case is september of two thousand and nine this court has said that a strip search is inherently humiliating and degrading the seventh circuit called it demeaning at humanizing and repulsive i think those definitions were correct and that was good law but in florence in two thousand and twelve that moved away from that definition in law in the police brief in both the district court in here it relied on florence which was not the law to be a fly applied in this case the law that should be applied to this case is small and there the court said quote that strip searching arrestees for non felony offenses without individualized determination of reasonable suspicion that the arrestee was or is likely to be carrying or concealing weapons drugs or other contraband violates the fourth amendment in court well wait a minute i know something about smoke that was about a juvenile and the court held that the strip search was reasonable so the part you're quoting was not the holding of that case and not seeing it right now but pages out from the have the page number you have the page number judge it's at page five and six of plate of the brief yeah into the district court i think we were quoting maybe the second circuit in an earlier case which ha that but in any event go ahead you can judge if that deal of the law in applying that law to this case that involved hair the one defendant before the strip search had no reasonable suspicion or probable cause  jacobson had tapes something under his grow them or inserted something into his anal opening before before mccormick stops jacobson jacobson but didn't know he was going to be stopped he had no idea that he was going to jail there was no no reason for him to believe that he had had to smuggle something into the jail shortly after the stop mccormick place places handcuffs on jacobson with jacobson's hands behind his back and from that point on jacobson can't reach under his grow room or to as a loping mccormick than searches jacobson's clothing this is still out of the scene and searches his car and then mccormick transports jacobson to the jail garage and jacobson is removed from the squad car his clothes are searched for the second time in the squad cars search during those two searches nothing suspicious is found the two defendants then take jacobson to the strip search room in order him to remove all of his clothing as jacobson and closing they search is clothing for the third time and still nothing suspicious is found at this point voltaire is required to determine if he has probable probable as reasonable suspicion or probable cause to suspect that jacobson has something hidden under his grow dim or up his anus or he can't do the strip search he had ever reasonable belief that jacobson was attempting to smuggle at that point voltaire decided to go forward with what you have called an inherently degrading search the strip search this search finds nothing and he had no probable cause to force jacobson through this degrading process after the strip search mccormick takes jacobson from the strip search room to the blood test room and voltaire didn't have the results of the blood test when he decided to do the strip search so the results of that are not part of this process after the blood test jacobson is not charged he's booked and released the only reason volterra gave for the strip search is because mccormick had told vo e jacobsen admitted back out of the stop to get smoked a bowl of marijuana some time before the traffic stop the jail at a strip search policy that followed i think your decision and smoke and that policy refers refers over and over the strip search was to be private media mccormick could not participate in a strip search as he did now let me ask you this you started out by saying florence came after the events in this case what's your position on whether this search was permissible under the reasoning of florence and florence judge as you know he had to go into the general population of the jail and that became the basis of that of that r i think it's bad what about if i know you think it's bad law but it is the supreme court's decision so what about the fact that this man was put into a booking area with other inmates or the go into the general population here they strip searched him take all of his clothes give it back to him before he goes to the blood test room and then he's released so i think that's the difference in florence always this man ever in there in a general booking area with other arrestees there's other arrestees there's the is the first place they come to when they come from the grudge into the jail so it's in the jail but just the booking area where the decision is made what to do with them and after the blood described as sort of a doctor's office lobby area lobby would be more correct than ours than a doctor's office there's a long desk where they come in from the jail and then they do had to do the criminal check in the different kinds of things there is that like a hole or is that is it in the same area where folks in the jail are actually working or are they all in the same location it's separate from the different from the general population for both males and females of the jail so this is just we're all coming on both males and females are female jailers male jailers this is just blocking and fingerprinting photographs so is all that equipment there as well the finger quit or the like is everybody together the focus being booked and the people booking them or is there a separation where there's sort of a waiting area or a cell where you're sitting all together with your for booking and doing that stuff so when he's taken and the blood test room he simply taken from that general area into a room and they go through the implied consent there so the jailers are in a separate room and they call each inmate out for whatever no there's a desk kind of like you're sitting out there in the jail as are behind that and they're mangling with the crowd there and they're working with whatever they've got to do to finish the booking in process this is a situation where under their policy never would have been  into the general population let me ask you this you talked about the description of this booking area that district court said that it's opinion that guy groups and was held in the booking area of the detention center where he was in close contact with other arrestees that would be correct had jacobsen been carrying contraband he could have passed that contrail into another arrest state he was being detained and that arrest they could have carried the contraband into the jail that's true they're in close contact they come in with their clothes from the jail garage there just like jacob said there's there searched at the scene there searched again in the in the jail sally port or garage there padded argument here that there was sufficient reason to believe that he was concealing yeah survey and whatever standard we might apply voltaire is the only one who could authorize the strip search with him the jail in the only thing he had is a statement from mccormick that mccormick had got from jacobson that i smoked a bowl of marijuana before you stop that's the end that's the most they have and then and then mccormick at the scene does the pat search they came into the jail there's another clothing search there empty the pockets now when they get into the strip search room the deputy should have been in there but he was in there now they search is clothing a givens of the only thing left is under this grow dim or up his anus and he reached into that the light out of this facility i'm gathering from what you're saying that if officers had sufficient reason to believe that there could be be permissible if there was sufficient reason to believe the cold rain was there that's correct even before florence according to their i think it was the the decision i mentioned before smoke i think even that if they have a reasonable belief that you're trying to smuggle something then they do it and that's why i say in this situation jake is from doesn't know he's going to be stopped he doesn't know he's going into the jail he's got one petty mystery or a speeding ticket in a quarter of a century so he's not thinking about smuggling and they have no reason to believe that he was thinking but  now under florence as i understand it if the inmate goes in the general population the strip search is permitted with without regard to any suspicion right spirit soul what's your why do you say the rationale florence would not applied to someone who goes into a general booking area where he's in close contact with other arrestees might my take on florence is the gang you don't know who's a gang member what gang member in the general population so you have to strip somebody to see if they have tattoos or if they belong to a gang because if you put them in the wrong place they get killed the problem with florence is i've got a wife and four daughters and a daughter in law who regularly hand we parking tickets and speeding tickets and if i forget to take care of them under force they can be strip searched they can be there can be a court order that they be held for court which means they go into the general population in my view force went too far way too far i go on well you said you under served time for a bottle it's really up to you but if you wish to stop now you may reserve the rest or you may proceed it's your time thank you after that we can extend the time at the end so there's after the strip search of jacobson voltaire was required by their policy to make a record that the strip search was done in the probable cause for it he elected not to do so and i think it's because he didn't have probable cause the strip search was conducted on september twelfth two thousand and nine and shortly after that jacobson began requesting the strip search records valter supervisor jail director center sergeant ammon adams and others said over and over again the strip search didn't happen jacobson is making it up april twentieth twenty town center appeared in court and now faced with perjury in that now she produced the records for the strip search and told the court who did voltaire in his supervisors did a cover up of this strip search for about six and a half months in this case our law says that all reasonable inference of shall be made for the appellant plaintiff in the summary judgment process following that law there is only one inference that could be made about voluntary and supervisors covering up the strip search and it is that they knew it violated their policy i think the smoke case in the fourth amendment and because of that a request a reversal of the district court order for both the fins thank you all right thank you mr kennedy mr griffi because the that was set forth by director centers affidavit director center is it's here today but basically her description was it's like a doctor's office so there's a waiting area and people come in and after hours in particular through a sally port from the garage and they go through the maybe they get searched coming in maybe they get strip search coming and they come into up a waiting room and they wait their turn to approach the booking deputy who's at the post and that that person goes through the process of things like am i going to keep in housing am i going to release are you going to hurt yourself are you under the influence of drugs things like that there's two cells in there that are for people who are violen there's two cells for people who might hurt themselves and the rest of the folks mingle around they can sit in chairs they can make phone calls there's a t v and so it's really undisputed that those people are in close contact with one another and it's really separate search conducted before someone goes into the general population you know the searchers are all done before they go into the booking area and then there are some supper o c d i guess all right but that's how they do it but the question is whether that's a reasonable way to do it you know i think that one of the challenges we have here is recognizing the difficult environment that these people work in and if we look at the opinion florence that's a big part of what that opinion was directed to is giving deference to those people and deciding how they conduct their business to make sure that the general stays safe so we have this gentleman who's the detention deputy what i was getting at is if they could search the people before they go into the general population sure why is it reasonable to search the people before they go into the booking area they could have drugs in the booking area they did bring weapons into the booking area lots of harm that could happen in the booking your area all right so protection of the booking area is absolutely i mean absolutely and so you're protecting not only the staff but you're also protecting detainees from one another you know what you know counsel made reference for example to gangs i mean what if someone manages to get in there with maybe a wire in their hair and then they see a someone they got a problem with and they attack him using this potential weapon so it's critical to the the operation of the jail and the safety of everyone in there that they do this these searches really is then he decided that anyone that's  in the strip search under florence true now that's not how they do it and it's not how they did they do know the county don't detention center but if you give florence a bright spot possible reading there's no offenses if i recall correctly but i also think the justice kennedy directed that to them his opinion retaught about the fact that even the most minor offenders can be the biggest problems while even under force isn't going to be some reason  whatever the whatever the the level of the proof might be there has to be some reason to believe that the detaining a is possesses mark possess contraband of some sort or frack i think in florence there is no evidence that the the particular person had any problem i mean i think what he was brought in on a thank you not paying a ticket or something like that everybody gets searched which is really much broader than the procedures that we use it on the county were glasby some least some suspect well if there was reasonable suspicion here then this is a narrower case everyone in the camp to play to you know really i think i can make the argument either way even under preforms was one of the challenges is what's the reasonable suspicion here well the basis of circuits that seem to say being under the influence of drugs is not submitted by the detention deputy voltaire he basically said i had to make sure there wasn't something else out and we also have to recognize that you know you really get a look at this from perspective of the detention deputy they don't know what's going on there they don't know who this guy is they don't know if he drugs he could have left his party taken his pot put it in a bag he could have put it in a body cavity the people in these detention facilities they don't know and that's why they have these procedures to address all these potential problems because they don't even if they're not going to be even if the officers know that they will never enter the general jail population if you have a start i mean what do you strip search traffic offenders well it's i think there's a distinction means that there's a lot of people who get arrested the never even come to detention facility but about someone that doesn't pay their traffic tickets in a warrant is issued and so they're booked can they be strip searched under florence yes that's mr and i'm florence i think there was a limitation at least of a theme through that opinion not on the severity of the offense but on whether they were going to be interacting with other folks and i think there was a theme of was there an alternative in could the detention center have an alternative like judge call it and said just strip search them before they go into the general population well i think you're every cure correct i think there was that there was an underlying view there of you know are there other ways of doing it i think the majority really though ultimately rejected that i think that we're out of the the so in this particular case i think it would take actually physical redesign of the detention center to do that we don't don't they just pull people into the pink room or something to to do a private strip search and the pink room is between the garage and the housing but it took it it just seems if you really want to protect the general population from getting getting access to anything someone might bring in it's actually more efficient to do it after they've know for sure you're going to strip them right strip searching right before they go into general population and then the folks who get released you just never even have to take the time to to do that what about the safety of the people in the booking area what about the safety of the general staff in the booking area where you have a couple searches and there's a search i'm sure for weapons and those sorts of the wiring the hair or whatever you were referring to that's different right then the strip search we're  they can do more thorough searches as they go and there's no question but one of them i hear you saying there is intermingling of arrestees in the booking area absolutely and so your reasoning by analogy to florence that it's close enough to a general population florence's reasoning applies absolutely this is a business or at least i guess you're saying it's not clearly established that it doesn't apply and i think that the you know i think i the number that i had in the in the record is five thousand five hundred people go through case i argue that even if you're going to apply a pre formed probable cause existed to conduct the search just because the person to admitted that they had just done drugs and we got to make sure that these drugs don't come in where they could  possibility in there in the detention for us to make the assessment on an individual basis but you're saying that's reasonable suspicion you think that's in the recent use you don't have to show any other furtive movements to try to hide the drugs or anything like that i think i can tell you the way these are trained based on the policy it's a combination of all those things that there was anything here other than recent use that the statement was that the admission of smoking  you think we should say that's reasonable suspicion to believe that he's hiding it in a body cavity and saying that's reasonable suspicion enough of a reasonable suspicion to justify to a detention staff officer to conduct a search from the base given all different due deference to the difficulties they push people face but i think it alternately i don't think we have to answer that question moves and forces doesn't even require us to go  particularly when we have people are going to be going in and intermingling with other folks so if you've got a set up like ours i think what florence tells us and there's going to be this intermingling i think would force tells us is you can strip search anybody would you agree that no one thought none of the officers followed anytime that that this arrest that he was going to end up in the general jail population i believe that that's correct and additional question is this i haven't looked at the the complaint which is this a lawsuit for damages against these officers yes in it but it's not a qualified immunity in the answer why wouldn't it be raised now i mean this is the time is typically raised to the purpose of qualified immunity is to provoke prevent the officers from having to go through the process of litigation if the right that's alleged is not clearly established but i think that the one of the one of the it's hard for me to think back to what our thought process was of the time sorry judge motion but i think we felt pretty strongly but a position based in florence ultimately if you're going to you know we can it's pretty easy to make the qualified immunity analysis because the you know the law was well established i think about what the grounds were and that was that there needs to be probable cause for the you know i keep saying probable but the end of the day i think the surrogate might be different if the layout of this jail was different with the fact is that anybody coming after sylvie is mengele inc openly with people who are going into the main housing unit and i think in that particular scenario the follow through they get the flow sheet there was to be no notes rip search in this situation voltaire didn't follow the policy you know that he didn't put put the mark down for the strip search occurred no in fact for six and half months they claim my client pushed the button and he didn't put any probable cause for that for the strip search because there wasn't in the preforms the preforms law on strip searches was there had to be reasonable suspicion the reasonable suspicion in this case had to be that that he was hiding something under his scrotum or in and his anal opening because they had been through his clothes three times and before they make the decision to do the strip search he's standing naked in front of two men that he's never seen in his life and that's when they make the decision to do the strip search they didn't have reasonable cause nor did they have probable cause they had no reason to do it thank you thank you sir thank you both very arguments the case is submitted and the court will fil opinion in due course