, alleging violations of their constitutional rights arising

out of their arrests, the TABC’s alleged use of excessive force against Mr.

Jimenez, and the strip search of Ms. Jimenez. The claims against the TABC

were eventually settled and dismissed. The claim against the County based on

the strip search of Ms. Jimenez proceeded to trial. The jury entered a verdict

finding the County liable for violating Ms. Jimenez’s rights under the Fourth

Amendment and imposing actual damages of $55,000, as well as punitive

damages of $5,000 against Sheriff Daugherty. The Jimenezes then sought

$222,780 in attorney fees and $43,337.83 in expenses pursuant to 42 U.S.C. §

1988. Upon review of the claimed fees, the district court granted $157,394.60 in

fees and $37,153.95 in expenses. The County appeals from both the judgment

against it and the fee award.

The sheriff’s actual testimony is that this policy applied to all detainees “charged”

1

with a Class B misdemeanor or above. Both parties, however, characterize the policy as

applying to all detainees arrested for such offenses.

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II

The County argues that it was not required to base its search of Ms.

Jimenez on reasonable suspicion for two reasons. First, it argues that we

should reverse our prior precedents and hold that, under Bell v. Wolfish, 441

U.S. 520 (1979), the Fourth Amendment permits visual strip searches of all jail

detainees upon being booked into a detention facility, regardless of reasonable

suspicion. Second, the County argues in the alternative that the district court

erred in classifying hindering apprehension as a “minor offense,” and that the

nature of Ms. Jimenez’s offense therefore justified the search regardless of the

lack of individualized reasonable suspicion. For the following reasons, we

disagree.

A

The County argues that we should hold that there is no requirement of

reasonable suspicion for strip searches of newly arrested detainees regardless

of the offense giving rise to the arrest, overruling a number of cases we have

decided under Wolfish. In Wolfish, the Supreme Court held that strip searches

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in a prison setting could be performed based on “less than probable cause.” 441

U.S. at 560. We have repeatedly concluded that, under Wolfish, a strip search

of an individual arrested for a minor offense must be premised on reasonable

suspicion that the detainee is carrying weapons or contraband. See, e.g., Kelly

v. Foti, 77 F.3d 819, 821 (5th Cir. 1996) (“Jail officials may strip search a person

arrested for a minor offense and detained pending the posting of bond only if

they possess a reasonable suspicion that he is hiding weapons or contraband.”);

Although overruling is not appropriate at this stage, there may be compelling reasons 2

to reconsider these precedents en banc in an appropriate case. Recent en banc panels of the

Ninth and Eleventh Circuits have reconsidered similar precedents in their circuits and

ultimately agreed with the County’s position. See Bull v. City & County of San Francisco, 595

F.3d 964,977 (9th Cir. 2010) (en banc) (overruling Thompson v. City of Los Angeles, 885 F.2d

1439, 1446-47 (9th Cir. 1989); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984)); Powell

v Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc) (overruling Wilson v. Jones, 251 F.3d

1340, 1343 (11th Cir. 2001)).

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Watt v. City of Richardson Police Dep’t, 849 F.2d 195, 198 (5th Cir. 1988)

(holding that visual strip search of arrestee for failure to register a dog, based

solely on the arrestee’s prior drug offense conviction, was unconstitutional);

Stewart v. Lubbock County, Tex., 767 F.2d 153, 156–57 (5th Cir. 1985) (“Because

Lubbock County’s strip search policy was applied to minor offenders awaiting

bond when no reasonable suspicion existed that they as a category of offenders

or individually might possess weapons or contraband, under the balancing test

of Wolfish we find such searches unreasonable and the policy to be in violation

of the Fourth Amendment.”).

The County argues that we should overrule those cases to bring our

precedents into line with “the growing trend” among courts. As the County

concedes, interpretations of Wolfish vary greatly between circuits. See, e.g., Bull,

595 F.3d at 980-81 (9th Cir. 2010) (en banc) (holding that mandatory, routine

visual strip search policy for all arrestees who were to be introduced into general

jail population was constitutional); Powell, 541 F.3d at 1314 (en banc) (holding

that a policy of strip searching every arrestee booked into a jail or detention

facility does not violate the Fourth Amendment); Roberts v. Rhode Island, 239

F.3d 107, 112-13 (1st Cir. 2001) (holding that mandatory visual strip search

policy at correctional institution intake center was unconstitutional); Weber v.

Dell, 804 F.2d 796, 802 (2d Cir. 1986) (holding that mandatory visual strip

search policy in county jail was unconstitutional), cert. denied, 483 U.S. 1020

(1987).

“[A] panel of this court can only overrule a prior panel decision if ‘such

overruling is unequivocally directed by controlling Supreme Court precedent.’”

Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001) (quoting United

States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th Cir.1991)). Thus, even if

there is a trend in favor of abolishing reasonable suspicion requirements in this

setting, a trend alone does not justify a panel reversing prior decisions of the

court. Because the County has not identified a Supreme Court case that

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unequivocally directs us to do otherwise, we must consider this case under our

existing precedents.

B

The County argues next that the district court erred in concluding that

hindering apprehension is a “minor offense” and by instructing the jury

accordingly. Specifically, it argues that the seriousness of the offense and the

fact that it could result in up to a year of incarceration establish that the offense

is not “minor.” A party challenging a jury instruction must show that the

charge, as a whole, created a “substantial and ineradicable doubt” as to whether

the jury was properly instructed and that the error “could . . . have affected the

outcome of the case.” Taita Chem. Co. Ltd. v. Westlake Styrene, LP, 351 F.3d

663, 667 (5th Cir. 2003) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.

1994); Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993)). Under our

precedents, the question of whether hindering apprehension is a minor offense

is a component of the broader Wolfish balancing test for determining the

reasonableness of the search. See Stewart, 767 F.2d at 156-57 (discussing “the

balancing test of Wolfish”). “We review questions of law, including whether the

district court’s ultimate conclusions of Fourth Amendment reasonableness are

correct, de novo.” United States v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006)

(citing United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.1998)).

The Jimenezes argue that this challenge was not sufficiently preserved

due to the cursory nature of the County’s objection at trial, in particular the fact

that the objection did not explicitly challenge the court’s instruction to the jury

that reasonable suspicion was required for the search. The County, however, did

note its objection to the district court’s “finding that [misdemeanor hindering

arrest] was a minor offense as a matter of law,” and the district court replied

that it had considered the relevant precedent and concluded that it was. The

County is correct to point out that, under our precedents, the “minor offense”

determination foreclosed the possibility of a ruling that reasonable suspicion was

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not required. Although the County might have been better served by a more

thorough and explicit challenge, its actions were sufficient to preserve the issue

of whether hindering apprehension was a minor offense.

An individual commits hindering apprehension when he, “with intent to

hinder the arrest, prosecution, conviction, or punishment of another for an

offense . . . (1) harbors or conceals the other; (2) provides or aids in providing the

other with any means of avoiding arrest or effecting escape; or (3) warns the

other of impending discovery or apprehension.” TEX. PENAL CODE ANN. §

38.05(a). The County concedes that, under these circumstances, hindering

apprehension is a Class A Misdemeanor punishable by a fine not to exceed

$4,000, incarceration for a term not to exceed one year, or both. Id. § 38.05(c),

§ 12.21. However, “if the person who is harbored, concealed, provided with a

means of avoiding arrest or effecting escape, or warned of discovery or

apprehension is under arrest for, charged with, or convicted of a felony,” and the

individual charged with hindering apprehension had knowledge of that fact,

hindering apprehension is a felony in the third degree. Id. § 38.05(d).

The question of whether hindering apprehension is a minor offense for the

purpose of a strip search is an issue of first impression. However, the

classification of a crime as a misdemeanor has been treated by other circuits as

a relevant or even determinative factor in ascertaining whether there is a

reasonable suspicion requirement. See Roberts, 239 F.3d at 112 (“[W]hen the

inmate has been charged with only a misdemeanor involving minor offenses or

traffic violations, crimes not generally associated with weapons or contraband,

courts have required that officers have a reasonable suspicion that the

individual inmate is concealing contraband.”); Weber, 804 F.2d at 804 (“We

conclude that a reasonable suspicion that an accused misdemeanant or other

minor offender is concealing weapons or other contraband—suspicion based on

the particular traits of the offender, the arrest and/or the crime charged—is

necessary before subjecting the arrestee to the indignities of a strip/body cavity

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search.”). In other settings, as well, misdemeanors have historically been

considered minor offenses. In Stewart, we cited the applicability of the

3

challenged policy to individuals arrested for misdemeanors in support of our

conclusion that the challenged policy was unconstitutional because it applied to

minor offenders when no reasonable suspicion existed that they might possess

weapons or contraband. See Stewart, 767 F.2d at 156 (noting that “the detainees

were arrestees awaiting bond on misdemeanor or traffic violation charges”). In

Stewart, however, the detainees had been arrested pursuant to Class C

misdemeanors, which, unlike the Class A misdemeanor in this case, were

punishable only by fine. Nevertheless, in light of the persuasive authority, we

hold that hindering apprehension—other than felony hindering apprehension

under section 38.05(d), the status of which is not before us—is, given its

misdemeanor status, a minor offense for these purposes and reasonable

suspicion was therefore required for a strip search. Accordingly, any instruction

to that effect did not amount to error.

III

The County argues next that Sheriff Daugherty was entitled to qualified

immunity from § 1983 liability because he did not violate a clearly established

right. When a defendant invokes the qualified immunity defense, the burden is

on the plaintiff to show its inapplicability. Atteberry v. Nocona Gen. Hosp., 430

F.3d 245, 253 (5th Cir. 2005). To do so, the plaintiff must show not only a

violation of a constitutional right, but also that the defendant’s actions were

objectively unreasonable in light of clearly established law at the time of the

complained of actions. Id. “To be clearly established for purposes of qualified

 In now-repealed statutes governing the authority of United States Commissioners, 3

for example, “minor offenses” were defined as “misdemeanors punishable under the laws of

the United States, the penalty for which does not exceed imprisonment for a period of one

year, or a fine of not more than $1,000, or both.” Taberer v. Armstrong World Indus., Inc., 954

F.2d 888, 901 n.18 (3rd Cir. 1992) (quoting 82 Stat. 1116, formerly codified at 18 U.S.C. §

3401(f) (1964 Supp IV)).

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immunity, the contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Id. at 256

(internal citations omitted). The Jimenezes argue first that this issue has not

been preserved for appeal and that, even if the issue is preserved, the district

court did not err because Ms. Jimenez’s rights were clearly established.

We agree with the Jimenezes that this issue was not properly preserved

for appeal and that, therefore, it is inappropriate for our consideration. See

State Indus. Prods. Corp. v. Beta Tech. Inc., 575 F.3d 450, 456 (5th Cir. 2009)

(discussing waiver of arguments not raised at trial). In its reply brief, the

County cannot point to any instance in which it argued that Daugherty was, as

a matter of law, entitled to qualified immunity because Ms. Jimenez’s rights

were not clearly established. Instead, it merely cites its objection to the jury

instruction that hindering apprehension was a minor offense. The County

argues that the district court’s decision to include this instruction over its

objection “essentially required the jury to find that Sheriff Daugherty was not

entitled to qualified immunity,” and,“[t]herefore,the [d]istrict [c]ourt essentially

ruled on the issue of qualified immunity.” We disagree. The questions of what

the law is – here, whether the offense was minor – and whether the law is

clearly established are distinct. By ruling and instructing the jury that

hindering apprehension is a minor offense, the district court did nothing to

foreclose an argument that the relevant law was not clearly established.

Therefore, we cannot consider the County’s late-arising arguments for qualified

immunity, regardless of their merit.

IV

The County has also argued – albeit only briefly – that the search was

made pursuant to reasonable suspicion that Ms. Jimenez possessed weapons or

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contraband. Reasonable suspicion arises where there are “specific and

4

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant [the] intrusion” – in this case, specific and articulable facts

warranting the suspicion that Ms. Jimenez was carrying weapons or contraband.

Terry v. Ohio, 392 U.S. 1, 21 (1968). The County bases its argument that it had

reasonable suspicion on two facts: that Ms. Jimenez was arrested in an area

where “drug use abounds” and that she had allegedly concealed her husband in

the trunk of her automobile. Whether specific facts give rise to reasonable

suspicion is a question of law that we review de novo. Goodson v. City of Corpus

Christi, 202 F.3d 730, 737 (5th Cir. 2000).

We are unpersuaded that Ms. Jimenez’s presence in a “high drug area”

gives rise to reasonable suspicion that she was in possession of weapons or

contraband. “An individual’s presence in an area of expected criminal activity,

standing alone, is not enough to support a reasonable, particularized suspicion

that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124

(2000). Likewise, it cannot support a reasonable, individualized suspicion of

possession of weapons or contraband. The County’s argument is further

undermined by the fact that Ms. Jimenez’s presence in the area was explained

by the fact that the bar was located there – that is to say, she was not simply in

the area with no apparent explanation.

We also cannot conclude that Ms. Jimenez’s possible concealment of her

husband gave rise to reasonable suspicion that she was carrying weapons or

We note preliminarily that it is questionable whether the County has adequately 4

preserved this argument for appeal. The argument was omitted from the statement of the

issues and is included in the brief within a subsection devoted to the question of whether

hindering apprehension is a minor offense. See Quick Techs., Inc. v. Sage Group PLC, 313

F.3d 338, 343 n.3 (5th Cir. 2002) (holding that issue raised in conclusion of brief, but omitted

from statement of issues and body of brief, was not preserved). Nevertheless, because the

issue was argued with appropriate citations to the record and precedent in the main body of

the brief, and the Jimenezes have had adequate opportunity to respond in their brief, we will

consider this argument, assuming without deciding that it was adequately preserved.

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contraband. Even when an offense is minor, we may consider the nature of that

offense in determining whether there was reasonable suspicion. See Watt, 849

F.2d at 197 (5th Cir. 1988) (stating that reasonable suspicion may be based on

factors including “the nature of the offense, the arrestee’s appearance and

conduct, and the prior arrest record”). In this instance, however, the nature of

the offense is simply too attenuated from the possibility that Ms. Jimenez was

concealing contraband or a weapon. Ms. Jimenez was not arrested for concealing

weapons or contraband; she had allegedly been concealing an individual, who

had been found. Were we to hold that this fact gave rise to reasonable suspicion,

we would have little choice but to extend that reasonable suspicion to all

individuals arrested for offenses involving some manner of concealment,

regardless of what was concealed – or, at the very least, all such defendants

arrested in areas identified by police as associated with criminal activity. The

County has cited no authority in support of so broad a holding. Accordingly, we

hold that there was no reasonable suspicion to justify the strip search.

V

The County argues that the district court erred in determining the amount

of fees by attributing fees and costs to the County and the sheriff that were

incurred in litigating against the TABC before settlement. The County further

argues that the fees were “grossly disproportionate” to the damages the

Jimenezes recovered. The Jimenezes argue that it was appropriate to consider

the pre-settlement fees because the claims against the County were inextricably

intertwined with Mr. Jiminez’s claims against the TABC.

The determination of a fees award is a two-step process. Rutherford v.

Harris County, 197 F.3d 173, 192 (5th Cir. 1999). First the court calculates the

“lodestar” which is equal to the number of hours reasonably expended multiplied

by the prevailing hourly rate in the community for similar work. Id. The court

should exclude all time that is excessive, duplicative, or inadequately

documented. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). Once the

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lodestar amount is calculated, the court can adjust it based on the twelve factors

set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th

Cir. 1974). But see Perdue v. Kenny A., 130 S.Ct. 1662, 1669 (2010) (limiting

upward adjustments in light of “a strong presumption that the lodestar is

sufficient”). The court must provide “a reasonably specific explanation for all

aspects of a fee determination.” Perdue, 130 S.Ct. at 1676. We review the award

for abuse of discretion. Id.

The district court’s detailed order plainly takes into account the fact that

the TABC had been dismissed as a party to the litigation. Specifically, the court

found that the issues raised against the TABC and the County were closely

intertwined. Accordingly, the court found that much of the discovery the

Jimenezes conducted from TABC was relevant in the case at trial, even though

the TABC claims had settled. The court nevertheless reduced the hours spent

by attorney Edwin Wright by 25% to reflect the dismissal of the TABC claims.

The court also noted that the Jimenezes’ other attorney had already deducted

or reduced hours billed where the entry was not relevant to the County or where

work was applicable to both the County and TABC and concluded that further

reduction was not necessary. For unrelated reasons, the court reduced the

requested hourly rate from $300 to $275. The court finally considered the

Johnson factors and reduced the lodestar amount by 20% accordingly.

We agree that the district court’s allocation of hours to the claims against

the County was within its discretion in light of the close relationship between

the claims against the TABC and the County. The circumstances of the raid and

Ms. Jimenez’s subsequent arrest are relevant to the ultimate question of the

reasonableness of the search. Because the raid involved coordination between

the TABC and the County, the issues and resulting attorney hours underlying

the claims against the various defendants, though not perfectly coextensive,

were closely intermingled. Moreover, the County’s argument, in the alternative,

that the fee award is unreasonable solely in light of the ratio between the fees

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and the recovery is conclusory and unsupported. Accordingly, the district court

did not abuse its discretion in the calculation of the fees.

VI

For the foregoing reasons, we AFFIRM the judgment of the district court

in all respects.

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