with his then girlfriend as a result he was arrested and charged with three counts two felonies related to criminal mischief one charge of harassment of violation the only charge that he eventually pled guilty to and the only charge that resulted in a conviction from that day and a charge of criminal possession of a controlled substance in the seventh degree a misdemeanor the only drug charge raised that day as a result however he was brought to the police barracks and subjected to an invasive strip search and visual body cavity exam without any individual i suspicion justifying the exam that was a violation of his fourth amendment rights and the decision of the district court below to grant summary judgment and dismiss his one thousand nine hundred three case was in error this is so your honour's well out so i have a question yes yes honor what about the drugs that were found in the car why is that why is it so questionable i don't understand why were they entered into evidence well i don't know why they weren't entered into evidence your honor  mr slowly contends because they didn't exist there is there are conclusory statements in the affidavit of eric than bammer the officer who says that he saw the drugs in the car  that they were located that he conducted a test and that they were filed appropriately but not withstanding mr slowly statement said his deposition multiple times upon questioning from counsel for state that he had asked to see the drugs that he was never shown the drugs that at times when he asked he was told they were so small you couldn't see there was no evidence other than to conclusion repair graphs in the affidavit the testimony of the creature on four feet i'm sorry the dog well the dog i think you your honor respectfully is an argument in favor of mr slowly for several reasons first the dog apparently alerted outside the vehicle three times on the two or maybe two times and i think in the rear outside the vehicle and then when  alerted inside the vehicle it was not in the location of the officer claims to have seen the drugs in the center console i want to see exactly so apparently the officer is better at finding the drugs than the dog with eyes than the dog's nose the why doesn't make the cops suspicious well your honor again we only have the testimony of the officer without any proof beyond it so if the drugs were found the best evidence would have been the drugs themselves not the officers statement about the best evidence but the question is there's suspicion when a dog alerts to a spot inches from where the man is guilty i suspect there might be suspicion that there might be drugs my understanding is these dogs are not completely accurate in what they find there might be a suspicion there might be drugs in the vicinity yes or on i would agree that there could be some suspicion from that but it's an it's a statement i think given mr slowly uncontested statements that he didn't believe there were drugs in the car that he had had possession of that car for several days and negative suspicion arising from other and it we're not having a trial we're just saying did the police officer houses well but but your honor that's what i think is to the jury whether or not the officer legitimately had a suspicion and to follow the lawfulness of the inspection of the cavity well i think my client your honor respectfully believes that the officers were not being fully truthful in what they say they found a thing that for the jury and saying that is for the jury your honor when you have  the jury would be instructed on what the law is as an up to decide what whether the surge is reasonable first in order to know whether the product of the search goes with your well your honor i think here the question is whether or not it was going this is not the criminal case this is the one thousand nine hundred three case and the question is whether or not these officers were entitled to qualified immunity and whether or not the search was reasonable and i think there's a factual dispute which i will add as long as we're on the dog relates to the fact that the dog was then brought to my client in a small room and i think it is uncontested did not alert now that either is because the dog was close enough to him and did not smell drugs and therefore that's a fact in his favor or he wasn't brought close enough to him and that was an error on the officers part because they should have done that given they had the dog before they brought him into another room and conducted a visual cavity search of him s that your honor but the dog was brought to the vicinity of the plaintiff then the individual in custody in the room and if you want to believe the officers both version of the facts and deductions taken from them you have  the crumbs of the crack or the cocaine on the seat of the of the vehicle apparently my client sitting on that seat and yet a dog brought near him and not reacting in any way to that clothing or they didn't test it either way it's a problem for the officers and instead they just proceeded to have him remove his clothing one piece at a time when that didn't work and they didn't find anything in it they had him conduct a visual cavity exam which truly is about as invasive an exam as one can conduct on somebody who's been arrested short of an actual physical touching which did not occur here and so the dog jacobs which you raise is i don't want to use cliches but it is the dog that didn't bark when it was brought in front of my client you know that it seems to me that gonzales is a is is a problem for you and might be an insurmountable but it's only a problem if the defendant are arguing that the standard of suspicion for a felony is less than for a misdemeanor and i see a footnote here on page seven of the district court's opinion sa defendants do not assert that a less demanding standard should apply because stanley was also arrested for a felony that's footnote four yes your honor and my current that the defendants i'm not arguing for the distinction that was decisive in gonzales i will certainly let them raise their own points here before this court but i don't believe they argued it below your honor and so i don't believe they can argue it here but i will also just to briefly address consolidate and then i'll  if it is well here's why i do not actually believe even where they'd argue that we have a higher standard on a felony that gonzales has a problem first in going is all this this court represent recognize the long line of cases of the second circuit going back at least as far as one thousand eight hundred six in weber that the at least for mr manners or other minor offenses you still need the individual i standard to be established i submit to you and it's why i began by reading of the charges the only drug charge we had here was a mr meaner we have completely unrelated felony charges that never went anywhere stemming from a domestic dispute that have nothing to do with drugs and so i would argue that weber is what would control the standard here regardless of what position defendants take and second i would say that gonzales was decided in the context of of hall and looking at hall and considering hall pooler as to what was right what is behind the decision but i will note that the court did note the timeline and here the timeline is whole coming five years before the incident and so even if i do need to argue that i need to win under a felony standard the felony standard i would point to is hall but you're not arguing that you need to win under a felony standard i don't believe any twenty or felony standard you're willing to argue with but you don't need to i don't need to i think both for footnote four that you pointed out of the district court and what comes behind it and how we got there and also your honor because i don't think this case involved a felony drug charge one point made in the solace is that one reason you might have a different standard for felony drug charges is that they involve allegations of drug dealing what ever you think was going on in that car with the little cracks of little dust of cocaine there's no suggestion here that this was a drug dealer dealing drugs out of this car honor he had been convicted is precisely sixteen and seventeen years earlier and so if the law is that once convicted almost two decades earlier you're automatically subject to an anal cavity search i just don't think that's the law and as you say good morning your honour's if i could begin with a qualified immunity point because that's where we left off the state is arguing or defendants are arguing that the law is unsettled as of gonzalez says to the difference between misdemeanors and felonies and that's why i'm looking at this footnote which i noticed very late in in my preparation the case says defendants do not assert that a less demanding standard should apply because  also arrested for a felony well in our brief we have in our briefs throughout the district court and here we're assuming for the sake of argument that that standard would apply and i think it's important to note that for qualified immunity  assuming for the sake of for the sake of argument meaning i take it for the for the sake of argument in this case yes your honor you're assuming for the sake of argument in this case you are not arguing for a different standard well your hon where highlighting what we believe to be a common sense position that if the standard hasn't been settled we haven't violated a clearly established standard that has been settled with respect to mr minutes with respect to mr meehan int's but this crime also well if there's a felony for something that won't be investigated cavity search and what difference your honor our point is that the laws unclear recognizing that distinction but i really don't want to believe the labor the point because this is only one half of the qualified immunity analysis assumed that there's a rule that reasonable suspicion is required for this kind of  point either when you that's where you started yes your honor so so if i could say again to my next point it is that there is arguable reasonable suspicion here because erik van bramer had no clear law saying that the circumstances available to him gave him no reasonable suspicion to conduct a visual cavity search as a misdemeanor as to a misdemeanor now you heard my adversary say that he should have put the dog by mr slowly and conduct a dog sniff this court has never said so this court has never ruled that in a situation where a police officer recovers an amount of drugs from a suspected drug dealer and a canine alert indicates that there could be more drugs that a visual cavity searches on lawful mr slowly argues that the canine alert in the center console seems to indicate that there were no drugs we would point to two cases that we but this was not his car this was his mother's car that's correct your honor and but what erik van bramer knows at the time is that slowly is driving the car that the drugs are found in the crease of the driver's seat he doesn't have any reason to recognize time and again is sufficient for summary judgment his version of the facts that he goes to the car he finds crumbs he says that he field tests them he details how he performs the field test and then he indicates that he collects the drugs gives them to brian van bramer brian van bramer isn't there for the search but he at least corroborates that evidence represented to be cocaine was given to him that he then puts into the evidence locker mr slowly disputes the facts of that he says i don't do drugs and nothing on his clothing indicated that there were any trace of drugs why isn't that a question of fact that u summary judgment your honor the presence of drugs on his clothing would not obviate whether or not mr van bramer recovered i'm sorry i didn't hear you it was sitting in the very c that should prevent the granting of summary judgment well your honor there's two answers to this question one the fact that he's checking clothes and doesn't find drugs doesn't make it improbable or doesn't dispute that there were drugs recovered in the first place that would go to whether there was reasonable suspicion and two if he doesn't see a drug residue on mr slow these clothes this court has never held that you need to then stop and can proceed to conduct a visual cavity search erik van bramer has no guidance on that point now mr slowly is theory doesn't even require corroboration he's simply stating and conclusory fashion that if i could direct this court to all of this seems rather thin but my impression is that is that the defendants relied for their individual i suspicion  on the statement by the plaintiff's girlfriend that he had and he had drugs but she denies that now and that's and not only that she denies that she told that to the police so it would appear that one of the major props that would otherwise support individualized suspicion is now an issue of fact your honor the that would be that would be for a jury and  don't get qualified immunity now and later it's determined that she told this to the police maybe they would have an individual i suspicioned then and you get qualified immunity then you your honor that would be relevant to why  to the car in the first place this is a civil case there is no fruit of the poisonous tree here the district court address ms rolland statement and found it to be immaterial what we're looking at comes after the search happened and after the search happened eric van bramer finds a substance that tests positive for drugs in plain view erik van bremer has a canine sniff in an area in the car that doesn't turn up drugs signifying that there might have been drugs  bramer has information from other people that mr slowly is associated with drug dealing it seems you have to defend the idea that any time trace amounts of drugs are found in the car that there could be my warrants amounts of drugs and so you recover the trace amounts of drugs what else is there the canine alert signifying that there could be more the reputation as a drug dealer any more they didn't find any more after the fact but the canine alert indicates the canine is positively alerting there aren't any drugs recovered officer when in his experience hundreds were called to the seat there were drugs recovered from the  alerted in the center console from which no drugs were recovered eric van bramer having recovered the trace amount of drugs in the seat and having that canine alert is certainly entitled to deduce that there could be more drugs he has reason to believe that maximilian slowly who he knows by reputation as a drug dealer there is a confirmed history of selling cocaine the very substance in the car and he knows that he's fleeing from a crime scene all of these slowly is not describing a targeted canine search and frankly we were not we were not confronted with this allegation otherwise at the district court level we would have produced more facts indicating exactly how canine searches work dogs don't simply start barking whenever they're in the presence of drugs otherwise they so this is summary judgment if you had more facts you were supposed to produce them before the district court well  if that you want to produce just for us your honor we would argue the exact opposite which is that we were confronted with an argument that the dog didn't alert as that being something that doesn't support reasonable suspicion had to we've been confronted with that we would have produced those facts so if you don't want me to describe the drug searches i will cease to do that and i will give the additional point that there is no clearly established law from this court that says that if you have a canine dog you have to walk it up to a suspect have that dog sniff now if that if the court wants to clarify that this is the rule the court is certainly welcome to do so we don't oppose that however eric van bramer was not under any binding legal obligation to do so i would direct this court's attention to page one sixty two of the consolidated decision which gives an explication about qualified immunity eric van bramer is acting in good faith confronted with facts that indicate to him in real time making his snap decisions that he has a basis for the search he is working within the legal framework means that very factual very can have a tremendous effect can change the whole perspective but you still need a huge need something to justify the body cavity searches opposed to just the search of the car and just the the the strip search your honor we have listed out those factors they are the recovery of the drugs combined with the canine alerts of commences strip search arguably and the question is what is there that would cause someone to go i mean just the fact that you don't find any drugs is not a basis for suspicion but i mean usually most people would consider if you don't find any drugs that's a basis for losing your suspicion that you went to jane in the first place your honor it's not simply that he didn't find drugs in a vacuum it is that the canine positively alerted in the place where there were no drugs found it indicates that drugs had recently been there a police officer is entitle to infer that drugs had recently been there they're not there and combined with the other isn't titled under the reasonable suspicion standard or at least the arguable reasonable suspicion standard to believe that slowly was hiding them either on his person or in his person thank you  your honor i think it might be useful to walk through exactly what the the elements are that i believe defendant's claim gave justification here to a visual cavity search in a strip search  there is the alleged statement of ms rollins but that statement is now contradicted so that needs to be a fact question there are the statements that there were long ago convictions and i do not believe the law says that somebody who was convicted almost two decades ago of something is permanently under suspicion for continuing to carry out that activity there is the again conclusory allegation of rumors in the community that mr slowly had involvement in drugs but the only actual testimony direct on that comes from the stir slowly who on page ninety nine of his deposition states that he'd never been in trouble in that county before so i don't know what those rumors are based on but it may be at most again it is a factual issue there is the dog which i think is now full of factual issues as to what the dog did what it smelled where it alerted how close it was to mr slowly and others are you saying whether the dog alerted at the console is in dispute i'm saying that we have the statement of one officer who observed it if to take judge jacob's words the dog's infallible that means there were drugs there and we have the contradictory testimony from my client that there were no drugs there in that respect it was in dispute but since it was only the dog and the one trooper it's hard to we can't go back in time and say what the trooper saw we can judge the conclusions the trooper made and go back in time to reconstruct the scene  if you are saying it's in dispute whether the dog that needs the jazz if you go to a jury to see do they believe the officer well that is what i'm saying your honor because you are disputing whether the dog alerted  consul your honor i think it probably goes into whether the dog alerted combined with how infallible these dogs are and so what would be a reasonable conclusion b if you believe the officer is telling the truth does that also lead to a conclusion that there were drugs for example on the side of the car where the dog also allegedly alerted which i don't understand pressing you about how reliable the dog is because i think an officer is and to think the dog is liable i'm crossing you as to whether it's in dispute that the dog did alert at the consul i think my client's view is that there were no drugs in the car and therefore it was impossible for the dog to legitimate honor you're saying there's no individualize suspicion supporting the strip search either that is correct your honor and i think it's i think what is in the law and it's in the mr mueller cases and the felony cases is you need to pro here with with deliberateness and care and if you believe for example there was powder on the seat and the gentleman sat in the seat you could start with the pants and either they didn't start with the pants or they didn't they didn't find anything but the idea but they're not finding something says i need to look harder that's that's not what the law is in these circumstances are there be never and the looking i'm still not clear what you said to the district judge in opposition to dispute a whether the dog alerted at the console and the whether any even trace amounts of drugs were found in the scene the statement submitted by my client who was at that point pro se is a handwritten statement that the district court considered under the standards you know affable and pro se cases he has one paragraph it's in document forty six paragraph one where he generally speaks it may not have been what he would have written if he had assistance of counsel the state police made a false statement claiming they observed drugs in the driver's seat but supposedly they have no physical evidence of such findings where the drugs why wasn't there any  ever any proof of such findings that's what he said but he also had on the record his deposition testimony which does not speak to what happened in the car he wasn't there but does speak on page eighty five to the dog being in the room with him and not alerting and in part that said did you ever ask to see the narcotics my clients answered yes you did yes who did you asked the cops the troopers when did you do that in the barracks and so you said show me the drugs i said what drugs where is it he said it's too small to see it's crumbs it's too small and there is also a section in the transcript and i'll conclude with this if there are no other questions about his encounter with the dog and in part this is on page sixty three it's document forty one in the record but at some point the other friend bram or walks in with a canine to the canine walks right past me like i'm not even there he doesn't even acknowledge me and then it's a questions as to which man bremmer he's talking about so there is not testimony and there's not specific mention of the dog in the car but there is this broad