Washington v. Ohio Dept. of Rehab. & Corr.
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[Cite as Washington v. Ohio Dept. of Rehab. & Corr., 2003-Ohio-4435.]
IN THE COURT OF CLAIMS OF OHIO
BEATRICE WASHINGTON
:
Plaintiff
:
CASE NO. 2001-11839
v.
:
DECISION
:
Judge J. Warren Bettis
DEPARTMENT OF REHABILITATION
AND CORRECTION
:
Defendant
: : : : : : : : : : : : : : : : :
{¶1}
Plaintiff brought this action against defendant alleging
that an agent of defendant, Officer Jennifer Tibbetts, of the Ohio
Adult Parole Authority (APA), conducted an unlawful strip search of
her person and that such search also constituted an invasion of her
privacy and/or right to seclusion.
The issues of liability and
damages were bifurcated and the case proceeded to trial on the
issue of liability.
{¶2}
The search in question occurred on November 1, 2000.
At
that time, plaintiff resided in Middletown, Ohio, with her husband,
Robert Washington.
Mr. Washington was on parole and plaintiff had
been notified that he was in violation of the conditions of his
parole and was going to be arrested.
When the APA officers
arrived, along with two Middletown police officers, plaintiff
answered the door and allowed them to enter.
Mr. Washington was
placed in handcuffs and arrested without incident.
residence
was
then
conducted
and
the
A search of the
officers
seized
drug
paraphernalia, cocaine, a nightstick, two knives, ammunition, photo
albums, and a pornographic videotape.1
Mr. Washington was charged
with possession of drugs and drug paraphernalia, as well as the
violations of his parole.
{¶3}
After
the
ammunition,
knives,
and
nightstick
were
discovered, Officer Tibbetts, the only female officer present,
asked
plaintiff
to
accompany
her
to
a
bathroom.
Plaintiff
testified that she was asked to lift her blouse and shake out her
bra, which caused part of her breasts to be exposed.
She contends
that she was embarrassed; that she did not think she had done
anything to warrant suspicion; that the process was humiliating, in
part, because Officer Tibbetts was an APA officer and not a
policewoman, and because she knew the officers did not have a
warrant to search.
Afterward, plaintiff returned to the living
room and a criminal record check was conducted.
When an active
warrant was revealed on a charge of passing a bad check, plaintiff
was also arrested.
{¶4}
The conditions under which a body cavity or strip search
may be performed are set forth in R.C. 2933.32.
{¶5}
That statute provides, in pertinent part:
{¶6}
“*** ‘Strip search’ means an inspection of the genitalia,
buttocks, breasts, or undergarments of a person that is preceded by
the removal or rearrangement of some or all of the person’s
clothing that directly covers the person’s genitalia, buttocks,
breasts, or undergarments and that is conducted visually, manually,
by means of any instrument, apparatus, or object, or in any other
manner while the person is detained or arrested ***.
{¶7}
“Except
as
authorized
by
this
division,
no
law
enforcement officer, other employee of a law enforcement agency,
1
The conditions of Mr. Washington’s parole prohibited him from having such
materials because he had previously been convicted for a sex offense.
*** shall conduct or cause to be conducted a *** strip search.
{¶8}
***
“(2) A *** strip search may be conducted if a law
enforcement officer or employee of a law enforcement agency has
probable cause to believe that the person is concealing evidence of
the commission of a criminal offense, including fruits or tools of
a crime, contraband, or a deadly weapon, *** that could not
otherwise be discovered.
{¶9}
medical
***
“(5) Unless there is a legitimate medical reason or
emergency
that
makes
obtaining
written
authorization
impracticable, a *** strip search shall be conducted only after a
law enforcement officer or employee of a law enforcement agency
obtains a written authorization for the search from the person in
command *** or from a person specifically designated by the person
in command to give a written authorization ***.
{¶10} “(C)(1) Upon completion of a *** strip search *** the
person or persons who conducted the search shall prepare a written
report concerning the search ***.”
{¶11} Plaintiff contends that defendant violated the provisions
of R.C. 2933.32 because there was no legitimate medical reason or
emergency to justify the search of her person, thus, Officer
Tibbetts was required to obtain written authorization from an APA
commander and to prepare a report subsequent to the search.2
There
is no question that Officer Tibbetts did not follow those statutory
dictates, in fact, she testified at trial that she was not even
familiar with the statute itself.
Rather, she stated that she
followed APA policies, which authorize “suspicionless” searches of
any person present at the arrest of a parole violator.
2
There is no dispute that defendant had authority to conduct the search of
plaintiff’s residence without a warrant; the conditions of parole specify that
such searches may be conducted at any time.
{¶12} Plaintiff
2933.32(B)(2)
further
provides
a
argues
that,
even
though
probable
cause
exception
R.C.
to
the
aforementioned requirements, there was no probable cause to justify
the
strip
search
conducted
in
this
case.
Moreover,
it
is
plaintiff’s contention that, even assuming probable cause did
exist, Officer Tibbetts could have conducted a less intrusive patdown search instead of the strip search she performed.
{¶13} Finally,
plaintiff
maintains
that
an
unwarranted
examination of a woman’s breasts constitutes a tortious invasion of
her privacy and seclusion pursuant to Hidey v. Ohio State Highway
Patrol (1996), 116 Ohio App.3d 744.
{¶14} Defendant has denied liability on all of plaintiff’s
claims.
According to defendant, plaintiff was not strip-searched
in violation of R.C. 2933.32 inasmuch as Officer Tibbetts did not
“inspect” plaintiff’s breasts within the ordinary meaning of that
term;3 Officer Tibbetts simply requested that plaintiff lift her
shirt and shake out her bra.
Further, Officer Tibbetts could not
recall whether she observed any portion of plaintiff’s breasts at
the time.
In defendant’s view, even if Officer Tibbetts actually
saw plaintiff’s breasts, she did not “inspect” them.
Defendant
also contends that plaintiff consented to the search and could have
refused if she chose to do so.
{¶15} Additionally,
authority
officers’
defendant
maintains
that
it
had
legal
to conduct the search of plaintiff based upon the
legitimate
fears
for
their
safety
and
that,
once
ammunition was found, common sense dictated that the officers
continue searching to determine whether there was a gun on the
3
Defendant relied on the American Heritage College Dictionary, Third ed.,
definition for “inspection”: “The act of inspecting; official examination or
review,” and the definitions for “inspect”: “To examine carefully and critically”
or “to review or examine officially.”
premises.
{¶16} Upon review of the evidence and arguments of counsel, the
court finds for the following reasons that plaintiff has failed to
prove her claims by a preponderance of the evidence.
{¶17} The court begins this analysis with the finding that a
strip search took place.
not persuasive.
Defendant’s arguments to the contrary are
Similarly, the contention that plaintiff could
have refused to be searched is not convincing.
However, the court
does agree with the argument that, assuming that a strip search did
occur, it was justified by probable cause.
{¶18} In support of the probable cause argument defendant
relies on the case of State of Ohio v. Barnes, (Montgomery C.A.)
Case No. 15149, 1996 Ohio App. LEXIS 3847.
In that case, the court
held that a parole officer had the authority to pat-down an
individual for safety purposes, and to subsequently arrest that
person for carrying a concealed weapon, even though the person was
not the parolee the officer had come to arrest but was merely
present at the time the officers arrived.
This court found no
other case law dealing with the subject of third-party searches by
parole officers.
{¶19} In Barnes, the court acknowledged that parole officers do
not have the same degree of authority as “peace officers”; however,
it
noted
that
they
do
qualify
pursuant to R.C. 2901.01(K)(2).
as
“law
enforcement
officers”
As such, parole officers have a
statutorily imposed duty to conserve peace and enforce laws, and
the authority to arrest violators “within the limits of such
statutory duty and authority.”
The limits of a parole officer’s
statutory duty and authority are described under R.C. 2967.15,
which states, in part, that “any adult parole authority field
officer who has reasonable cause to believe that any parolee ***
under the supervision of the adult parole authority has violated or
is violating any term or condition of his pardon, parole, furlough,
or release may arrest the person without a warrant or order any
peace officer to arrest the person without a warrant.”
Barnes
court
concluded
that
“[t]he
critical
Thus, the
issue
for
our
consideration, then, is whether [the parole officers] possessed
some ancillary authority to pat-down and arrest [a third-party] in
the course of arresting *** a known parole violator.”
{¶20} This case differs from Barnes in that the issue here
concerns an alleged strip search as opposed to a pat-down search.
Further, the pat-down search in Barnes resulted in an arrest for
carrying a concealed weapon; consequently, if the pat-down search
was illegal, the arrest and criminal charge would also be invalid.
In the present case, nothing illegal was found as a result of the
search, and plaintiff’s arrest on the bad check charge is not being
challenged.
Nevertheless, the Barnes case is instructive in
several respects.
{¶21} First, the Barnes case recognizes that protection from
unreasonable searches is a closely guarded civil liberty.
holding
that
the
parole
officer’s
pat-down
search
of
In
Barnes
“constituted a permissible protective frisk for weapons pursuant to
Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868,
and its progeny,” the court quoted the following language from the
Terry case:
{¶22} “There must be a narrowly drawn authority to permit a
reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime.
The officer
need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger.”
{¶23} Here, again, a strip search is involved, which is a more
invasive process than a pat-down search, thus, the authority to
conduct such search should logically be even more narrowly drawn.
Additionally, the Terry case involves peace officers, as opposed to
the
parole
officer’s
conduct
in
question
in
this
case.
Nevertheless, the court finds that the rationale in Barnes and
Terry can be extended to justify Officer Tibbett’s search of
plaintiff herein.
{¶24} Specifically, the court in Barnes found from the record
that “specific and articulable facts” existed to justify the
officers’ concern for their safety and the request to conduct a pat
down.
After listing those facts, the court held that, in addition
to their statutory authority to arrest a parole violator, the
officers
also possessed the ancillary authority to conduct a
weapons frisk of a third-party, non-parolee.
In so holding, the
court stated:
{¶25} “Indeed, it would be anomalous to hold that parole
officers may carry weapons like peace officers, place themselves in
peril like peace officers, and conduct lawful arrests like peace
officers, yet not protect themselves in the face of apparent
danger.
Thus, within the context of their limited statutory
authority to arrest parole violators, we hold that parole officers
possess the concomitant authority to conduct a weapons frisk of a
non-parolee when the facts and circumstances would warrant a
reasonably prudent peace officer in doing the same.”
{¶26} In this case, the search of plaintiff may be construed to
have amounted to a strip search; however, even after very narrowly
drawing Officer Tibbetts’ authority to conduct such search, the
court is convinced that specific and articulable facts existed
which, along with the rational inferences from those facts,
would
have warranted a reasonably prudent peace officer in doing the
same.
The relevant facts include: 1) that deadly weapons were
found during an authorized search of the residence; 2) plaintiff
admitted that she knew the weapons were present; 3) ammunition for
a handgun was found; 4) drugs and pornographic videotape were
found; 5) plaintiff herself posed for some of the photographs
confiscated in the search; 6) plaintiff knew that her husband had
violated the terms of his parole, she participated in certain
violations and she knew that his arrest was imminent.
Based upon
these facts, it may logically be inferred that plaintiff might
conceal a handgun for her husband while the search of the residence
was in progress.
Thus, the court concludes that plaintiff was not
an innocent victim of a strip search; it was not in any sense a
“suspicionless” search, and Officer Tibbetts’ request to search was
justified.
{¶27} Further, the court is persuaded that the search conducted
by Tibbetts was the least intrusive search necessary under the
circumstances.
She did not touch plaintiff’s breasts or body at
any time; the entire incident lasted only a few minutes, and
plaintiff stated that she was not even certain whether Officer
Tibbetts actually saw her breasts.
To the contrary, the weight of
the evidence suggests that if plaintiff’s breasts were exposed, it
was through her own action rather than through any conduct on the
part of Officer Tibbetts.
For these reasons, this court concludes
that probable cause existed for the search of plaintiff and that
Officer Tibbetts’ limited statutory authority to arrest parole
violators included the right to conduct a search of plaintiff under
the facts and circumstances of this case.
Additionally, the court
concludes that even if Officer Tibbetts did not know the Ohio
Revised
Code
section
that
applied
to
her
conduct,
knowledgeable about the limits of her authority.
she
was
{¶28} Plaintiff’s next cause of action is asserted for invasion
of privacy and/or seclusion premised upon the decision in Hidey v.
Ohio State Highway Patrol, supra.
In that case, the Tenth District
Court of Appeals held that the conduct of a State Highway Patrol
officer in shining a flashlight down the front of a woman’s pants,
and down the back of her pants, thereby observing her buttocks,
constituted an intrusion upon the woman’s seclusion.
The court
made the determination in ruling upon the essential character of
the case for the purposes of applying the appropriate statute of
limitations;
the
merits
of
the
claim
were
not
addressed.
Nevertheless, the court offered the following in definition of the
claim:
{¶29} “[t]he
Supreme
Court
of
Ohio
has
recognized
three
actionable types of invasion of privacy: (1) the unwarranted
appropriation
or
exploitation
of
one’s
personality;
(2)
the
publicizing of one’s private affairs with which the public has no
legitimate concern; or (3) the wrongful intrusion into one’s
private activities in such a manner as to outrage or cause mental
suffering,
shame
sensibilities.
or
humiliation
to
a
person
of
ordinary
Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d
340, paragraph two of the syllabus.”
{¶30} In this case, as in Hidey, plaintiff claims the third
type of invasion of privacy.
In order to prevail on such claim,
plaintiff must show that the intrusion would be highly offensive to
a reasonable person.
Section 652B.
a finding.
Restatement of Law 2d, Torts (1965) 378,
Here, the evidence simply does not substantiate such
As previously stated, the strip search was perhaps the
least intrusive form of such search that could be imagined: it took
place in a private area; it was very brief; it was conducted by a
woman; there was no touching, and the evidence is unclear as to
whether
Officer
Tibbetts
even
looked
at
plaintiff’s
breasts.
Moreover, the court has found that probable cause existed for the
search.
{¶31} In contrast, the officer in Hidey was a male, he pulled
the
female
subject’s
pants
away
from
her
body,
he
shined
a
flashlight down the front and back of her pants, he actually
observed the subject’s buttocks and, following his request, he
actually
observed
her
bra
and
left
breast.
The
search
was
conducted on the berm of an interstate highway, in view of passing
traffic, after the subject’s boyfriend was pulled over for driving
80 mph in a 60 mph zone.
The officer’s suspicions were aroused
when he saw a lot of moving around in the vehicle, however, he
found no illegal items after searching both parties.
Although the
court did not rule on the merits of the claim, it stated: “[w]hat
is underneath [one’s] clothing is private and a part of [one’s]
seclusion.
The intrusion upon these private matters, especially
while on the side of an interstate highway, would be highly
offensive to a reasonable person and, indeed, [the woman] averred
that such acts caused her humiliation, embarrassment and mental
distress.”
{¶32} In short, the circumstances here differ markedly from
those in Hidey.
For the reasons set forth above, the court finds
that Officer Tibbetts’ conduct would not be highly offensive to a
reasonable person and did not intrude upon plaintiff’s seclusion or
violate her right to privacy.
{¶33} Accordingly, judgment shall be entered for defendant.
As
a final matter, the court notes that, at the outset of the
proceedings, plaintiff’s motion to reinstate her claim for attorney
fees pursuant to R.C. 2933.32(C)(3) was GRANTED.
In light of the
decision rendered herein that plaintiff’s claims are DENIED.
{¶34} This
liability.
case
was
tried
to
the
court
on
the
issue
of
The court has considered the evidence and, for the
reasons set forth in the decision filed concurrently herewith,
judgment is rendered in favor of defendant.
assessed against plaintiff.
Court costs are
The clerk shall serve upon all parties
notice of this judgment and its date of entry upon the journal.
________________________________
J. WARREN BETTIS
Judge
Entry cc:
Christopher J. Pagan
1501 First Avenue
Middletown, Ohio 45044
Attorney for Plaintiff
Eric A. Walker
Assistant Attorney General
65 East State St., 16th Fl.
Columbus, Ohio 43215
Attorney for Defendant
LH/cmd
Filed August 13, 2003
To S.C. reporter August 21, 2003
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