OPINION
BALES, Justice.
¶ 1 This case involves an attempt to serve process on persons and business entities in Mexico via postal channels and email. We hold that such service is incompatible with Mexico's accession to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Service Convention"), which provides that service of foreign judicial documents in Mexico must be made through Mexico's Ministry of Foreign Affairs.
I.
¶ 2 In 2008, the Lac Vieux Desert Band of Lake Superior Chippewa Indians and a holding company created by the Tribe (collectively, the "Tribe") filed an action in the Maricopa County Superior Court against Arturo and Juan Jose Rojas Cardona and four corporate entities (collectively, the "Six Defendants"). The Tribe also sued several other defendants that are not relevant to this opinion. The lawsuit concerns the Tribe's investment in a casino project in Guadalupe, Mexico.
¶ 3 The Tribe moved ex parte for alternative service on the Six Defendants. The superior court, although later observing that each proposed method of service was likely insufficient standing alone, approved the "cobbling together" of service by the following means: (1) certified mail to the Six Defendants' attorneys of record at their domestic addresses; (2) email to Juan Jose Rojas Cardona at two addresses; (3) Federal Express delivery to the Six Defendants with return receipt requested at an address in Mexico where the parties had previously met; and (4) mail to Arturo Rojas Cardona at his last known domestic addresses.
¶ 4 The Tribe complied with the order but did not receive delivery confirmation at the Mexican address. The Tribe also did not receive a return receipt for the mailings sent domestically to Arturo Rojas Cardona, but the superior court deemed service by these mailings to be complete. Cf. Ariz. R. Civ. P. 4.2(c) (allowing service by mail outside Arizona but requiring a signed and returned receipt). The Six Defendants made a limited appearance and moved to dismiss for insufficiency of service of process, arguing that the alternative process violated the Hague Service Convention and Arizona Rule of Civil Procedure 4.2. Denying the motion, the superior court concluded that the Hague Service Convention did not prohibit the alternative methods of service it previously ordered. The court of appeals declined special action jurisdiction.
¶ 5 Because the proper method of service on persons and business entities in Mexico is an issue of statewide importance, we granted review to consider whether the Hague Service Convention allows service there by the means approved by the superior court. We have jurisdiction under Article 6, Section 5( 3) of Arizona's constitution and Arizona Revised Statutes ("A.R.S.") section 12-120.24 (2003).
We declined to review the superior court's rulings on motions to dismiss for lack of personal jurisdiction and subject matter jurisdiction. Of the Six Defendants, one corporation (Juegos de Entretenimiento y Videos de Monterrey) is not a Petitioner here. The Petitioners are the other Six Defendants and Guadalupe Recreation Holdings, L.L.C.
II.
¶ 6 Service of process in a foreign country is governed by Arizona Rule of Civil Procedure 4.2 and the Hague Service Convention. Rule 4.2(i)(1) generally provides that service may be effected outside the United States on individuals by any internationally agreed means reasonably calculated to give notice, such as the means authorized by the Convention. A court may also direct service "by other means not prohibited by international agreement." Ariz. R. Civ. P. 4.2(i)(3). Rule 4.2(k) contains similar provisions for service abroad on corporations or partnerships and other unincorporated associations. Thus, if the Convention applies, its provisions determine whether the superior court properly ordered alternative service.
¶ 7 The Convention is a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 108 S.Ct 2104, 100 L.Ed.2d 722 (1988). The United States ratified the Convention without reservation in 1967. Id.; Hague Service Convention, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. Although Mexico was not an original signatory, it acceded to the Convention in 1999 by depositing an instrument of accession with the Ministry of Foreign Affairs of the Netherlands. See Hague Service Convention at art. 28; Accession (with Declarations) of Mexico to the Hague Service Convention, 2117 U.N.T.S. 318 (2000).
¶ 8 The Convention seeks "to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions . . . receive actual and timely notice of suit, and to facilitate proof of service abroad." Schlunk, 486 U.S. at 698, 108 S.Ct. 2104. Broad in scope, the Convention applies "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad." Hague Service Convention at art. 1. The Convention does not apply, however, "where the address of the person to be served with the document is not known." Id.
¶ 9 The Convention requires each contracting state to establish a central authority to "receive requests for service coming from other contracting [s]tates." Id. at art. 2. Once a central authority receives a request for service that complies with the Convention, it must "itself serve the document" or "arrange to have it served by an appropriate agency." Id. at arts. 3, 5. The central authority then provides the applicant with a certificate identifying how the document was served or the reasons that prevented service. Id. at art. 6. Through these procedures, "[t]he Convention provides simple and certain means by which to serve process on a foreign national." Schlunk, 486 U.S. at 706, 108 S.Ct. 2104. Complying with the Convention may also facilitate subsequent efforts by parties to enforce their judgments abroad. Id.
¶ 10 The Convention also contemplates certain alternative means of service under Article 8, which allows service through a state's diplomatic or consular agents, and Article 10, which allows judicial documents to be sent directly to persons abroad via postal channels or by personal service "through the judicial officers, officials, or other competent persons of the [s]tate of destination." Hague Service Convention at arts. 8, 10. Significantly, the Convention permits a contracting state to object to the alternative means of transmission provided in Article 8 (except as concerns service on a national of the state in which the documents originate) and Article 10. Id.; see also id. at art. 21 (allowing each contracting state to inform the Dutch Ministry of Foreign Affairs of any "opposition to the use of methods of transmission pursuant to articles 8 and 10").
¶ 11 Mexico has objected to these alternative methods of service. Its instrument of accession, which includes declarations clarifying Mexico's position with respect to various articles of the Convention, opposes service to persons in Mexican territory under Articles 8 and 10. Accession (with Declarations) of Mexico, 2117 U.N.T.S. at 319 ¶¶ IV, V. Thus, service through Mexico's central authority, its Ministry of Foreign Affairs, is the exclusive means by which service may be accomplished in Mexico. See Restatement (Third) of Foreign Relations Law § 471 cmt.e (1987) ("[F]or states that have objected to all of the alternative methods, service through the Central Authority is in effect the exclusive means.").
Mexico's accession to the Convention does recognize that, after its Ministry of Foreign Affairs forwards documents to an appropriate Mexican judicial authority, the judicial authority may use simplified procedures to effect service in certain circumstances. See Accession (with Declarations) of Mexico, 2117 U.N.T.S. at 319 ¶ V.
¶ 12 Some confusion has nevertheless arisen regarding Mexico's reservations against the use of alternative service. When Mexico deposited its instrument of accession, the Dutch Ministry requested either an English or French translation of Mexico's Spanish declarations for distribution to the other contracting states. Charles B. Campbell, No Sine: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention, 19 Minn. J. Int'l L. 107, 121 n. 69 (2010). Mexico provided the Ministry with an English "courtesy translation" that mistranslated Mexico's objection to Article 10 as: "[T]he United Mexican States are opposed to the direct service of documents through diplomatic or consular agents to persons in Mexican territory according to the procedures described in sub-paragraphs a), b) and c)." English Courtesy Translation of Accession (with Declarations) of Mexico to the Hague Service Convention, 2117 U.N.T.S. 318, 321 ¶ V (2000) (emphasis added).
¶ 13 This mistranslation, which erroneously inserts the modifier "through diplomatic or consular agents" into the original Spanish version, has caused some U.S. courts and agencies to conclude that Mexico objects to alternative methods of service only when attempted through diplomatic or consular agents. See, e.g., UNITE Nat'l Ret. Fund v. Ariela, Inc., 643 F.Supp.2d 328, 333-34 (S.D.N.Y. 2008) (relying on "courtesy translation" and concluding that because Mexico's Article 10 declaration "restricts its objection to service through `diplomatic or consular agents,'" Mexico's declaration "does not expressly prohibit or object to service via postal channels"); U.S. Dep't of State, Circular: International Judicial Assistance Mexico (advising that service may be accomplished in Mexico by international registered mail because "no provision in Mexic[an] law specifically prohibit[s]" such service).
Available at http://web.archive.org/web/ 20080328041048/http://travel.state.gov/law/info/ judicial/judicial_677.html (last visited July 21, 2010); revised October 2009 to state "[w]hile cases have been reported where U.S. courts have accepted alternative methods of service, Mexico's accession to the Hague Service Convention indicates that service through the Mexico Central Authority is the exclusive method available." Available at http://travel.state.gov/law/judicial/judicial_677.html (last visited July 21, 2010).
¶ 14 The English "courtesy translation" was not Mexico's instrument of accession, but was submitted so that the Dutch Ministry could transmit a depositary notification of Mexico's accession to the other contracting states. Campbell, supra, at 120-21. Mexico's President signed, and its Senate ratified, the instrument of accession in Spanish, making these Spanish declarations evidence of Mexico's intent to disallow alternative service. Id. at 120-21, 126-27 n. 87; see also Schlunk, 486 U.S. at 700, 108 S.Ct. 2104 (noting that to ascertain the meaning of treaties, courts "may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties"). We also note that the reference to service "through diplomatic or consular agents" in the English "courtesy translation" of Mexico's objections to Article 10 is somewhat anomalous on its face, inasmuch as Article 10, unlike Article 8, does not concern service through diplomatic or consular officials.
¶ 15 The original Spanish declaration, not the English "courtesy translation," expresses the intent and determines the terms of Mexico's accession to the Convention. Cf. Todok v. Union State Bank, 281 U.S. 449, 454, 50 S.Ct. 363, 74 L.Ed. 956 (1930) (stating that for a treaty ratified in French, the French text, not the English translation, controlled). Compliance with the Convention, as acceded to by Mexico, is "mandatory in all cases to which it applies." Schlunk, 486 U.S. at 699, 705, 108 S.Ct. 2104 ("By virtue of the Supremacy Clause, U.S. Const. Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law."); see also Kadota v. Hosogai, 125 Ariz. 131, 134, 608 P.2d 68, 71 (App. 1980) ("Arizona cannot attempt to exercise jurisdiction under a rule promulgated by its courts if that rule would violate an international treaty.").
¶ 16 Mexico's blanket objection to any alternative methods of service under Articles 8 and 10 renders service through its Ministry of Foreign Affairs the exclusive means available under the Convention. When the Convention applies, alternative service in Mexico through postal channels and email is prohibited, and the superior court erred in ruling otherwise. We recognize that this error may have resulted from the combination of the English mistranslation of Mexico's declarations and the U.S. State Department circular, not revised until after the superior court's ruling, which mistakenly indicated that service may be effected in Mexico by registered mail.
¶ 17 The Tribe acknowledges that it has not attempted service through Mexico's Ministry of Foreign Affairs but contends that it has nonetheless validly effected service. The Tribe first argues that the Convention does not apply because Mexican addresses for the Six Defendants are not known. Moreover, noting that the Convention does not determine the validity of service on foreign defendants within the United States, see Schlunk, 486 U.S. at 707, 108 S.Ct. 2104, the Tribe contends that service was validly effected domestically on either Arturo Rojas Cardona or the attorneys for the Six Defendants, and these persons were authorized to receive service of process on behalf of the other defendants. We do not reach these arguments, which may be considered in the first instance by the superior court on remand.
III.
¶ 18 For the foregoing reasons, we vacate the superior court's order denying the Six Defendants' motion to dismiss for insufficiency of service of process and remand for further proceedings consistent with this opinion.
CONCURRING: REBECCA WHITE BERCH, Chief Justice, ANDREW D. HURWITZ, Vice Chief Justice, MICHAEL D. RYAN and A. JOHN PELANDER, Justices.
The question here is whether the partial strip search of Ms. Brown, an attorney ordered into custody in the midst of a court proceeding, was reasonable under the Bell test. The Bell test requires courts to balance the "need for the particular search against the invasion of personal rights that the search entails." Id. at 559. " Bell has not been read as holding that the security interests of a detention facility will always outweigh the privacy interests of the detainees." Dobrowolskyj v. Jefferson County, Ky., 823 F.2d 955, 957 (6th Cir. 1987). In assessing the balance, courts must consider "the scope of the particular intrusion, the manner in which it is conducted, the justifications for initiating it, and the place in which it is conducted." Bell, 441 U.S. at 559.
Applying the Bell factors to the facts of this case as stated in the complaint, it becomes clear that DSO Short's search, as alleged in the Third Amended Complaint, was unreasonable and violated Ms. Brown's Fourth Amendment right to be free from unreasonable searches.
i. The Justifications for Initiating the Intrusion
Whether the search was justified is the "most important factor" in the Bell analysis. Bame, 647 F. Supp. 2d at 51. Plaintiff argues that a law enforcement officer must have particularized reasonable suspicion that the object of a strip search has contraband on her person; DSO Short disagrees. Opp'n at 7-9; Reply at 5-6 ("The D.C. Circuit has not addressed the Fourth Amendment implications of partial or complete strip searches conducted in correctional facilities, making Bell the only binding precedent. Thus Ms. Brown's assertion that the Court can skip the Bell analysis, and simply adopt a per se rule that any (partial or complete) `strip search' is unconstitutional absent individualized suspicion, is incorrect."). Notably, DSO Short cites no law. Her most curious argument misperceives the Court's authority. Without precedent in this Circuit refusing to find that any strip search is unconstitutional without individualized suspicion, the Court is perfectly free to be persuaded by precedent in other jurisdictions or the force of a party's arguments alone.
Until 2008, every federal circuit court to have faced the issue ruled that, to be found constitutional under Bell, strip searches of pre-trial arrestees charged with minor offenses must be justified by at least reasonable suspicion that the arrestee is hiding weapons or contraband. See Bame, 647 F. Supp. 2d at 51 (citing cases); see also Edgerly v. City and County of San Francisco, 599 F.3d 946, 957 (9th Cir. 2010); Serna v. Goodno, 567 F.3d 944, 951 (8th Cir. 2009) ("[T]he facts and holding of Bell illustrate that some unarticulated level of individualized suspicion was present and that the Court necessarily considered this fact in its application of the balancing test."), cert. denied, 130 S.ct. 465 (2009); N.G. v. Connecticut, 382 F.3d 225, 232 (2d Cir. 2004); Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996); Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993) (holding unconstitutional strip searches of arrestees charged with minor traffic violations); Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989) ("We have found no authority approving a practice of conducting a strip search of a person arrested for a simple traffic violation in the absence of at least reasonable suspicion. . . ."); Logan v. Shealy, 660 F.2d 1007, 1013-14 (4th Cir. 1981) (holding unconstitutional a strip search of an arrestee charged with driving while intoxicated where probable cause was lacking); Tinetti v. Wittke, 620 F.2d 160, 160 (7th Cir. 1980) (per curiam) (holding unconstitutional strip searches of arrestees charged with minor traffic offenses without probable cause); see also United States v. Scott, 987 A.2d 1180, 1194 (D.C. 2010) ("particularized justification must exist for a strip search of an arrestee to be deemed reasonable under the Fourth Amendment"). In 2008, the Eleventh Circuit held that Bell does not require individualized suspicion for strip searches. Powell v. Barrett, 541 F.3d 1298, 1306-07 (11th Cir. 2008) (en banc). The Eleventh Circuit remains an outlier on the interpretation of Bell with respect to individualized suspicion.
The federal circuit courts are slightly more divided on the question whether the Fourth Amendment requires individualized suspicion to justify a strip search of an arrestee charged with a minor offense who is to be intermingled with the general prison population. The Ninth Circuit recently held that, where an arrestee is to be intermingled with the general prison population, the heightened institutional security concerns shift the balance of interests such that individualized suspicion is not constitutionally necessary. Edgerly, 599 F.3d at 957 (citing Bull v. City and County of San Francisco, 595 F.3d 964, 977 (9th Cir. 2010) (en banc)); see also Bame, 647 F. Supp. 2d at 51 (emphasizing, in finding that the strip searches at issue were constitutional, that arrestees were not going to be placed in the general prison population). Similarly, in Powell, where the Eleventh Circuit held that individualized suspicion is never constitutionally necessary under Bell, the Court emphasized that the plaintiffs were strip searched "solely because they were entering the general population of inmates at the detention facility." Powell, 541 F.3d at 1300. On the other hand, the majority of the federal circuit courts that have considered this issue have rejected the argument that intermingling negates the constitutional necessity of individualized suspicion. See, e.g., Savard v. Rhode Island, 338 F.3d 23, 37 (1st Cir. 2003) (en banc) ("It is not commingling, per se, that presents a security problem; it is commingling that involves a risk of illegal traffic among the commingled inmates."); Masters, 872 F.2d at 1254 ("[T]he fact of intermingling alone has never been found to justify [a strip] search without consideration of the nature of the offense and . . . whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband into the institution."); Walsh v. Franco, 849 F.2d 66, 69 (2d Cir. 1988) (rejecting the argument that a blanket strip search policy for all misdemeanor arrestees was constitutional because they were to be intermingled with arraigned inmates); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984) (intermingling is only one factor to be considered); see also Warner v. Grand County, 57 F.3d 962, 964 (10th Cir. 1995) ("a brief intermingling with the general jail population does not justify a strip search absent reasonable suspicion of drugs or contraband").
Ultimately, the Bell balancing test "is not capable of precise definition or mechanical application," but must examine the specific circumstances of the search in question to determine whether that search was conducted in a "reasonable manner." Bell, 441 U.S. at 560. Bell's case-specific balancing test would be inconsistent with a per se rule regarding whether the Fourth Amendment requires individualized suspicion for certain classes of arrestees. See, e.g., Schmidt v. City of Bella Villa, 557 F.3d 564, 572 (8th Cir. 2009) ("[r]ather than triggering a per se rule, [a partial strip search] requires balancing the factors set out in Bell"); United States v. Williams, 477 F.3d 974, 977 (8th Cir. 2007) (noting, with regard to on-street searches, that "a per se rule strikes [the court] as inconsistent with the balancing approach of [ Bell]"). Certainly, whether a detainee is to be placed in the general prison population and whether the search was justified by individualized suspicion are the two most important factors to be considered in determining whether a search was justified under Bell. See, e.g., Archuleta v. Wagner, 523 F.3d 1278, 1284 (10th Cir. 2008) (noting that these two factors are the "primary concerns in determining whether a strip search is reasonable"). However, because of the requisite case-specific considerations that Bell's balancing test entails, 441 U.S. at 559, neither of these factors is necessarily dispositive. See, e.g., Hill, 735 F.2d at 394 ("[I]ntermingling is only one factor to consider in judging the constitutionality of a strip search.").
Individualized suspicion was clearly absent in Ms. Brown's case. Ms. Brown was not arrested for a criminal violation; she was taken into custody for alleged civil contempt proceedings, and her detention was later determined to be unwarranted. See Third Am. Compl., Attach. B; see also Shroff v. Spellman, 604 F.3d 1179, 1191 (10th Cir. 2010) (noting, in holding search unconstitutional, that as the plaintiff was arrested "without probable cause," "but for the unlawful seizure of her person by [defendant], [plaintiff] would not have been subjected to an invasion of her personal right not to be required to expose her breasts before another person"). Further, Ms. Brown is an attorney who appears regularly before judges of the Superior Court and wears a badge identifying herself as such. Third Am. Compl ¶ 15. Indeed, Ms. Brown had passed through a metal detector on her way into the courthouse. See Id.
While this point is relevant to the merits of the constitutional question, it is immaterial with regard to the second part of the qualified immunity inquiry, as DSO Short could not have anticipated that Judge Bayly's order that Ms. Brown be taken into custody would later be determined to be unwarranted. See Mot. to Dismiss at 17 n. 6.
The heightened institutional security concerns arising from the fact that Ms. Brown was placed in a holding cell weighs against the lack of individualized suspicion. However, in light of the consensus among the majority of federal circuit courts that strip searches of arrestees charged with minor offenses are unjustified under Bell, even where the arrestee is to be intermingled with the general prison population, the institutional security interests do not tip the scales. See, e.g., Masters, 872 F.2d at 1254; Walsh, 849 F.2d at 69; Hill, 735 F.2d at 394. Thus, the first Bell factor — the justifications for initiating the intrusion — weighs in Plaintiff's favor.
ii. The Scope and Circumstances of the Intrusion
The remaining Bell factors, which examine the scope and circumstances of the intrusion, also weigh in favor of Plaintiff. Plaintiff argues that the search of Ms. Brown constituted a "strip search." See Opp'n at 5-7. As the D.C. Circuit has recognized, the balancing inquiry set forth in Bell "remains the same regardless of how one characterizes the search." BNSF Ry. Co. v. Dep't of Transp., 566 F.3d 200, 208 (D.C. Cir. 2003); see also Stanley v. Henson, 337 F.3d 961, 964 (7th Cir. 2003) ("Whether we . . . label the process a `strip search' or merely a `search' is unimportant, as the analysis remains the same."); Foster, 675 F. Supp. 2d at 992 ("the result of neither case turns on the terminology employed"). Therefore, it is not necessary to draw a line between a mere search and a strip search for purposes of determining the legal standards to apply. However, whether the search constitutes a strip search as defined in other contexts is relevant to the consideration of which cases from other jurisdictions are to be regarded as factually comparable to the instant case.
The Supreme Court has not specifically set forth the definition of a strip search. See Safford Unified Sch. Dist. No. 1 v. Redding, 129 S.ct. 2633, 2641 (2009) ("we would not define strip search . . . in a way that would guarantee litigation about who was looking and how much was seen"). Fifteen states have statutorily defined strip searches in broad terms that include a visual inspection of underclothing or breasts. CAL. PENAL CODE § 4030(c) (West 2009); COLO. REV. STAT. ANN. § 16-3-405(2) (West 2009); CONN. GEN. STAT. ANN. § 54-33k (West 2009); FLA. STAT. ANN. § 901.211(1) (West 2009); 725 ILL. COMP. STAT. 5/103-1(d) (West 2009); IOWA CODE ANN. § 702.23 (West 2009); KAN. STAT. ANN. § 22-2520(a) (2008); MICH. COMP. LAWS. ANN. § 764.25a(1) (West 2009); MO. ANN. STAT. § 544.193(1)(2) (West 2009); N.J. STAT. ANN. § 2A:161A-3(a) (West 2009); OHIO REV. CODE ANN. § 2933.32(A)(2) (West 2009); TENN. CODE. ANN. § 40-7-119(a) (West 2009); VA. CODE ANN. § 19.2-59.1(F) (West 2009); WASH. REV. CODE ANN. § 10.79.070(1) (West 2009); WIS. STAT. ANN. § 968.255(1)(b) (West 2009). Several courts have adopted similarly broad definitions of a strip search. See, e.g., Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57, 62, 70 (1st Cir. 2003) (holding that jury instructions defining a strip search as "a deliberate, visual inspection of the naked body of a prisoner which includes the examination of the mouth and armpits" provided an "overly narrow" definition warranting a new trial); Amaechi v. West, 237 F.3d 356, 365 (4th Cir. 2001) (defining a strip search as "having an arrested person remove or arrange some or all of his clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts, or undergarments"); Foster v. City of Oakland, 675 F Supp. 2d 992, 1003 (N.D. Cal. 2009) ("there is no reason for this court to conclude that a visual inspection of [arrestee]'s underwear was not a `strip search'"); Scott, 987 A.2d at 1193-94 (defining
a strip search as "having a prisoner remove or arrange his/her clothing to allow a visual inspection of the genitals, buttocks, anus, breasts, and undergarments"); State v. Nieves, 861 A.2d 62, 70 (Md. 2004) ("strip searches involve the removal of the arrestee's clothing for inspection of the under clothes and/or body"); People v. Hall, 886 N.E.2d 162, 165 (N.Y. 2008) (defining strip search as "requir[ing] the arrestee to disrobe so that a police officer can visually inspect the person's body"), cert. denied, 129 S.ct. 159 (2008). Under these definitions, DSO Short's search of Ms. Brown constituted at least a partial strip search.
As DSO Short points out, strip searches and body cavity searches more intrusive than the search at issue here have been held constitutional. See Mot. to Dismiss at 9. However, the intrusiveness of the search, like the other Bell factors, must "focus on the specific facts and circumstances at hand, not on the facts other courts have faced." Bame, 647 F. Supp. 2d at 54. With the exception of Powell, 541 F.3d at 1307, where the court held that Bell does not require individualized suspicion, the cases cited by DSO Short on this point involved searches for which some specific justification existed beyond general institutional security concerns. See Serna, 567 F.3d at 946 (plaintiff, having been determined to be sexually dangerous, was civilly committed); Stanley, 337 F.3d at 962 (plaintiff was arrested for misdemeanor battery on a police officer); Kelsey v. County of Schoharie, 567 F.3d 54, 56 (2d Cir. 2009) (clothing exchange requirement applied only to inmates not expected to make bail). Where, as here, there was no individualized suspicion, even a relatively minimal intrusion may be unreasonable under Bell. See, e.g., Shroff, 604 F.3d at 1191 (holding that officer's order that a female cadet be present while plaintiff used a breast pump, which required plaintiff to "expose her breasts in the presence of another person" without justification, constituted an unreasonable search under Bell).
The location of the search — within view of the male and female holding cells and in the presence of a male deputy marshal — also supports Plaintiff's position. Courts across the country are "uniform in their condemnation of intrusive searches performed in public." Campbell v. Miller, 499 F.3d 711, 719 (7th Cir. 2007); United States v. Williams, 477 F.3d at 977 (emphasizing that police officers should "take precautions to insure that a detainee's privacy is protected from exposure to others unconnected to the search"); Amaechi, 237 F.3d at 364 ("[W]e have repeatedly emphasized the necessity of conducting a strip search in private."); United States v. Ashley, 37 F.3d 678, 682 (D.C. Cir. 1994) (noting, in holding a search constitutional, that "precautions were taken to insure that [the arrestee] was not subjected to public embarrassment"); Hill, 735 F.2d at 395 (holding unconstitutional "routine strip searches in a public area of persons detained for minor traffic offenses"); Iskander v. Village of Forest Park, 690 F.2d 126, 129 (7th Cir. 1982) ("Defendant naturally does not maintain that routine strip searches may be conducted in a room open to the prying eyes of passing strangers consistent with the reasonableness requirement on all searches under the Fourth Amendment, nor would such a contention be entertained."); United States v. Ford, 232 F. Supp. 2d 625, 630 (E.D. Va. 2002) (finding that a roadside search that "exposed the defendant's buttocks on the side of a public highway in broad daylight" violated the Fourth Amendment); People v. Mitchell, 2 A.D.3d 145, 148 (N.Y. App. Div. 2003) ("a strip search, conducted in a public place . . . is not justified or reasonable absent the most compelling circumstances . . . that pose potentially serious risks to the arresting officer or others in the vicinity); see also Logan, 660 F.2d at 1013-14 (holding unconstitutional a strip search carried out "in an area [of the police station] exposed to public view").
As DSO Short correctly points out, the Fourth Amendment does not require searches to be conducted in complete privacy, and "`prisoners' legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited.'" Mot. to Dismiss at 11 (quoting Byrd v. Maricopa Sheriff's Dep't, 565 F.3d 1205, 1222 (9th Cir.), reh'g granted, 583 F.3d 673 (9th Cir. 2009)). Further, it is well-established that the Fourth Amendment does not require employing the least intrusive means possible. Bd. of Educ. of Independent Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 837 (2002). However, whether the official carrying out a search "take[s] steps commensurate with the circumstances to diminish the potential invasion of [the detainee's] privacy" is a factor to be considered in the Bell analysis. United States v. Williams, 477 F.3d at 977 (emphasis added). DSO Short took no such steps in conducting a partial strip search of Ms. Brown in the presence of a male deputy Marshal and in view of the male and female holding cells.
Based on the facts alleged in the complaint, the lack of justification for the search, together with its scope and circumstances, show that DSO Short's conduct fails to satisfy Bell's reasonableness test and, thus, violated Plaintiff's Fourth Amendment right to be free from unreasonable searches. See Saucier, 533 U.S. at 201.
2. DSO Short's Conduct Was Not Objectively Reasonable in Light of Clearly Established Law
The second step of the qualified immunity inquiry requires courts to examine whether the defendant's conduct was objectively reasonable in light of clearly established law. Harlow, 457 U.S. at 819. This step asks whether it would be "clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. The court looks to cases from the Supreme Court, the D.C. Circuit Court of Appeals, and other courts for principles "exhibiting a consensus view." Johnson v. District of Columbia, 528 F.3d at 976. Such precedent need not
involve "materially similar facts" as long as "`the state of the law [at the time of the incident] gave [the official] fair warning that [her alleged misconduct] . . . was unconstitutional.'" Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The Supreme Court recently reaffirmed this standard, holding that even in novel factual circumstance, "`officials can still be on notice that their conduct violates established law'" although that conduct might be "less than an outrage." Redding, 129 S.ct. at 2643-44 (quoting Hope, 536 U.S. at 741). Although the D.C. Circuit Court of Appeals has not ruled on this precise issue, officials may rely on out-of-circuit cases in their good-faith efforts to comply with the law. Pearson, 129 S.ct. at 823; see also Bame, 647 F. Supp. 2d at 53-54. The opinions of the D.C. Court of Appeals, which recently considered this issue, Scott, 987 A.2d at 1194, also bears on the analysis.
It was not objectively reasonable for DSO Short to believe that it would be lawful to conduct a partial strip search of Ms. Brown under the circumstances described in the Third Amended Complaint. Bell itself requires, at a minimum, some balancing of the governmental justification versus the intrusion of the search upon the individual. 441 U.S. at 559. On August, 29, 2007, the date of DSO Short's search, the federal circuit courts to have addressed the issue had unanimously held that, absent individualized suspicion, strip searches of detainees charged with minor offenses were unreasonable under Bell. See Bame, 647 F. Supp. 2d at 51 ("Until 2008, every federal circuit court to have faced the issue (ten out of twelve) ruled that, under Bell, suspicionless strip searches of pre-trial arrestees charged with non-violent, non-drug crimes was unreasonable and thus unconstitutional."). The cases that DSO Short cites in support of her proposition that individualized reasonable suspicion is not the consensus view were decided after the search at issue in this case. Serna, 567 F.3d 944 (decided in 2009); Powell, 541 F.3d 1298 (decided in 2008). DSO Short suggests that, at the time of the search, the Eleventh Circuit had begun to "doubt[] the correctness of its precedent" requiring reasonable suspicion for strip searches of arrestees charged with minor offenses by 2007. Mot. to Dismiss at 16. Any such doubt would not be sufficient to undermine the "consensus view" exhibited by the federal circuit courts at that time. See Johnson v. District of Columbia, 528 F.3d at 976. Further, the D.C. Court of Appeals' recently held that "particularized justification must exist for a strip search of an arrestee to be deemed reasonable under the Fourth Amendment." Scott, 987 A.2d at 1194. Although Scott was decided in 2010 and thus does not bear on the state of the law at the time of the incident at issue in this case, it undermines the proposition that courts in the District of Columbia doubted the correctness of the consensus view.
The disagreement among the federal circuit courts regarding a possible exception to this general rule where the arrestee is to be intermingled with the general prison population did not emerge until after the search at issue here. See Bull, 595 F.3d at 977 (decided in 2010); Powell, 541 F.3d at 1300 (decided in 2008). In 2003, the First Circuit observed that the relevant precedent "would not permit a reasonable prison official to conclude that minor offense arrestees could be strip searched without reasonable suspicion simply because the prison officials decide to mix the arrestees with other prisoners." Savard, 338 F.3d at 37.
Further, it is well-established that whether a searching party has taken reasonable efforts to protect the privacy of the party being searched is an important factor in determining the reasonableness and constitutionality of a strip search. See, e.g., Campbell, 499 F.3d at 719; United States v. Williams, 477 F.3d at 977; Amaechi, 237 F.3d at 364; Ashley, 37 F.3d at 682; Hill, 735 F.2d at 394; Iskander, 690 F.2d at 129. As the Fourth Circuit observed in 1981, "no [official] could reasonably believe that conducting a strip search in an area exposed to the general view of persons known to be in the vicinity whether or not any actually viewed the search [would be] a constitutionally valid governmental invasion of [the] personal rights that [such a] search entails." Logan, 660 F.2d at 1013-14 (internal quotation marks omitted).
Therefore, at the time of the search at issue, the law was clearly established that strip searches of arrestees charged with minor offenses would, absent individualized suspicion, be held unreasonable under Bell even where the arrestee was to be intermingled with the general prison population and especially where the official conducting the search did not take reasonable efforts to protect the privacy of the party being searched. Thus, it should have been "clear to a reasonable [official]" that a partial strip search of Ms. Brown, a detainee charged only with civil contempt, without individualized suspicion, and without regard to her privacy, would be considered unreasonable under Bell. See Saucier, 533 U.S. at 202.
IV. CONCLUSION
For the reasons explained above, DSO Short's Motion to Dismiss [Dkt. # 25] will be granted in part and denied in part as follows: The Section 1983 claim will be dismissed, but Plaintiff will be permitted to proceed on her constitutional claim under Bivens, 403 U.S. 388. Further, DSO Short's motion to dismiss based on qualified immunity will be denied. A memorializing Order accompanies this Memorandum Opinion.