United States Court of Appeals

For the First Circuit

No. 11-1146

SHANE M. SPENCER,

Plaintiff, Appellant,

v.

STEPHEN ROCHE ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Boudin, Selya and Lipez,

Circuit Judges.

Valeriano Diviacchi, with whom Diviacchi Law Office was on

brief, for appellant.

Wendy L. Quinn, Assistant City Solicitor, for appellees Roche,

Morris, and City of Worcester. 

Richard W. Jensen, with whom Morrison Mahoney LLP was on

brief, for appellee Saint Vincent Hospital.

October 18, 2011
SELYA, Circuit Judge. This case raises interesting

questions regarding the constitutional limits of searches conducted

by the police with the aid of modern technology and medical

professionals. Concluding, as we do, that the search at issue here

comported with the strictures of both the United States

Constitution and the Massachusetts Declaration of Rights, we affirm

the district court's entry of summary judgment for the defendants.

I. BACKGROUND

The parties are in substantial agreement about the

chronology of events that sparked this action. On July 28, 2005,

Worcester police officers arrested plaintiff-appellant Shane M.

Spencer for operating a motor vehicle without a license. Shortly

thereafter, one of the officers, Gary Morris, learned that a

confidential informant (CI) claimed to have seen the appellant

insert a package of crack cocaine into his anal cavity just prior

to the arrest. Because the CI had provided the police with

reliable information in the past, Morris asked the appellant to

submit to a visual inspection of his anus. When the appellant

refused, Morris and a fellow officer, Stephen Roche, nonetheless

attempted to conduct the visual inspection. Their efforts were

thwarted by the appellant's refusal to cooperate.

The officers then sought a search warrant. In an

affidavit supporting the warrant application, Morris recounted the

information provided to him by the CI and noted the CI's favorable

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track record. A state court judge issued the requested warrant,

which authorized a search of the appellant's anal cavity for

cocaine.

Armed with the warrant, the officers transported the

appellant to Saint Vincent Hospital (the Hospital) so that medical

professionals could perform the search. At the Hospital, a nurse

made the following note on the intake form: "[Appellant] suspected

heroin + cocaine inserted rectally here [with] police [with]

warrant for cavity search." After reviewing the warrant, a

licensed physician, Dr. John Scola, performed a digital search of

the appellant's anal cavity. The appellant recalls being

handcuffed and held down by the officers while the doctor inserted

two fingers into his rectum.

When the digital search revealed no contraband, Dr. Scola

ordered an x-ray of the appellant's abdominal area. In an

affidavit filed in the district court, Dr. Scola explained that a

digital examination reaches only the lower portion of the anal

cavity and a more complete exploration requires the use of

radiological imaging. It is undisputed that the type of x-ray

ordered by Dr. Scola — a KUB study — is the only type of x-ray that

can capture the entire anal cavity. The hitch is that a KUB x-ray

also captures images of the stomach, kidneys, and other organs

surrounding the anal cavity.

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The appellant made it plain to the police and to the

Hospital staff that he did not consent to the KUB x-ray. The x-ray

was nevertheless taken and read by a radiologist (also a licensed

physician), who reported finding no foreign objects in the

appellant's "stomach or rectum or elsewhere in the abdomen."

In short order, the police released the appellant. No

drug-related charges were filed against him. But that was not the

end of the matter: on May 29, 2008, the appellant filed a federal

suit against Roche and Morris. Invoking 42 U.S.C. § 1983, he

alleged that the digital and x-ray searches contravened the Fourth

Amendment. He later amended his complaint to add additional claims

against the officers, the City of Worcester (the City), and the

Hospital.

After a period of pretrial discovery, the defendants

moved for summary judgment. The appellant opposed their motions. 

The district court granted brevis disposition to the City and the

Hospital. As to the officers, the court initially granted summary

judgment on a claim brought pursuant to the Massachusetts Civil

Rights Act (MCRA) but denied summary judgment on a litany of other

claims. The MCRA claim was quickly reinstated following the

appellant's motion to reconsider. At this stage of the

proceedings, the court was acting under the mistaken impression

that separate x-rays had been taken of the appellant's anal cavity

and stomach. The officers later clarified this point, making it

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pellucid that only a single x-ray had been taken. This

clarification was accompanied by the officers' request for further

reconsideration of their summary judgment motion.

Confronted with this new information (which the appellant

never challenged), the court reconsidered its earlier rulings. 

With the record clarified, the court deemed all of the searches

reasonable and granted summary judgment in the officers' favor on

all claims. It left undisturbed its earlier entry of summary

judgment in favor of the other defendants. This timely appeal

ensued.

II. ANALYSIS

On appeal, the labyrinthine procedural travel of the

district court's rulings is of no moment. Stripped of procedural

flourishes, the appellant seeks review of the summary judgment

entered in favor of the defendants on all counts of the amended

complaint. We review the entry of summary judgment de novo.

Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir. 2011). In performing

this appraisal, we are not restricted to the trial court's

rationale but may affirm on any ground made manifest in the record. 

Young v. Wall, 642 F.3d 49, 52 (1st Cir. 2011). We must construe

the facts and all reasonable inferences therefrom in the light most

favorable to the nonmovant (here, the appellant). Cox v. Hainey,

391 F.3d 25, 27 (1st Cir. 2004). We will affirm the entry of

summary judgment only if the record, so viewed, shows that "there

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is no genuine dispute as to any material fact" and that the movants

are "entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a).

The issues on appeal are narrowly cabined. The appellant

challenges neither the validity of the warrant nor the

constitutionality of the officers' attempted visual inspection of

his anal cavity. Nor does he challenge the digital examination

performed by Dr. Scola. Rather, he contends that the x-ray was an

unreasonable intrusion on his privacy and that the police

compounded this intrusion by searching beyond the scope of the

warrant (i.e., by searching his stomach as well as his anal

cavity). As a fallback, he contends that these actions, even if

permissible under the Fourth Amendment, violated the Massachusetts 

Declaration of Rights. In assaying these arguments, we remain

mindful that the appellant, as the party challenging the search,

has the burden of showing that it was constitutionally deficient. 

See Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001).

We start with the appellant's first argument: that the xray search of his anal cavity offended the Fourth Amendment. As a

general matter, that constitutional safeguard prohibits only those

searches that are unreasonable. Bell v. Wolfish, 441 U.S. 520, 558

(1979). The reasonableness of a search "depends on a balance

between the public interest and the individual's right to personal

security free from arbitrary interference by law officers." 

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Maryland v. Wilson, 519 U.S. 408, 411 (1997) (internal quotation

marks omitted). This means that in determining the

constitutionality of a search in the teeth of a Fourth Amendment

claim, an inquiring court must consider whether the circumstances

and the public's need for information justify the particular

intrusion into the searched individual's privacy. See United

States v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004). Holding this

delicate balance steady and true requires careful perscrutation of

the specific facts.

It is a piece of constitutional bedrock that individuals

have a reasonable expectation of privacy regarding their bodies. 

Thus, a physical intrusion below the skin constitutes a search

within the purview of the Fourth Amendment. See Skinner v. Ry.

Labor Execs.' Ass'n, 489 U.S. 602, 616-17 (1989). Because

individuals possess a strong interest in their bodily integrity, a

nonconsensual intrusion into the body requires a particularly

robust justification. See Schmerber v. California, 384 U.S. 757,

767-68, 772 (1966).

Withal, not every intrusion into an individual's bodily

integrity offends the Fourth Amendment. An inquiring court must

weigh the nature of the particular intrusion against the totality

of the circumstances surrounding it to determine the reasonableness

of the search. See Winston v. Lee, 470 U.S. 753, 760 (1985).

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The Supreme Court's decision in Schmerber is instructive. 

There, police compelled a man suspected of driving while

intoxicated to submit to a physician-administered blood test. 384

U.S. at 758. The suspect contended that the police violated his

Fourth Amendment rights by taking the blood sample without his

consent. Id. at 759. The Court held that the taking of the sample

was reasonable under the circumstances. The Court emphasized that

the police had strong probable cause to believe that the suspect

had been driving drunk; that the blood test was a highly effective

means of proving the crime; that the taking of the blood sample was

a common, relatively safe, and relatively painless medical

procedure; and that the blood had been drawn by doctors in a

sterile environment. Id. at 768-72.

By contrast, the Winston Court enjoined police from

compelling a suspect to undergo surgery to recover a bullet lodged

in his chest, even though the bullet could have proven the

suspect's involvement in a robbery. 470 U.S. at 755-56. 

Notwithstanding that the police had good cause to believe that the

bullet would implicate the suspect in the crime, the surgery posed

potentially significant health risks and was an "extensive"

intrusion into the suspect's privacy interests. Id. at 763-65. 

Moreover, the state, which already had strong evidence of the

suspect's guilt, lacked a pressing need to recover the bullet. Id.

at 765-66.

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These cases teach that in determining the reasonableness

of an intrusion into a suspect's bodily integrity, a court must

consider the strength of the suspicion driving the search, the

potential harm to the suspect's health and dignity posed by the

search, and the prosecution's need for the evidence sought. In

certain circumstances, the court also may consider the availability

vel non of a less invasive means of conducting the search. See

Sanchez v. Pereira-Castillo, 590 F.3d 31, 45-46 (1st Cir. 2009). 

Applying this balancing test, we have upheld digital

searches of a vagina and rectum when supported by probable cause

and appropriately carried out by medical professionals. See id. at

44; Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir. 1991). 

Conversely, we have ruled that compelling a prisoner to undergo

abdominal surgery to recover suspected contraband offended the

Fourth Amendment (at least in the absence of strong probable

cause). Sanchez, 590 F.3d at 47-48. We have not yet considered

the circumstances under which the police may be justified in

compelling a suspect to submit to an x-ray search of a part of his

body.1

In general, compelled x-rays have been viewed favorably

by courts, given an appropriately supported level of suspicion. 

For example, courts have approved x-ray searches performed at

To be sure, such a search was allowed in Sanchez, but the 1

panel took pains to note that the plaintiff had not challenged the

constitutionality of that procedure on appeal. 590 F.3d at 41 n.4.

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border crossings when customs officials had reasonable suspicion

that drugs were being smuggled internally. See, e.g., United

States v. Oyekan, 786 F.2d 832, 837-38 (8th Cir. 1986); United

States v. Mejia, 720 F.2d 1378, 1381-82 (5th Cir. 1983). 

Similarly, the Second Circuit has upheld an x-ray search of a

criminal defendant who had set off a metal detector on his way to

hear the jury's verdict. See United States v. Johnson, 24 F. App'x

70, 72-73 (2d Cir. 2001). And this court has described an x-ray as

a "much simpler, less invasive procedure" than surgery. Sanchez,

590 F.3d at 45.

We hold today that the x-ray search of the appellant's

anal cavity passed muster under the Fourth Amendment. Although the

x-ray was an encroachment on the appellant's privacy interests,

this encroachment was plainly outweighed by other factors. First,

a diagnostic x-ray is a routine medical procedure that is brisk,

painless, and generally regarded as safe. Second, there is no 2

evidence that the x-ray was carried out in a dangerous or otherwise

inappropriate manner; to the contrary, the imaging was performed by

trained professionals in a hospital setting. Third, the evidence

sought in the x-ray search was indispensable to corroborate the

officers' suspicion that the appellant had violated Massachusetts

drug laws. Fourth, the warrant itself (never challenged by the

Although the appellant now argues that the x-ray exposed him 2

to dangerous radiation, he failed to introduce any evidence to

support this ipse dixit. 

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appellant) confirms the existence of probable cause to believe that

the appellant had stashed drugs in his rectum. Fifth, and 3

finally, the record reflects no less intrusive way in which the

police could have verified their suspicions. Under these 4

considerations, the compelled x-ray search of the appellant's anal

cavity was reasonable. Consequently, it comported with the Fourth

Amendment.

In an effort to undermine this conclusion, the appellant

advances two other arguments. In the first place, the appellant

contends that the probable cause supporting the warrant dissipated

after the digital search came up empty. The uncontroverted

evidence in the record, however, is that the digital examination

searched only a portion of the anal cavity. Accordingly, the

negative result did not foreclose the possibility that the

appellant might be harboring drugs in his anal cavity. See, e.g.,

United States v. Keszthelyi, 308 F.3d 557, 575-76 (6th Cir. 2002)

(explaining that a negative result from an incomplete search does

The search warrant not only confirmed the existence of 3

probable cause but is, given the absence of exigent circumstances,

also independently essential to a finding that the x-ray search was

reasonable. See Rivera Rodríguez v. Beninato, 469 F.3d 1, 4 (1st

Cir. 2006).

The appellant argues that the officers could have performed 4

a less invasive search by monitoring his bowel movements. But this

would have required the officers to detain the appellant for a

significant period of time and, thus, would not have been an

acceptable substitute.

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not dispel probable cause so as to require suppression of the

fruits of a second, more thorough, search).

In the second place, the appellant asserts that, whether

or not an x-ray search of his anal cavity might have been

reasonable, the search actually performed in this case was tainted

because the police unlawfully used the x-ray to search his stomach

for drugs without probable cause. The premise on which this

assertion rests is sound: given the terms of the warrant, the

police had no right to search for drugs in the appellant's stomach. 

But the conclusion that the appellant would have us draw from this

limitation is unfounded.

To be specific, the appellant's lament that the taking of

a KUB x-ray exceeded the scope of the warrant ignores the facts. 

Here, the viewing of the stomach was incidental to the valid anal

cavity search and, thus, did not require an independent showing of

probable cause. As we already have explained, the police were

justified in taking an x-ray image of the appellant's anal cavity,

and the evidence is undisputed that a KUB x-ray is the only type of

x-ray that can capture the entire anal cavity. It follows

inexorably that the KUB x-ray was within the scope of the warrant. 

That the KUB study necessarily included an image of the appellant's

stomach was simply an unavoidable side effect of the valid x-ray

search. See Dalia v. United States, 441 U.S. 238, 257-58 (1979)

("Often in executing a warrant the police may find it necessary to

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interfere with privacy rights not explicitly considered by the

judge who issued the warrant.").

Laboring to blunt the force of this reasoning, the

appellant counters that the real purpose of the KUB x-ray was to

search the contents of his stomach. The record contains some

evidence suggesting that the officers might have told Dr. Scola of

their suspicion that the appellant had swallowed the drugs. For

example, the radiologist's notes indicate a history of drugs being

either "swallowed or inserted into the rectum" (emphasis supplied). 

Even assuming, however, that the officers had hoped to use the KUB

x-ray to confirm their suspicion that the appellant had swallowed

the drugs, the search was lawful.

A police officer's subjective motive, even if improper,

cannot sour an objectively reasonable search. See United States v.

Hadfield, 918 F.2d 987, 993 (1st Cir. 1990) ("It is a bedrock

premise of fourth amendment jurisprudence that an officer's state

of mind or subjective intent in conducting a search is inapposite

as long as the circumstances, viewed objectively, justify the

action taken."); see also Whren v. United States, 517 U.S. 806, 813

(1996) ("Subjective intentions play no role in ordinary, probablecause Fourth Amendment analysis."). The circumstances of this case

justified the taking of the KUB x-ray to complete the authorized

search of the appellant's anal cavity, and it does not matter

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whether the motivation behind the use of this procedure was to look

in the appellant's stomach.

With the question of subjective intent removed from the

equation, the appellant's "scope" argument collapses. It is well

settled that a police officer's observation of an item in plain

view does not constitute a search so long as the officer makes his

observation from a lawful vantage point. Minnesota v. Dickerson,

508 U.S. 366, 375 (1993); Horton v. California, 496 U.S. 128, 133

n.5 (1990). This principle likewise applies to observations made

by the radiologist, who was acting as an agent of the police.

As discussed above, it was lawful for the police (and,

thus, the doctor) to view the KUB x-ray of the appellant's anal

cavity. An image of the stomach necessarily appeared on that x-ray

film. The law did not require the radiologist to avert her eyes

from the image of the stomach that was plainly in view. See

California v. Greenwood, 486 U.S. 35, 41 (1988). Any observation

of the stomach was therefore an incidental result of the valid KUB

x-ray search and did not require an independent showing of probable

cause. Consequently, the appellant's Fourth Amendment rights were

not infringed, and his section 1983 claim founders. See Nieves v.

McSweeney, 241 F.3d 46, 57 (1st Cir. 2001) ("It follows inexorably

that, in the absence of an anchoring constitutional violation, [a]

section 1983 . . . claim topples.").

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It is, of course, a different question whether the

actions taken by the officers and the doctors violated

Massachusetts law. The logical starting point for that inquiry is

the appellant's MCRA claim.

To prevail on a claim brought pursuant to the MCRA, a

plaintiff must demonstrate, among other things, that the

defendant(s) interfered with rights secured by federal or state

law. See Mass. Gen. Laws ch. 12, § 11I; Swanset Dev. Corp. v. City

of Taunton, 668 N.E.2d 333, 337 (Mass. 1996). Because we already

have laid to rest the claim that any Fourth Amendment violation

occurred, the appellant's MCRA claim depends wholly on his further

contention that the x-ray search transgressed his rights under

Article XIV of the Massachusetts Declaration of Rights. While

Article XIV may in some instances provide a broader prophylaxis

than the Fourth Amendment, see, e.g., Commonwealth v. Cruz, 945

N.E.2d 899, 906 n.10 (Mass. 2011), we find no violation of the

appellant's Article XIV rights in this instance. We explain

briefly.

The appellant argues that Article XIV does not permit

police to enlist civilians (such as a doctor) to aid in a search

unless the warrant explicitly authorizes such assistance. But the

case that he cites for this proposition — Commonwealth v. Sbordone,

678 N.E.2d 1184 (Mass. 1997) — does not support the weight that he

loads upon it.

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Sbordone suggests, in dictum, that it would be "better

practice" to list on the face of a warrant any civilians authorized

to participate in the search, id. at 1188 n.9, but that dictum does

not create a rule of constitutional dimension. Rather than helping

the appellant's cause, Sbordone stands for the general proposition

that civilian aid during an authorized search may be appropriate in

some circumstances. See id. at 1188. We believe that an internal

cavity search, in the circumstances at hand, was an appropriate

situation for the enlistment of medical professionals.

The appellant also appears to argue (albeit without

citation to any authority) that Article XIV was offended when Dr.

Scola, not the police, ordered the KUB x-ray. This is a

distinction without a difference. The police appropriately

recruited Dr. Scola to facilitate an anal cavity search, and there

was nothing improper about the police deferring to the doctor's

expertise in recommending the most effective means of conducting

that search.

The bottom line, then, is that the appellant experienced

no interference with his Article XIV rights. Accordingly, the

district court did not err in granting summary judgment against him

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on his MCRA claim. See Dean v. City of Worcester, 924 F.2d 364, 5

370 (1st Cir. 1991).

The failure of the appellant's constitutional claims

(federal and state) makes it unnecessary for us to consider

separately his claims for assault and battery and intentional

infliction of emotional distress. Where the actions taken by the

police are objectively reasonable, such claims cannot survive. See

id. at 369. By the same token, the absence of an anchoring

constitutional violation dooms the claim that the City failed

properly to train the officers. See Evans v. Avery, 100 F.3d 1033,

1040 (1st Cir. 1996). Likewise, the Hospital cannot be vicariously

liable because its employees committed no underlying tort. See

Sanchez, 590 F.3d at 44 n.6.

This leaves only the appellant's state-law invasion of

privacy claim. In mounting this claim, he asseverates that

employees of the Hospital violated his right to privacy when they

discussed the results of his x-ray with the officers. This

asseveration lacks force.

The applicable Massachusetts statute, Mass. Gen. Laws ch.

214, § 1B, proscribes only those invasions of privacy that are

"unreasonable." See O'Connor v. Police Comm'r of Boston, 557

Although the appellant argued below that Article XIV demands 5

a heightened level of probable cause to justify an x-ray search, he

has not raised that issue in his appellate brief. Consequently,

the argument is waived. See Surprenant v. Rivas, 424 F.3d 5, 16

(1st Cir. 2005).

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N.E.2d 1146, 1151 (Mass. 1990); Bratt v. Int'l Bus. Machs. Corp.,

467 N.E.2d 126, 133-34 (Mass. 1984) (explaining that invasion of

privacy requires "disclosure of facts about an individual that are

of a highly personal or intimate nature when there exists no

legitimate, countervailing interest"). Here, it was unarguably

reasonable for the Hospital's employees to convey to the officers

the results of a lawful x-ray search conducted under the aegis of

a valid warrant. That ends the matter: a search that is performed

in accordance with constitutional requirements and that is

otherwise reasonable does not constitute an actionable invasion of

privacy under Massachusetts law. See Schlesinger v. Merrill 6

Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912, 914 (Mass.

1991).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the lower court's entry of summary judgment in favor of

the defendants.

Affirmed.

To the extent that the appellant couches his invasion of 6

privacy claim in the common law, Massachusetts has never recognized

such a tort, see Alberts v. Devine, 479 N.E.2d 113, 121 (Mass.

1985), and it is not our place to create new causes of action under

state law, see Porter v. Nutter, 913 F.2d 37, 40-41 (1st Cir.

1990). In any event, we believe that any such common-law claim

would exclude reasonable invasions of privacy, which is precisely

what occurred here. See Restatement (Second) of Torts § 652A

(1977).

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