the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court make if their attendance and we shall be heard god say it's united states of america and this honorable court or can reserve two minutes for rebuttal thank you but in my limited time today i'd like again with the court's permission to take our nd argument st pacifically i'd like to begin by addressing mr president challenge to the district courts the terminations that the visual body cavity search that was conducted by the officers of mr president person was lawful we contend as the court knows of that that decision ever first there's no dispute that what happened here falls into the category of a visual cavity search it was more than a strip search mr prez was directed to drop his pants and well what is your position on that well i guess i guess i looked united states for versus barnes here and i think the court requires that there be a particular i suspicion that this defendant this particular defendant is concealing contraband i suppose so it's assumed to be drugs but could be anything on his person i think on his person now now what makes it a visual body cavity searches that they're looking at his buttocks i suppose he could be hiding it somewhere else that may not be as intrusive a search but there must be a particular ised a particular ise suspicion that this particular defendant is concealing contraband on his person let me ask you this council are do we know what was happening to this defendant was he going into the general case in the district court is that correct that's my i believe that's correct all right well let the government answer it out for a nd only you say that the government failed to put on any evidence whatsoever as to whether he would be put in a general jail population would be put in an individual cell whatever is that correct that's correct your honor there's no evidence in the record about whether there is a what type of holding cell there may or may not be remaining in this location and there's no evidence frankly whether he would have been given bail or whether he might have even been issued a citation excuse me he could not have been issued bail without some time being spent in no holdings isn't that correct i think that decision to hold him and have a bill the terminations we're he was going to go there's simply no evidence of that in the record a general policy relating to the ministrations of the jail that that strip searches and body cavity searches would be done routinely  before putting a defendant are pretty crowded taney into the general population there is no such evidence your honor in the record there were questions about whether this type of search was conducted pursuant to local policy well there were there were questions that i believe i asked that was this was the was this search of his person conduct and pursuant to any policy in riviere to be fair i don't think that question was asking about whether there was a policy that attaches to a particular detention facility that simply wasn't in the record so i was asking that the question was whether you know whether there was any policy that  that that supported the search i guess i will say there's simply no evidence of any policy anywhere in terms and in your view who had the burden to put in their hands well i believe that the government had the burden of we challenge the search and there they need to present some evidence if they were going to try to support the search the evidence they put in was the the grounds that the officers used for the search i'm not there if there were some other basis for the search such as he was going to enter into some general population or that that was attached to some disability of the government should have put that in there was no such evidence that's right rather than i think we with that and i apologise if i might try response was confusing what i was saying is that there was no separate evidence of some other policy connecting to connected to some detention facility because there was requisite individual on suspicion that you're i think you can i think you're entitled to look at the record and make make those decisions i would submit here there simply is not sufficient are there are there are not sufficient facts to support individualized particular particularized suspicion especially the facts here are not that different from barnes but actually weaker than barnes because and if i may continue your honor i know i'm out of time but but but there there there even in barnes there was a tip that said that the defendant was known to cheek drugs i think was the term and even there this court re man did for a determination of the reliability of that temp now we don't even have that here we simply have generalized suspicion and and that you know there may be some ability conclusion that this that this defendant was concealing contraband and that that evan that evidence is what's required because we're dealing with the visual cavity body search which has a higher standard  what it's a sliding scale here is there's a greater intrusion into privacy there's a more there needs to be more particularized evidence and i submit on this record there is no such there is no such evidence there's no individualized or particular that contraband may be concealed on the individual's person or more specifically in the intimate body cavity area in our of in our decision in raspberry february two thousand if you agree that that suggests that it's not enough to have individualized suspicion that competence can see about a person but it has to be more particular to the area of the  the private body part area that it should and i think that for purposes of this piece we can agree that it has to be more specific to the body cavity area it suggestion that anything other than reasona and the passenger in the car took off running and eventually tossed a gun away during that period of distraction and while they were attempting to find out if this driver who were they stopped the defendant had an criminal record you was certain that the officer thought that was more than adequate time fact that he had the motive and opportunity to see those traps and there was no statue like him barnes there was no steps out in the vehicle that allowed the officers recently to conclude that a defendant i'm i'm not sure what the government was alluding to we've been clear in our brief and below that here with the visual body cavity search that requirement is a more particular standard the standard that that's set forth in barns so i don't think anything's been waived in connection with that and i'm not sure i understand the other thing i want to mention warrants itself in barns there was evidence of opportunity to conceal there was specific testimony actually more testimony than there was in this case civic testimony from the officer that there was time where the defendant could have concealed drugs the standard is the search of the intimate area so well if the contraband is somewhere else on the body presumably it could be found by something that would be a more standard visual strip  search by focusing on the intimate area that's where the standard becomes a sliding scale and is a more particularized requirement and i'm not i don't understand that argument i just want to be sure i after he was asked to bend over yes but you haven't answered my question well it's true that he was asked to bend over but it's a little it strikes me as improbable of that that he was standing there naked and was told to either ben forward or spread his legs and that nothing would have been seen well did you ask those questions i think it was i think what the evidence is pretty clear that that he that nothing was seen it was it was a visual body cavity search that included him bending over and the officer lowering his head below is but it's as i understood the government they were saying look a pat and frisk went out any dropping of clothing would not have found contraband and that is what justifies the further search because there was a strong suspicion that there were other drugs and they were on his person because he was a drug dealer and there were no drugs found in the car other than as individual sale bag rights the response to that and the response to that is that that could justify a strip search but not a visual body cavity search in order to support a  cavity search there i'm sorry so you're saying in a strip search they couldn't have told them to bend over to bend over and to inspect they can't then inspect his his buttocks in an office or it what what matters is is the visual body cavity search once he sees the baggie i don't think i have an argument that prevents him from retrieving the peggy unless it was retrieved in some harsh way i'm not suggesting that so  over and and and a close inspection of his buttocks so i think it's the it's that in combination i think the government agrees with me in their brief there is no question if falls into that middle category that this