immunity in my time for the court i will spend a moment disgusting the defendant's purported reliance on the montana statute and then turn to their new assertion that this court can affirm based still only on the application of the totality of the circumstances even in the absence of  controlling statute with respect to the montana statute there are three reasons why this court should reverse the district court the first is there are a number of material factual questions which when all inferences are drawn and mr friedman's favor show the defendants did not rely on the montana statute at the time of the search and even if the defendants did rely on the montana statute the statute as a matter of law it does not apply to mr friedman because it does not permit the compelled the compelled taking of you why do you think that it was clearly established that the constitutional rights were violated yes your honor with respect to the montana statute it was clearly established law was violated because as as an initial matter there's no reason for the defendants to conclude that they could apply montana law the united states supreme court had held in e s c versus arabian air arabian oil that there is a presumption against extraterritorial application  search you know your honor the officers could not reasonably rely on that letter as the sole basis for conducting the search for a number of reasons the first of which the letter was more than a year stale at the time to say conducted the search so the letter doesn't allow the defendants to know that they at that moment in time had a right to take the d n a from mr friedman at the bare minimum they should have contacted the montana attorney general's office to determine whether or not a search had been taken whether or not montana still wanted the says go do this that's it's just that somehow factor into the second prong of saucy and it does factor into the second prong to the extent that detective brewster was instructed to conduct search however even the cases that the defendants have relied on state that when the officer has a reason to believe that the search might be on lawful stoli relying upon that that of the deputy da is not enough to grant qualified immunity to the detective here at the bare minimum the defendant should have presented some evidence the detective sure recognized the possible unlawfulness of the search in question lose that or that she told him don't worry it's ok you can conduct a search but the mere instruction to conduct the search without any other evidence is not enough to grant detective qualified immunity and certainly with perspective when you lose that she should have conducted some investigation as to whether or not she had the right to search mr freeman whether or not montana law permitted her to conduct the search whether nevada law permitted her to apply montana law well i guess you know is it reasonable to think that officers have to do you know alexis to westlaw search on extraterritorial application i mean i have a hard time understanding that that you know that on that we simply established but i do want to ask you about the sort of on the  sort of on the fourth amendment rights of your client at the time i view sleep you know the state's got a couple interest in terms that of you know the state's got and interest in identifying people and also  you know in crime solving and crime prevention and protection of society mind you you know your client was under arrest at the time that's not contested even arrested for a new charge of lewd behavior i don't know what's happened on that but we're talking he was also a prior sex offender i think out of two different states is there any down to that you know in terms so if they had wanted to go you know do a body cavity search on them position you're arguing that he said that he you know he's free from any of the problems that he had previously that he's rehabilitated but the reality of the situation when all of this happens to is he's under arrest for another crying in an institutional facility and when i look at supreme court precedent and sampson you know they talk about comparing thoroughly to prisoners but there's an implication there that prisoners have less rights than parolees so i'm really struggling with what sort of light your client had a point i'd like to address stamps and first i think that that case instructive to the facts of this case because in sampson the court was still applying a statute that applied to a parolee and there was a search condition that lessened the expectation of that individual's privacy so on the continuum of privacy expectations that the united states supreme court has recognized parolees have a greater expectation of privacy with respect to convicted incarcerated felons but a lesser expectation of privacy than an individual such as my client who has served  time and at the time was only that he's the prisoner at the time you know i mean you have to obviously focus on the fact that ok he's already done with serving his twenty years in one place and it's four years or five years in another place but right then he's arrested on a new arrestees in that case have to offered a fourth amendment violation and that the body cavity search in that case require the presence of probable cause and a warrant as required by the state they can't they could print you can't you can't judges on this panel here that talks about the d n a spatter identification and then fingerprints so where does that put you the difference between a finger printing of an arrestee and the  swap in this case is that a finger printing is approved because it is part of a routine booking process the book will swap in this case was not part of any routine booking process and the fourth amendment is designed to prevent the government from engaging in the random searches know that it does but it does not apply to arrestees it only applies at the time that the individual has been convicted and as part of their sentence require the deputy attorney general when she instructed detective to take this know but i i appreciate you looking the now you take someone's fingerprints they put and alps and all of that and they go when they then they run that thing and they find out your client you know the fingerprint showed up at the scene of murder you know going you know it showed up but you know and all these burglaries on all of those type of things why is this any different the search is different for two reasons the first is that the person's d n a provides the government with a number of additional identifying characteristics that aren't of team just from a person's fingerprint the second reason is that the search in this case was a physical intrusion into mr friedman body as opposed to the stamping of a person's fingerprint and this court and the united supreme court have held that intrusions into the body are entitled to a greater expectation of privacy than for example a fingerprint see the problem with the search in this case is that the search was conducted outside of any outside of any procedural limitation on the government's conduct the warrant requirement limits acts of the government statute limits this the discretion of the searching officers the defendants are asking this court to approve of a suspicion list search limited by nothing limited by no statute not limited by any of the court or court order there's nothing to show that they couldn't have gone and gotten a warrant for his d n a he was in their custody there was no existent circumstance there was no risk of the evidence being destroyed but they're asking this court to say that they didn't need to get a warrant that they didn't need a court order and that they don't write that could or what it should have ok that's on that but then the fact that you're saying they could've would've those facts were present in this case there was no level of suspicion there was no of likeable warrant there was no exception to the warrant requirement that was clear at the time because both cases had been decided and it would have been clear to a reasonable officer that a search in the there is no attorney general involved in this case it's just myself you need to speak up a little bit because i'm sorry apologize for basically the the issue here is really a qualified immunity is is can we appropriately rely upon the montana statute in doing the swap or buckle i think is what the metro people call it and in this situation i think that the biggest issue that's that really here is there is not a clear established law and in fact i think even the to some is i'm just talking about montana criminals you can't arrest someone in nevada and charge them with a violation of the montana and that's actually correct and if he we wouldn't have pulled them off the street and on this particular activity what happened was he was actually under arrest on a separate charge he was alternately convicted up but we were he was under arrest at the time and what happened as part of the erast there was a search and i believe there's some references in mr friedman's pleadings to a and improper search and  obtained that's where we received a letter from mr slaughter is during that search and based on that that's when we cooperated and that's when we relied on the statute to be able to just send the d n a to montana we did you  about in the search we received a letter from montana is that in the record you know all it is is i think it is the actual what's in the record is that there was a search he makes from mr freeman and several things including his informal brief which course was replaced by the problem counsel's brief he makes some references to this search and i believe he actually filed that i don't think was ever ruled on was a motion for and i apologise the term i think it was a motion to prevent us from the history of trans office from using those exhibits the letter the montana statute itself and the judgment of conviction and i believe there was one other document was used in the motion to dismi he was not entirely clueless acting on the direction of deputy attorney general if you brought the letter to the deputy to the deputies attention because she was the one who was involved in the prosecution and this is before the d n a was  dismiss the court considered as a motion to dismiss and in fact granted the motion dismissed at the end of all the pleadings i never filed any affidavits from any of the either detective who shave or the or the deputy da or anyone else because this was on probation and one of the things that was of great concern to us in crafting that opinion was to make sure that there were very clearly defined boundaries and very clearly defined specification of how these samples could be taken who they could be taken from when they could be taken and i'm concerned here the montana statute if in fact it was brought to the attention of the detective bushay and terry general that they are simply moving forward without any understanding of what the statute says and what it means and yet in this area of searches isn't there a responsibility of law enforcement when they are executing an action under a statute to be fully aware of what the statute provides for and of it's applicable to the particular situation yes and again i can answer that but what i know that's not part of the record basically when this information came in the deputy district attorney and i don't believe it was this deputy district attorney but another attorney in our office actually found tack at the montana to find out what their their take on the statute whether it could be applied did they want to do any kind of local swap and in fact exhibit i don't think there's any way that the montana supreme court would endorse the actual territorial application of the post release from her on my guess is they probably would declare the statute unconstitutional anyway  educated guess and what i can tell you is that in terms of a deputy district attorney and a police officer when they're placed in that situation the best thing they do is to contact the proper authorities and they thought they did got the information and took the swat to send to well i believe first there clearly is the montana statute a mr friedman was directed by mr slaughter in his letter to complying with the montana statute is mr slaughter understood mr slaughter was the director of the correctional or director of prisons for montana and he came in and he was arrested in that situation he he's a convicted felon he's under arrest very minimal privacy interest specifically with respect as a benefit  fayed on a eight thirty seven as a reference at some time at the same time that you know a profile derived from the defense blood sample steps is only a record of the defendants identity otherwise personal have a right for it to take these swabs or blood tests or any other invasive searches of people whom you merely arrest but have not been convicted right under the battle of she quite correctly you have correctly pointed out there are numerous questions in the record as to whether or not they actually did rely on the montana statue and it was for those errors that this court should at the very least reverse and we managed back to the district court for further proceedings such as discovery to allow mr friedman to determine whether they actually did rely on the montana law to during their search furthermore in their brief before this court defendants no longer are certain that they body required a warrant and probable cause there needs to be some sort of procedure here to guide the government's discretion in taking these types in making these types of searches is that very purpose that the fourth amendment is  to prevent against arbitrary and capricious searches by government officials what is the clearly established law though on people that are in the prisoner's regarding have quite the memory rights prisoners do have a lesser expectation of a prisoner yes ok well you know pretrial detain me which do you think there's a difference between pretrial detainees and people who are serving time pursuant to a conviction i do in terms of their privacy  that i do believe that there is a difference prove child cetane needs to have different rights than an individual who has been convicted they are in a different time frame of their you know criminal not yet sentence but criminal activities and the supreme court has noted that there is a continuum of privacy rights at every stage an individual is deemed to have different privacy rights than another stage so where it is no you've got a convicted felon and someone that's incarcerated but he would not be an individual who was free under morsi this court recognized that individuals who are on probation are far different from an individual who is incarcerated and in this instance mr freeman is not incarcerated he is yet to be convicted of his time he is under arrest if there are procedures in place for standard booking procedures to take his d n a while he is and then that clip possibly provide adequate procedures to allow for a fourth amendment search however here defendants had him in his custody for over a month before they took his d n a there is no reason for them i believe they could do that yes but this is a search of his body of in the interior of his body and this court has held that such searches require necessarily hold a greater implication of privacy rights than the search i i would say yes right so would you rather go to the dentist or the kind of college