slope and to jail policies for searches in the jail for deterrent effect they are claiming that the absence of finding anything from kitchen searches done routinely on a daily basis reflects how powerful the deterrent effect is however if this case is allowed to stand it will set a precedent that allows jails to it the kitchen is not an unsafe area and the supreme court specifically said in national treasury employee unions were says foreign read quote unquote this is from the opinion of the of our court page eight nine when the government's interest lauri's and deterring highly hazardous conduct a low incidence of such conduct far from impugning the validity of the scheme for implementing this interest is more logically viewed as a hallmark of success helpful that case was not  in taken back to the sales and used for barter what's your best case for the proposition that a search of those who work in the kitchen validates the constitution your honor since this is a case of first impression we don't have a line of case law to address it however the case that the court cites in its opinion which is new nias is not appropriate here because it reflects the inmates going out on the roadside where they could pick up knives they could pick up drugs perhaps razors things that are not available in the secure confines of the kitchen in that instant case or it and any jail presumably it was some part of concern that there could be a shop instrument there could be shifts that could be made from some of the loose metal in the kitchen or other pieces of material that the inmates could break loose from some of the equipment and that one of the security concerns you and i'm sorry i didn't understand your statement loose male i didn't hear what you said tallness metal i'm not the loose metal as in utensils your honor but is loose metal in the kitchen and i think in the utensils or on kitchen equipment you know a corner could come off and when i thought that was the concern right you're right but the record here from the excerpts of record it is very clear that in this case the county has post orders and policies that provide for inventory of a shadow box that holds utensils and to ensure that all utensils are accounted for can openers and nine s are affixed to the kitchen tables by cables all the the whole crew is supervised by video by live people and all these things also if they were concerned about metal leaving there they could have them go through a metal choir to use the least intrusive means of detection your honor whether it's least intrusive means of detection they have to protect on a daily basis absent exigent circumstances like an emergency for emergency safety or highly hazardous equipment having them line up in in rows of five or ten on a daily basis to see each other naked and even to have to go into privacy stalls when there is no legitimate basis for a find that something is missing on a special occasion then they say everybody we're going to put you in a stall and we're going to assert you and see if any of you have it but that never happens and if it did happen on one occasion that might be warranted but on a daily routine basis with nothing else to show for it also cornucopia of products in a kitchen that or bonanzas outside are not proper they're not just necessarily weapons or kitchen utensils but packets of food and things like that plus the outsiders who are coming in from the outside to work in the kitchen with the inmates create the possibility drugs would enter into the kitchen so that the inmate could get the drugs from the outside there are people who are not inmates who are in the kitchen no absolutely not just the deputies and the  people people yes but not but not people as in friends or relations of inmates that have a report that might want to slip them a present or what have you there's still individuals who are coming from the outside who would have access to the prisoners and could write the prisoners are required to strip down for them to secrete food or weapons in their private areas when they are required to change outfits and change underwear before they any consent to a strip search if they sign a release saying you work here with the understanding that you may be so searched on a daily basis and you see here by consent i don't think that would be a valid document but at that would at least be s choices they are assigned there and according to our client they are also disciplined if they do not show up for assignment and if the object and they can go into segregation there are penalties associated with it and regardless they are these are would be  violations and unfair work conditions for them to have to go through these groups scrip searches or even in the in the spicy panel rooms to have to do that in order to work when there is no compelling reason there is no search was conducted by d o c staff will be of the same gender as the inmate unless there is an emergency except in emergencies inmates undergoing skin searches will be removed to a private area for the search that precludes five and ten seeing each other scripts search naked in the state and the county has shown no reason why they should be from that state regulation there are also do you distinguish between the searches conducted in a group setting before the privacy panels will put in place or do you think the analysis is the same so i took the pretty privacy panel searches versus the post panel searches thank you are i believe that there is definitely a distinction to be made that there is a lesser intrusion post privacy panels than when they are seeing each other and deputies and cameras are seeing them on mass five men however it is our contention that the case law saying that reasonable suspicion will cause or anything even close to that is required when you're talking about strip searches in a prison setting right but there should be a rational basis even this court has said deterrence right  adequate goal and so so long as the government has a justification to deter the secretion of contraband including seemingly innocuous items like food from the kitchen right that that seems to be a justification that's accepted by the supreme court then why use inferior strip searches coming out of the dining hall where they can take out food and beverages and sugar and make you know on a daily basis because that is a  they have a plate and they can eat a quarter of it and take half of it home to their store to their room with them they have no one dictates what portion they eat and what they take is that in the record is that in the record in the record can take their food back to their they have access to food three times a day and they and it is not unlike having access to food in the kitchen and they are not scripts which when they leave the dining hall to check that they are not so creating any food that's different than sit there and then saying they're allowed to take their food with i never i never if i misspoke if i said they were allowed to take it to their cells are not supposed to take it to their cells that doesn't mean  doesn't happen or that they don't find it but that also means that it doesn't happen that kitchen workers get in there they just haven't been discovered yet well once again there is nothing in the record to suggest a single incident of any contraband from the kitchen searches and as i said you're out of the deterrence effect is a very under these circumstances there is no probability of any dangerous weapons all the equipment knives and what have good morning your honors and may it please the court jackie caymans on behalf the appellant in this case is asking this court to revisit a decade of law from the on month ninth circuit and the united states supreme court and essentially really insert a reasonable suspicion requirement to jail strip searches this court should decline that invitation and affirm the district court this court is already up held an almost identical policy in the nguni as case in that case the bureau of prisons authorized visual body cavity strip searches same as this case for any time that there was a reasonable suspicion of contraband or like here where there was an opportunity to have contraband contrary to what the parents council argues it was not an outside work crew in that case it was the policy was the pot the blanket policy itself authorizing strip searches in the event that there is opportunity to obtain contraband in this case there was such an opportunity working in the kitchen it's twenty thousand square feet there's one deputy to supervise twenty inmates the inmates interact with civilian workers from aramark who as you know facility workers are in and out every day and could potentially develop relationships with the inmates could make arrangements to smuggle items in there is evidence in the record in the declaration of brandon wade and that's found in the supplemental excerpts of record eighteen that there is a prior history of concern that the marc workers were in fact smuggling in and making such a arrangements with in mates there is also access to food items plastic wrap shards of metal the inmates have access to a loading dock where they are able to go outside in that loading group search as in this case and i'm referring specifically to the time period before the privacy panels were put in place because that's something that we looked at to determine the reasonableness the scope of the search as well this was highly intrusive search and it was done in group settings as i understand it where inmates were lined up in front of each other in a how large was the group it was between five and ten inmates initially and then once the privacy panels were installed it was five in may it's for something in the record that justifies that sort of group search it's difficult to answer that question the way that it's phrase you're absolutely correct that the manner i was like wasn't done in that way you know it appears from the record that nobody had complained and it is the most efficient way to conduct the search it is and it is more efficient to bend the privacy panels i'm not the record it was that it was for security of the deputies that she could have a larger number of deputies on site if you had a larger group of if you did it with the logic of inmates if you did it single e you have to have one deputy per inmate in there was not enough staff to do that yes you're absolutely correct i'm saying the same thing in a different way because you could search more inmates at a time before the privacy panels you were able to have two deputies and the searches could proceed more quickly so you're correct it's for the safety of the officers and also for the in ministry of efficiency of searching more inmates at a time now in response to can you explain that to me so before the privacy panels were put in place there were five to ten inmates with two deputies in the room right correct and post privacy panel there were how many inmates with one deputy in the room being searched five inmates or five inmates with one deputy and then the rest of the inmates were waiting in the sally port correct around with no deputies no with with the other deputies i believe i'd have to have to confirm that with the record but i believe that because the volume of inmates was smaller in the search room versus outside the search room the majority of supervision so the one t two deputies basically split up with one waiting in the sally port with inmates and the other basically searching five at a time this is post privacy panel i believe that's correct but before the privacy panels were put in place were there inmates piece there was a camera right here i apologize i'd have to check the record to answer that question because part of the government's the defendant's response in this case is there was a resource issue but the record isn't clear on how that resource issue played out it didn't seem like there was any savings in terms of resources or time well if i could take us just a step back and i think the quite the line of questioning kind of assumes a premise that the privacy panels are required by the united states constitution and this court's precedent doesn't hold that they are i'm not assuming that i'm looking for the justification for the the search it's balancing right you've got a security concern that's legitimate in my view you've got a valid justification you've got the jail setting but the selection the method that's chosen is a very highly intrusive message which undercuts the reasonable to search i'm trying to balance the concern i'm trying to test your argument that there was a a resource or safety concern here and i think you're exactly right that that's the analysis this courting gauges and the response i would have is is twofold first this court has repeatedly up how the use of group search is now this is not in front of officers of the opposite gender of this is not in public view this isn't a small group of inmates who live in a dorm setting already being searched now this court has upheld that in the mission felder case thompson the sousa of the united states supreme court considered that in bell there was a there was language in the dissent indicating that bellevue wolfish the presidential case in this matter involved a group strip search and florence also there was indication from the petitioners brief that that was a group strip search absent indication that that poses a constitutional problem the county was not in the position to evaluate whether we the there were leaks and there were as a means to avoid a constitutional problem because there wasn't one th the second point that i'd make is that a visual body cavity search while undoubtedly intrusive has been repeatedly recognized as one of the lesser intrusive ways to search an inmate when you have to when you have to get that job done this with this is the way the courts have recognized is the least intrusive it's non tactile the court in bull recognized it in mission felder united states  group search as well and determined that that factor actually actually was a bird of the maricopa county i apologize that that factor actually cut in favor of the reasonableness of the search because there was less opportunity for something to go wrong for somebody to exceed the bounds of the search requirements because they were watching eyes so it's not as a clear cut we needed to make this different in order to have a comport with the constitution is there particular reason why inmates waiting in the sally port monitored by a video feed there was no deputy there but yes after the privacy panels were installed in the deputy split up was it a a space constraint or were another reason that i'm not finding in the before the installation of privacy panels inmates would generally be moved in groups of five to ten with the other inmates remaining in the sally port monitored by a control room deputy on a video screen after the installation of the panels only five inmates are moved at a time into the room with the remaining expert i scored deputy waiting with the rest of the kitchen crew and my my assumption from that is simply that more than a few inmates fifteen inmates need to be monitored by a deputy it's not sufficient to have somebody monitoring them remotely via video screen because the risks posed by fifteen inmates are substantially greater than the risks posed by a smaller number such as five or ten i think it's an important to note that the on bank decision in this court that i think provides the most guidance is bull the city of city and county of san francisco involved an identical search visual body cavity search and this court essentially overruled the prior history of using reasonable suspicion as a requirement and that analysis was confirmed by the united states supreme court and in the florence case so contrary to appellant counsel argument this isn't an issue of first impression at all there is a long history of analysis in this area there are many cases analyzing the constitutionality of  strip searches and balancing test from bell has been well established that if there is a general need to search an inmate at as there is in this case given the risks posed we both agree that there is a shadow box inventory the large knives that can openers are in fact chained to the table but there is no inventory of food there is no inventory of plastic wrap there is no inventory of scraps of wood shards of metal there's no inventory of all the utensils forks knives i think there's a there is agreement there and i think there's also agreement as to the appellant argues in their brief that there is that could potentially be used to create weapons to barter with other inmates to create a general risk to the safety of the officers and the inmates in the jail counsel do you agree with opposing counsel's position and working in the kitchen is an assignment rather than a volunteer voluntary endeavor it can be a volunteer it's a volunteer if you are pretrial detainee in the jail and it is not a volunteer assignment if you are sentence in so there is no way that an inmate can opt out of work in the kitchen a sentence inmate that's correct that's correct although i think the district courts analysis on that is fairly is persuasive the district court compared that to the doctrine of police created exit in c and found that because there is no constitutional violation in requiring a work assignment in the first place there is no constitutional violation in the attendant search requirements that may result from that because many prison work assignments may involve heightened security restrictions and because the work assignment itself doesn't violate the fourth or eighth amendments then neither does the required honor i think the court is on to the right track here the the manner of the strip search their explanation is no one complained before so we didn't comply with the constitution or there's no case law to suggest that inmates or any citizen has to complain before a facility is being compliant with the constitution and the court is right that they cannot opt out if they are sentenced and there is also the case law in the record it is very clear that  all kitchen workers are supervised during the entire tiredly of the serving kitching duty and before the kitchen workers endure the strip searches the m c i g staff account for all utensils and equipment following each if they could also account for all food in all wrapping they could if they are so concerned with their closed circuit video and with their staff they could have close monitoring and say hey take a look at the video inmate x looks like he did something furtive and then taken me to x and have him searched or a bunch of them but there is no there is no evidence that they have that heightened concern for that heightened view of them this is not inmates that are coming out future inmates coming from the outside community which could bring in drugs or contraband or weapons this is within their own facility under their own control and furthermore if the any cost cost issues or feasibility or convenience administrate of inconvenience experience to comply with the constitution and conducting individual strip search is an inadequate justification for unlawful practices under from zero versus richardson for eleven us six hundred seventy seven six ninety nine hundred seventy three and although effect keisha's administration of government programs is not without some importance the constitution recognizes higher values than speed and efficiency rather thank you counsel thank you thank you to both counsel for your help on arguments in this case a case just argued is