after the other side did not file a response to your request for admissions and my guess is they would say because there were some kind of discussions taking place at that point w discussions fell through very shortly after the time period elapsed they asked the court to allow them to file late the court granted it we have we normally tried i mean in this circuit especially we try to get the merits and i don't see any great prejudice to your side for a few days the way i don't think that's an argument that really flies with us you're out of the reason i was raised in that particular it was because of the same judge in a different case occurring at the same time as a swan where i was on the defense side i tried to amend an answer to allow in the stop of the facts the amendment was the was merely presenting the judge back with in this situation you would not allow me to amend an answer to add something i couldn't the pledge didn't answer because we didn't know from the sky every so really you know why didn't argue it so much here about that is because it was more something ongoing with that particular district court judge up here the argument was preserved only to show that you know the fact that this the fact that settlement with the city falls apart there's not really established it costs and really that's why i didn't want to focus on that because speaking with my counterpart we kind of looked at this being a new issue this needs issue which this court really only wasn't talked about by the district court and there was no cross appeals i don't really believe where you can get there however here you've got a complaint to the police department about somebody in effect taking money from  on the street and the department would you agree to the party needs to investigate that they do and that's the special needs situation the supreme court talk about i talked about that in skinner a connor and the searches supposed to be done and then and as we know from the ashcroft supreme court we know from a con the supreme court case we know from skinner the supreme court case and we know from the ontario case the supreme court case they talked about these weren't list the police as it does the civilians and their directive their standards and that's what the supreme court is saying is when you look at these warrantless special needs situation you've got to look at the standards of the employer because if the employer doesn't apple it's a probable cause standard and not a reasonable standard which is what the district court said below i'm applying a reasonable standard or here there was a specific but visit there a standard a bit different here why don't we just adopt with the seventh circuit did professionals in dealing with their respective personnel all right and in this particular case the specific way that the police department had decided how it was going to deal with these types of allegations was to have without a drivel and the facts of that case are almost identical to case we have here they are and they also looked and i thought that other matters which we looked at the seizures itself as to whether it was reasonable or not and they said we'd kind of look courts to determine whether or not the dribble test could be met in this particular case they said they were concerned with whether or not they also was allowed to go to the bathroom alone or not whether it's being washed in this particular you don't  want to go to the bathroom alone because it defeats the whole purpose of having their cool having them cool their heels while you're waiting for internal affairs but isn't it isn't it true that in this case the police were acting in their capacity as employer rather than as law enforcement officers know that that's not correct be the next part of my argument because they can see in the positions that it was an i p investigation but then again this was turned over them but it was not  yes there was and i would represented beyond what was necessary given the facts that were presented because it's beyond the scope because it first thing you have to do is you have to look to see whether or not they actually believe they were going to find something and consistent to all of the defendant's testimony was they never believed they were going to fight find any money because i didn't believe they ever took it so the reasonable this is the search is it is a fact issue if you didn't believe you find it and you didn't believe they took it why are you telling them to empty their pockets lift their pants well if you have to go through all that for their own protection you've got it you've got to demonstrate to the putative plaintiff is going to sue the police department for stealing his money that he was wrong he drew a false accusation if you don't do the the investigation to to demonstrate that the officers didn't have the money on their person then you've got a live case against the officers brought by those who cla if there's a if there's a question is whether the quote search that they did was what was resolved it's hurting the complaint that they received how was the search that they needed to refute or to verify the complaint yes and they found out late first quarter them in and to remain there and didn't tell them until the surface about the start why they were even there the testimony and following the trouble cases and the fo supreme court cases you don't get past the warrantless search area and into the special needs unless you can fit into the standards and the first thing you look at the first thing you look to before you get to the search i is there a standard if there's a standard we're going to look at the reasonable disappears no standard in terms of that with a probable cause and ashcroft ashcroft in two thousand and twelve repeated that but in terms of getting to that standard the issue that we have here is answer there's no case that i see really on your side here that says that within that context there is you have to have deference to the internal procedures of the police and we don't have any problems with the internal procedures because the case law all the cases say that if you have a procedure and you follow it we're going to look at a reasonable standard and we had a procedure and they admit they didn't follow it and the supreme court has supreme court ashcroft case in two thousand and twelve sat if you don't follow your own standards essentially you're back to the probable cause standard well anonymous look we can't conclude we agree with you if they were to follow the standard that ashcroft two thousand and ten a few thousand and twelve they don't i don't think that's a whole heap of cases that if they don't follow the standard then we're more into the open question as to what they what they did and whether it was beyond what was that sorry for what it was something was necessary and if they did something that was beyond what was necessary to do refute or to verify a complaint then you're in fourth and then perjury so the question here is what did they do to the gentleman beyond the tiny them telling of their pockets the socks and so forth what they do which was beyond the scope of of of trying the courts said if you have a standard you gotta follow if you don't it's a higher standard on the fourth amendment they have a standard they admit they didn't do it so one of the higher standard i agree there is a special needs of souls and the special needs but if it's going to fall on the special needs of the fourth amendment you have to follow the tests otherwise you have to go back to the fourth amendment and even ashcroft in two thousand and twelve a public employee case he said public employees by the very virtual being government employees do not give up their fourth amendment protections the special needs situations falls into two categories safety which is the skinner case which which is similar to the model case that this court dealt with was just like testing for further you've got somebody well i guess you had mr vargas and his brother his brother also call in were they speak with his brother some point and i know that i believe that they that they called the f b i and i believe that the mother at some point or the aunt and also called and someone had called the f b i as well and someone had called i mean someone had called the f b i and but the bay that the basic report was all the same this artist had accused officer constitute a show of authority with respect to a seizure because the question is not whether you feared your job loss and you didn't lee because you feared the job loss arising out of your voluntary relationship with your employer rather the question is whether you were so you somehow feared being that you were you thought that you would fit the physically prevented from leaving the room either there was a show of authority that caused you to reasonably the lee that you would be physically prevented from leaving the room is a question of fact that a jury should resolve they claim they were not allowed to leave you so they were under arrest you say that they were being detained for employer there's asian that there had been a complaint that they were trying to check out isn't a question of fact as to whether objective lete they had the reason to believe that they were under arrest or and your claim that they were really being detained from a proper employment check i have two answers on that point  are only subjective testimony and that point is they believe that they were ordered to that is that they believe that they were that they were instructed to stay there and how i arrived and that those were instructions from their superior officers and so it all relates to the employment relationship and i believe there's any testimony that they were under arrest or that they would be physically prevented from leaving i believe that they had orders and it's and if if there is testimony in the record somewhere that they thought that they would be physically prevented from leaving i'm not aware of that testimony and even if there is such testimony that that that belief wasn't reasonable and her dream will and u the published position is the search was not reasonable much you you you fail to follow the directive that was set up for this type of thing then you're no longer that's then you're you've abandoned reasonable this and you've gone into a fourth amendment search where you fail to use the directive that you set up to do this very thing i don't agree with his position i'll just count and i agree with you there's a ton of law that states that our failure of all our internal directives doesn't the special needs doctrine applies in these cases because we should have deference deference applies tenfold and in a police case i believe where we're trying to balance our bright to investigate police misconduct and i would invite the court's attention to the be in a case that specifically says there is a right to for the police to investigate accusations of citizen misconduct and we're balancing that against police rights and where there's an investigate and investigation of police misconduct or an internal investigation of workplace misconduct as a connor would say as opposed to a criminal investigation we get some leeway and while police don't have water down constitutional rights we get a little bit of leeway when we're doing an internal investigation we send police out there with guns and badges and we ask citizens to submit to their authority as mr artist it and therefore they have to give a little bit of leeway in being a case is all about that and that's why in the end i think the police department got a little bit of leeway when they had a police lineup with sixty two officers some of whom or and were suspected of misconduct and some of whom aren't and that's this that that the reason that you do things like a company people to the bathroom and ask people to turn off their cell phones is not to convey to them that they're detainees but it's for security purposes you don't want them getting their stories straight you don't want them hiding the evidence things like that it's not to convey to them that they're detainees and if you look at the totality of circumstances in this case you simply cannot infer from the circumstances that we were conveying the message that they were going to be physically prevent him from leaving no one showed their weapons here they were sitting in an office they were in an interrogation room and they weren't threatened with arrest the doors were of the office weren't locked they kept their guns in their badges they were invited to watch television they were doctrine because it was it was the two it was only the two officers who were suspected and i cited the cases where personal effects were searched and there wasn't even individual us especially suspicion in those cases which are circuit cases and in i believe it's understated that they told the officers if you show me now that you don't have the money before you leave the sane it will go well for you and in fact that's what happened they said and then they didn't they said in that they only had twenty and thirty dollars i believe it's in the re search because they thought it would demonstrate in fact they didn't have anything on they would be exonerated whereas be saying before us that you did a search because you suspected that there might be misconduct and that seems to be in tension with with reasonable basis to suspect that will five of us and what my client said is i want to search you because i think i think it will go well for you jaber i believe what you might be referring to is there was the eye of the officer when he came back d and this is a very strong case recall that immunity because there is circuit will out there that would say that that there is in fact it's clearly established that there wasn't a seizure here and it's clearly complies in these cases and that the search was reasonable and so it's not clearly established under sufficiently similar factual circumstances that one of my clients that here was a constitutional violation and therefore if the court disagrees with me that there was no constitutional violation at the merely in the supervisor's office they were paid overtime for this they were permitted to make when was permitted to make a call it was wife and both officers if they did they remain in the room because they were following orders not because there was an illegal work physical force debate were they paid or not for the over top i can't say they were or weren't because only asked for was objective evidence was the finance department so your realtors you don't know i don't know i only know that i got a da a daily attendance record i only know that my opponent says he had evidence and sent to me like home i have no page where you go to show me is from the finest firm that he got paid and that issue is resolved that has never showed up jurisdiction state or federal where officers were brought back to the station under similar circumstances where the court held there was a seizure for purposes of the fourth amendment no because the special needs cases hasn't really fit into this area that what what they've done is a broadly shrub in the area and said we're going to allow a special needs area of the supreme court and they said but to get to that special needs area you're going to have to show it have a standard and if you don't  go inside the standard meaning in this case we have a standard we have a director seven director seven is clear in this area applies citizens and police it says if you do not have probable cause which is what the police department  as the standard there the law enforcement people there you need consent my client set it in gave it give it the defendant say that that was a factual if i apply just the law that the supreme court has decided for special needs situations i have here a situation where the standard adopted by the public employer is either consent or probable cause true case law may have said they could have gone lower but they want to see the standard and it's clear even not the large gave was all of those factors to look at and the defendants in this case rely heavily r and then says if you have intimidation if you have what they were trouble about not going to the bathroom we don't have it here but we have is a confinement they were not free to leave in fact even when they were told to free they were free to leave at the end after two point five hours beyond their shift they were not to go to their locker they were not free to move about that district they were in fact escorted out of the