[PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                             ________________________                  ELEVENTH CIRCUIT
                                                                           APR 19, 2001
                                    No. 99-12169                        THOMAS K. KAHN
                                                                             CLERK
                              ________________________

                          D. C. Docket No. 94-00646-CV-WDF


RHONDA BRENT,
                                                                          Plaintiff-Appellee-
                                                                            Cross-Appellant,

                                            versus

ODESTA ASHLEY, CARL PIETRI, et al.
                                                                    Defendants-Appellants-
                                                                          Cross-Appellees.


                              ________________________

                 Appeals from the United States District Court for the
                            Southern District of Florida
                           _________________________

                                      (April 19, 2001)


Before BARKETT and WILSON, Circuit Judges, and GEORGE*, District Judge.



       *
         Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by
designation.
BARKETT, Circuit Judge:

       In this interlocutory appeal, Prospero Ellis and Seymour Schor, both United

States Customs Service inspectors, appeal the denial of their motion for summary

judgment based on qualified immunity in an action filed by Rhonda Brent alleging

violation of her Fourth Amendment rights during a strip search and x-ray examination.

Brent cross-appeals the district court’s grant of summary judgment on the basis of

qualified immunity to Ellis and Schor’s subordinates, Odesta Ashley, Carl Pietri,

Francine Williams, Ricky Grim, Kathryn Dellane, and Lee Sanchez-Blair. We affirm.

                                           FACTS

       In reviewing summary judgment, we are bound to consider all of the evidence

and the inferences drawn in the light most favorable to the non-moving party.1 Carter

v. City of Miami, 

, 581 (11th Cir. 1989). On July 20, 1991, Rhonda



       1
           We note that the defendants contest the factual predicate of Brent’s case in numerous
ways. For example, in their affidavits filed six years after the incident and attached to their
motion for summary judgment, Schor and Ellis state that they based their decision to perform the
strip search and x-ray examination of Brent on the following facts and observations: (1) Brent
and Kehinde Elbute, a passenger on Brent’s flight, fit a smuggling profile of African-American
women on the same flight as Nigerian men; (2) Brent arrived from a known source country; (3)
she showed disapproval of the treatment Elbute was receiving from law enforcement officials;
(4) her ticket had been purchased by a friend with a credit card from the same travel agency
where Elbute’s was purchased; (5) she, like Elbute, was going to Houston; (6) she wore
inexpensive clothes; and (7) she was nervous and became agitated when confronted. Further, the
defendants also claim that Brent consented to the searches. However, because we are reviewing
a summary judgment, we must resolve all factual disputes in favor of Brent. See, e.g., Hudson v.
Hall, 

, 1297 (11th Cir. 2000); Jackson v. Sauls, 

, 1166 (11th Cir.
2000).

                                               2
Brent, a United States citizen, was returning home to Houston, Texas, aboard Alitalia

Flight 618 from a vacation in Nigeria. During the Rome to Miami leg of her return

flight, Brent met Kehinde Elbute, a black Nigerian man who was also en route to

Houston. Brent and Elbute were the only black persons on the flight. The flight

arrived at Miami International Airport and the passengers disembarked from the plane.

As Brent entered the baggage claim area at the airport, she noticed Customs Agent

Ricky Grim and his inspection dog with Elbute. Brent stopped briefly, observed Grim

searching Elbute and his luggage, and shook her head in disapproval. Based on this

look and gesture, Inspector Seymour Schor instructed Inspector Carl Pietri to detain

Brent and escort her to the examination area where Elbute had been taken. Pietri

seized Brent’s passport and other documents, isolated her from other passengers and

took her to the examination area for interrogation. Brent protested Pietri’s actions,

alleging that she was being singled out because she was black.

      Schor questioned both Brent and Elbute about the nature of their trips and

personally conducted a thorough search of both of their luggage, in which he took

every item out of their bags and examined each item separately and carefully. He

found no narcotics, nor did he find any items commonly associated with drug couriers.

Brent continued to protest the search stating that she was aware of her rights and that

she was being treated this way because she was black. Despite finding no objective


                                          3
evidence that she was a drug courier, Schor continued to detain Brent for further

questioning.

       Shortly thereafter, Schor was joined by Supervisor Inspector Prospero Ellis.

Ellis re-examined Brent’s travel documents, clothing and luggage, and questioned her.

Both Ellis and Schor then decided to conduct a full body pat-down and strip search.

The report form filed by the agents at the time of the search indicated that the reasons

for conducting the search were Brent’s nervousness and her arrival from a source

country.2 Female customs agents Odesta Ashley, Lee Sanchez-Blair and Kathryn

Dellane were called in to assist.

       The body pat-down and strip search, conducted by Blair and witnessed by

Ashley and Dellane, consisted of touching Brent’s crotch area, ordering her to pull

down her clothes, removing and examining her sanitary napkin, squeezing her

abdomen from the pubis to thorax, and monitoring her responsive reactions. The

search revealed none of the typical indicators of internal drug smuggling. There was

no rigid or distended abdomen, no girdle to hold up the abdomen, no synthetic

lubricants, and no contraband could be seen in her body cavities. After the strip

       2
          Another form filed after the search indicated that the reasons for conducting the search
were Brent’s nervousness, her arrival from a source country, and the incorrect observation that
her ticket was purchased for cash. Because this form conflicts with other forms filed after the
strip search, and because it is undisputed that Brent’s ticket was purchased with a credit card, we
must disregard this additional factor when looking at the evidence in the light most favorable to
Brent. See Adickes v. S.H. Kress & Co., 

, 157 (1970).

                                                 4
search, Brent asked if she could use the bathroom. She was allowed to use the

bathroom, but was watched closely by the female agents and told not to flush the

toilet. After she had gone to the bathroom, the agents examined Brent’s urine for

signs of contraband. None were found. At some point during her detention, Brent’s

name was entered into the Treasury Enforcement Computer Systems to search for

frequent travels or past arrests. The inquiry returned nothing suspicious.

      Although the pat-down, strip search, and electronic record search revealed

nothing, Ellis and Schor nonetheless decided that an x-ray and pelvic examination at

the hospital should be performed. The search report form filed the day after the x-ray

listed the reasons for conducting the examination as Brent’s nervousness and her

arrival from a source country. Dellane handcuffed Brent and transported her to

Jackson Memorial Hospital. Prior to transport, Brent was presented with a consent

form and told that if she refused to sign it she could be held for 35 days or indefinitely

until a judge ordered the x-ray. She requested to speak with an attorney and to call

home. Both requests were denied. She signed the consent form and waived her

Miranda rights after being told she had no choice. Upon arrival at the prison ward of

the hospital, Brent was told to sign another consent form. Inspector Francine

Williams escorted Brent to the x-ray room and remained with Brent throughout the

examination. The examination revealed a complete absence of drugs. Dellane drove


                                            5
Brent back to the airport and, ten hours after she was first detained, made

arrangements for Brent to return home to Houston. Brent filed this suit against the

United States under the Federal Tort Claims Act (“FTCA”) and against nine named

customs employees, alleging the commission of common law torts and constitutional

violations pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 

(1971). The district court dismissed with prejudice Brent’s

FTCA claim for failure to file the action within the statutory time limits. The

individual defendants then moved for summary judgment on Brent’s Bivens claims

based on qualified immunity. The district court granted the motion with regard to

Ashley, Pietri, Williams, Grim, Sanchez, Dellane, and Sanchez-Blair, and denied the

motion as to Ellis and Schor. This appeal followed.3

       We review de novo a district court’s ruling on summary judgment, applying the

same legal standards as the district court. See Whatley v. CNA Ins. Cos., 

, 1313 (11th Cir. 1999). Summary judgment is appropriate only when the

evidence before the court demonstrates that “there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

       3
           The district court’s rejection of a qualified immunity defense is a “final decision under
the collateral order doctrine over which this court has jurisdiction pursuant to 28 U.S.C. § 1291.”
Harris v. Board of Educ. of the City of Atlanta, 

, 594 (11th Cir. 1997). Further, the
district court certified its grant of summary judgment based on qualified immunity to Ashley,
Pietri, Williams, Grim, Dellane, and Sanchez-Blair, pursuant to Fed. R. Civ. P. 54(b). Thus, we
have jurisdiction to hear this interlocutory appeal.

                                                 6
56(c).

                                        DISCUSSION

         “A court evaluating a claim of qualified immunity must first determine whether

the plaintiff has alleged the deprivation of an actual constitutional right at all, and if

so, proceed to determine whether that right was clearly established at the time of the

alleged violation.” Wilson v. Layne, 

, 609 (1999) (internal quotations

omitted); see also McElligott v. Foley, 

, 1254 (11th Cir 1999) (“In

reviewing the district court’s [denial] of summary judgment, we must ‘first determine

whether the plaintiff has alleged the deprivation of an actual constitutional right at all,

and if so, proceed to determine whether that right was clearly established at the time

of the alleged violation.’”) (quoting Conn v. Gabbert, 

(1999)).4 Thus,

we address initially the question of whether Ellis and Schor’s actions violated Brent’s

constitutional rights.

1.       Was there a violation of Brent’s Fourth Amendment rights?

         Rather than viewing the initial stop, strip search and x-ray examination of Brent

as a single incident, the facts of this case compel that each progressive stage of the

search be viewed as a discrete occurrence. Accordingly, in determining whether Brent


         4
          As the Supreme Court explained in Wilson, “[d]eciding the constitutional question
before addressing the qualified immunity question . . . promotes clarity in the legal standards for
official conduct, to the benefit of both the officers and the general 

.

                                                 7
has met her burden to demonstrate the existence of a constitutional violation, we

examine the constitutionality of the initial stop, the strip search and the x-ray

examination separately.

      a.     Was the initial stop constitutional under the Fourth Amendment?

      During the initial stop of Brent, the customs agents isolated Brent from the

other passengers, asked her questions about the nature of her trip, and searched her

luggage. The decision to stop and search Brent was based upon the fact that she shook

her head in disapproval upon seeing the way customs agents were treating a co-

passenger. Brent argues that a simple expression of disapproval cannot provide

reasonable suspicion sufficient to justify the stop and search and thus the initial stop

is constitutionally infirm.

      We agree with Brent that her simple disapproving head movement is

insufficient to raise reasonable suspicion; however, the law is clear that “[r]outine

[border] searches of the persons and effects of entrants are not subject to any

requirement of reasonable suspicion, probable cause, or warrant . . .” United States

v. Montoya de Hernandez, 

, 538 (1985); see United States v. Vega-

Barvo, 

, 1345 (11th Cir. 1984). Because the initial stop did not

constitute more than a routine border search, Brent has failed to demonstrate that the

initial stop violated her Fourth Amendment rights.


                                           8
      b.     Was the strip search constitutional under the Fourth Amendment?

      The Supreme Court has held that “detention of a traveler at the border, beyond

the scope of routine customs search and inspection, is justified at its inception if

customs agents considering all the facts surrounding the traveler and her trip,

reasonably suspect that the traveler is smuggling contraband . . .” Montoya de

. Reasonable suspicion is “more than an inchoate and

unparticularized suspicion or hunch,” United States v. Sokolow, 

, 7 (1989)

(internal quotations omitted), and requires that officials have a “‘particularized and

objective basis for suspecting the particular person’ of . . . smuggling.” Montoya de

-42 (quoting United States v. Cortez, 

, 417

(1981)). “In most of these cases, the suspect was initially approached because [s]he

fit a drug courier profile. It is not the profile, however, but the factors which make up

the profile which are crucial to whether or not there is a reasonable suspicion. If the

profile is overly general, it carries little weight in this determination.” 

. Accordingly,

             [r]easonable suspicion to justify a strip search can only be
             met by a showing of articulable facts which are
             particularized as to the place to be searched. . . .

omitted) (emphasis added). Moreover, as a search progresses

from a stop, to a pat-down search, to a strip search, an agent must reevaluate whether


                                           9
reasonable suspicion to justify the next level of intrusion exists in light of the

information gained during the encounter. See, e.g., 

.

Under these Supreme Court and Eleventh Circuit standards, the strip search of Brent,

on the basis of the generalized and unparticularized reasons given in either the

contemporaneously filed search report forms or in the affidavits filed six years later,5

constitutes a Fourth Amendment violation.

       This Court has previously applied these standards6 in an analogous setting and

found that a strip search violated the Fourth Amendment. United States v. Afanador,

(5th Cir. 1978).7 In Afanador, customs officials, acting on an

informer’s tip, stopped two airline attendants arriving from Columbia, a known source

country, searched their luggage and, despite finding no contraband, proceeded to strip

       5
          Although their later affidavits essentially assert the same basic reasons for the search,
the affidavits frame these reasons slightly differently; to wit: (1) Brent fit a smuggling profile;
(2) Brent arrived from a known source country; (3) she showed disapproval of the treatment
Elbute was receiving; (4) her ticket had been purchased by a friend with a credit card from the
same travel agency where Elbute’s was purchased; (5) she, like Elbute, was going to Houston;
(6) she wore inexpensive clothes; and (7) she was nervous and became agitated when
confronted.
       6
           Although Afanador preceded Montoya de Hernandez by six years, Afandor’s holding is
not affected by the Supreme Court case. In Montoya de Hernandez, the Supreme Court resolved
a circuit split regarding the degree of suspicion -- reasonable suspicion, probable cause, or
something in between -- necessary to justify an invasive border search. The Supreme Court,
agreeing with the reasoning in Afanador, held that a invasive border search requires a showing of
reasonable suspicion. Montoya de 

.
       7
          In Bonner v. Prichard, 

, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

                                                 10
search them. 

The informer’s tip included the name of one of the airline

attendants, but was silent as to whether any other attendants were involved. The

government argued that the informer’s tip provided reasonable suspicion to justify the

strip search of the attendant named in the tip, and the fact that the attendant not named

in the tip fit a smuggling profile provided reasonable suspicion to strip search her.

The court rejected this argument stating that “‘a generalized suspicion of criminal

activity such as that which is fostered, for example, when one closely resembles a

‘smuggling profile’ will not normally in itself permit a reasonable conclusion that a

strip search should occur.’” 

further stated that while a smuggling

profile “may have its utility, . . . we cannot countenance its use to perform plastic

surgery disfiguring the Fourth Amendment.” 

n.6. The Former Fifth

Circuit then held that although the tip provided reasonable suspicion to strip search

the named attendant, “the fruitless search of [the unnamed attendant’s] luggage and

failure to elicit suspicious information on questioning, would, in these circumstances

preclude justification for a strip search.” 

.

      Here, similar to Afanador, Ellis and Schor based their decision to strip search

Brent upon the fact that Brent fit a general profile of arrival from a source country,

and she was nervous. However, in making this determination, they, like the agents in

Afanador, disregarded the fact that: (1) a non-intrusive search of Brent’s person and


                                           11
her luggage revealed nothing to support the suspicion that she was smuggling

narcotics; (2) Brent presented verifiable residence and employment information; and

(3) a check of Brent’s name in the Treasury Enforcement Computer System revealed

nothing suspicious. Under Afanador, upon these facts, the strip search of Brent was

unconstitutional.

      More recent cases further compel this conclusion. In Reid v. Georgia, 

(1980) (per curiam), a DEA agent stopped a traveler in the Atlanta Airport

because his characteristics and actions fit the “drug courier profile”: (1) the defendant

arrived from Fort Lauderdale, a city the agent knew to be a principal source of

cocaine; (2) he arrived early in the morning, when law enforcement activity is

diminished; (3) he and his companion appeared to be concealing the fact that the two

were traveling together; and (4) he and his companion had no luggage except for their

shoulder bags. 

The Supreme Court concluded that “the agent could not,

as a matter of law, have reasonably suspected the petitioner of criminal activity on the

basis of these observed circumstances.” 

The only fact that related to the

individuals’ conduct, the Court found, was that the defendant preceded his companion

and occasionally looked backward at him.            The Court found that the other

circumstances, including arrival from a source location, describe a large number of

“presumably innocent travelers, who would be subject to virtually random seizures


                                           12
were the Court to conclude that as little foundation as there was in this case could

justify a seizure.” Id.; see also United States v. Grant, 

, 386 (6th Cir.

1991) (holding that arrival from a source location does not provide reasonable

suspicion because “[o]ur experience with DEA agent testimony in other cases makes

us wonder whether there exists any city in the country which a DEA agent will not

characterize as either a major narcotics distribution center or a city through which

drug couriers pass on their way to a major narcotics distribution center”).

       In this case, the facts known to Ellis and Schor were far less suspicious than the

ones found insufficient as a matter of law by the Supreme Court in Reid. Even in

combination, the articulated characteristics here could be ascribed generally to a great

number of innocent travelers. Indeed, the only fact that relates to Brent’s conduct is

that she was nervous. However, this general observation of Brent’s nervousness,

standing alone, cannot provide “reasonable suspicion” to justify the strip search.8 See

United States v. Tapia, 

, 1371 (11th Cir. 1990) (holding that no

reasonable suspicion existed to support detention when suspect appeared visibly


       8
         We note, as did the district court, that courts should be cautious in deferring to
subjective determinations by even trained inspectors. In this case, Schor stated that he suspected
Brent was a drug smuggler because she appeared nervous and agitated when questioned. In a
previous case, however, Schor testified that he suspected an individual was a drug smuggler
because the individual was “fairly deadpan,” expressionless, without visible signs of agitation
and did not protest being singled out for questioning. See United States v. Rivera, 

, 1568 (11th Cir. 1991). If either a nervous or calm reaction to questioning can, by itself,
support a finding of reasonable suspicion, an inspector could justify a search of anyone.

                                                13
nervous during confrontation with officers, and had few pieces of luggage); accord

United States v. White, 

, 1417 (8th Cir. 1989) (finding insufficient

evidence to support reasonable suspicion for stop where defendant bought airline

ticket with cash, arrived on flight known to be used by narcotics traffickers, and acted

nervous and suspicious in the airport); 

(“[n]ervousness is

entirely consistent with innocent behavior, especially at an airport where a traveler

may be anticipating a long-awaited rendezvous with friends or family”) (citing United

States v. Andrews, 

, 566 (6th Cir. 1979)); see also United States v.

Barron-Cabrera, 

, 1461 (10th Cir. 1997) (holding that “‘[w]hile a

person’s nervous behavior may be relevant, we are wary of the objective suspicion

supplied by generic claims that a Defendant was nervous or exhibited nervous

behavior after being confronted by law enforcement officials. . . .’”) (quoting United

States v. Peters, 

, 1521 (10th Cir. 1993)); United States v. Wood, 

, 948 (10th Cir. 1997) (“nervousness is of limited significance in determining

reasonable suspicion and that the government’s repetitive reliance on . . . nervousness

. . . as a basis for reasonable suspicion . . . ‘must be treated with caution.’”) (quoting

United States v. Fernandez, 

, 879 (10th Cir.1994)); United States v. Black,

, 136-37 (7th Cir. 1982) (holding that, although the totality of

circumstances supported reasonable suspicion, it was not enough merely that the


                                           14
passenger had arrived from Fort Lauderdale, was the first off the plane, deplaned

speedily and in a disoriented state, and appeared nervous). The initial stop and

questioning of Brent, with the attendant search of her luggage, failed to produce

particularized and objective evidence that would raise reasonable suspicion that she

was a drug courier. Accordingly, we conclude that the strip search of Brent violated

the Fourth Amendment.

      c.     Was the x-ray examination constitutional under the Fourth Amendment?

      In United States v. Pino, 

, 1359 (11th Cir. 1984), we recognized

that the “the amount of [reasonable] suspicion needed for an x-ray [is] . . . the same

amount needed for a strip search.” (citing 

). The agents

listed the same reasons for conducting the x-ray examination as they did for

conducting the strip search. As discussed above, these types of general observations,

without more, can never give rise to reasonable suspicion sufficient to justify an

intrusive search such as an x-ray examination. Moreover, the unconstitutionality of

the x-ray examination is more apparent than the strip search, because at the time of the

x-ray, in addition to the significant exculpatory factors of which they had knowledge

prior to strip search, Ellis and Schor were also aware that Brent’s urine had no traces

of contraband and that the strip search revealed nothing to suggest that Brent was

carrying drugs internally. Accordingly, we conclude that the x-ray examination of


                                          15
Brent also violated the Fourth Amendment.

2.     Are Ellis and Schor entitled to qualified immunity?

       Having determined that the strip search and x-ray violated the Fourth

Amendment, we turn to examine whether Ellis and Schor can be held personally liable

for their actions.9 Our cases hold that a law enforcement officer who conducts an

unconstitutional search based upon a reasonable but mistaken conclusion that

reasonable suspicion exists is entitled to qualified immunity. 

. Thus, “[w]hen an officer asserts qualified immunity, the issue is not whether

reasonable suspicion existed in fact, but whether the officer has ‘arguable’ reasonable

suspicion.” Id.; see also Williamson v. Mills, 

, 157 (11th Cir. 1995);

Swint v. The City of Wadley, Alabama, 

, 996 (11th Cir. 1995); Post v.

City of Fort Lauderdale, 

, 1558 (11th Cir. 1993). In determining whether

Ellis and Schor had “arguable reasonable suspicion” to justify the strip search and x-

ray examination, we analyze whether “a reasonable officer could have believed that

the search[es] comported with the Fourth Amendment.” 

.

This inquiry ensures that law enforcement officials “‘reasonably can anticipate when

their conduct may give rise to liability.’” United States v. Lanier, 

, 271



       9
      Because we have concluded that the initial stop and search did not violate the Fourth
Amendment, there is no need to consider qualified immunity as to the initial stop.

                                             16
(1997) (quoting Davis v. Scherer, 

, 195 (1984)).10 With these standards

in mind, we now consider whether Ellis and Schor had “arguable reasonable

suspicion” to support either the strip search or x-ray examination.

       a.      Was there “arguable reasonable suspicion” for the strip search?

       In 1978, well before the strip search of Brent, our precedent clearly established

that even if Brent fit a drug courier profile, the “fruitless search of [her] luggage and

the failure to elicit suspicious information [from her] on questioning would . . .

preclude . . . justification for a strip search.” 

. Moreover,

at the time of the incident, Supreme Court precedent had made clear that a law

enforcement official must have “reasonable suspicion” to justify any stop at the border

beyond a routine non-intrusive search. Montoya de 

. The

Supreme Court had held that reasonable suspicion must be based upon “more than an

inchoate and unparticularized suspicion or hunch,” Sokolow, 490 U.S. at 7(internal

quotations omitted), but rather, requires “particularized and objective” facts. Montoya

de 

; see also 

; Pino, 729


       10
           In Lanier, the Supreme Court reenforced the “fair warning” standard and held that
“general statements of the law are not inherently incapable of giving fair and clear warning . . . a
general constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question, even though ‘the very action in question has [not] previously
been held 

(quoting 

). See also Priester v.
City of Riviera Beach, 

, 926 (11th Cir. 2000) (holding that official not entitled to
qualified immunity when “conduct lies so obviously at the very core of what the Fourth
Amendment 

.

      Moreover, the Eleventh Circuit, as well as several other circuits, had clearly

defined the degree of reasonable suspicion standard required to justify a strip search

at a border, holding that “reasonable suspicion to justify a strip search can only be met

by a showing of articulable facts which are particularized as to the place to be

searched.” 

(emphasis added); see also United States

v. Yakubu, 

(7th Cir. 1991); United States v. Oyekan, 

(8th

Cir. 1986); United States v. Ogberaha, 

(2d Cir. 1985). This standard

unambiguously established that the facts an officer relies upon in justifying a strip

search must be (1) particularized to the place to be searched, and (2) sufficient to raise

reasonable suspicion. 

. Here, the two factors Ellis and

Schor relied upon in justifying the search -- Brent’s arrival from a source location and

her nervousness -- were not particularized to the place to be searched and had been

expressly rejected by the Supreme Court and the Eleventh Circuit as factors that,

standing alone, give rise to reasonable suspicion.

      Indeed, arrival from a source location and nervousness are paradigmatic

examples of the non-particularized, overly general profile which this Court made clear

can never support a finding of reasonable suspicion to justify a strip search. See

. Moreover, at the time of the search, Supreme Court


                                           18
and circuit precedent expressly rejected the proposition that a general courier profile,

without more, provides reasonable suspicion. See 

; 

; see also, 

; 

; 

; 

. In Reid, the Supreme Court considered

and rejected the argument that arrival from a source location could ever, by itself,

provide reasonable 

. Similarly, in Tapia, the Eleventh

Circuit considered and rejected the argument that being nervous when confronted by

a law enforcement official provides reasonable 

(“being

a Mexican, having few pieces of luggage, being visibly nervous or shaken during a

confrontation with a [law enforcement official], or traveling on the interstate with [out

of state] licence plates do not provide a minimal, particularized basis for a conclusion

of reasonable suspicion”); see also 

; 

;

; 

; 

.



       Accordingly, the facts upon which Ellis and Schor based their decision to

search Brent are not only unparticualrized, but also were explicitly rejected as grounds

for reasonable suspicion by the Supreme Court and the Eleventh Circuit. 

; 

. Moreover, as noted earlier, our precedent had

established that even if Brent fit a courier profile, the “fruitless search of [her] luggage


                                            19
and the failure to elicit suspicious information [from her] on questioning would . . .

preclude . . . justification for a strip search.” 

. Based upon

the foregoing, we conclude that a reasonable customs agent at the time of the incident

would have known that a strip search under the facts of this case was a violation of

Brent’s Fourth Amendment rights. Thus, Ellis and Schor did not have “arguable

reasonable suspicion” to support the strip search and are not entitled to qualified

immunity from liability arising from their alleged unconstitutional conduct.

      b.     Was there “arguable reasonable suspicion” for the x-ray examination?

      As noted above, by the time of the incident            the Eleventh Circuit had

established that “the amount of [reasonable] suspicion needed for an x-ray [is] . . . the

same amount needed for a strip search.” 

. Here, as with the

strip search, the only undisputed reasons for the x-ray examination are Brent’s

nervousness and her arrival from a source location. For the reasons stated above,

these factors not only fail to raise reasonable suspicion to justify the x-ray

examination, but also fail to raise even “arguable reasonable suspicion.” Based on the

foregoing, we conclude that because a reasonable customs agent would have

understood that the x-ray examination, based only upon an observation of nervousness

and a general profile, violated Brent’s constitutional rights, there was not “arguable

reasonable suspicion” to support the x-ray examination, and therefore Ellis and Schor


                                           20
are not protected by qualified immunity from civil liability arising from the x-ray

examination.11

3.     Are Ellis and Schor’s subordinates protected by qualified immunity?

       The district court determined that only Schor and Ellis made decisions to

conduct the intrusive searches of Brent, and that Ashley, Pietri, Williams, Grim,

Dellane, and Sanchez-Blair had no discretionary authority and no reason to suspect

that Brent’s constitutional rights were being violated. Accordingly, the district court

concluded that Ashley, Pietri, Williams, Grim, Dellane, and Sanchez-Blair acted

reasonably in following Ellis and Schor’s orders and that qualified immunity shielded

them from civil liability.

       On appeal, Brent argues that whether a government agent is acting in a

supervisory role is not determinative of Bivens liability and that following orders does

not immunize government agents from civil rights liability. While we agree with

Brent’s general summary of the law, we do not agree that the district court erred in

granting summary judgment in favor of Ashley, Pietri, Williams, Grim, Dellane, and

Sanchez-Blair.


       11
           Ellis and Schor also argue that summary judgment is appropriate in this case for a
reason not raised in the district court. Because the issue was not raised in the district court, we
decline to review it here. See Narey v. Dean, 

, 1526 (11th Cir. 1994) (stating that
“‘appellate courts generally will not consider an issue or theory that was not raised in the district
court.’”) (quoting FDIC v. Verex Assurance, Inc., 

, 395 (11th Cir. 1993)).

                                                 21
      In Hartfield v. LeMacks, 

(11th Cir. 1995), we held that, although

a deputy sheriff who failed to make a reasonable effort to identify the proper residence

to be searched was not entitled to qualified immunity on a civil rights claim, see 

the officers who accompanied the deputy on the search were protected by

qualified immunity because “nothing in the record indicate[d] that these officers acted

unreasonably in following [the deputy’s] lead, or that they knew or should have

known that their conduct might result in a violation of the [plaintiff’s] rights.” 

Here, the record is devoid of any evidence that would support the conclusion

that Ashley, Pietri, Williams, Grim, Dellane, and Sanchez-Blair acted unreasonably.



      The record reflects that Grim merely inspected Elbute and had no contact with

Brent. Pietri, under orders of Schor, asked Brent a few routine questions, obtained her

documents and walked her to the secondary examination area. Dellane, on orders of

Schor and Ellis, witnessed the strip search, traveled with Brent to the hospital, and

returned with her to the airport. Ashley, on orders of Schor and Ellis, witnessed the

strip search. Williams, on orders of Schor and Ellis, took Brent to the x-ray room, and

arranged her return to the airport. Sanchez-Blair, at the direction of Schor and Ellis,

conducted the strip search. Each of these individuals acted at the order of a superior

and the record reflects no reason why any of them should question the validity of that


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order. We, therefore, affirm the district court’s grant of qualified immunity to Ashley,

Pietri, Williams, Grim, Dellane, and Sanchez-Blair.

      For all of the above reasons, the rulings of the district court are

      AFFIRMED.




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