parties motions for summary judgment finding an issue of fact on a lower body search preclude summary judgment on an upper body search i have a question about that because it seems to me that there's only one claim for an unreasonable search isn't there that has been brought in the complaint in other words there's not count one upper body search count two lower body search yes you are so i'm a little confused of i mean it sounds like both parties wanted to do this shaking and movement of the bra the lower body search deals with a more egregious search that is heavily factually disputed by both parties the top the factual scenario of the advice there is mainly there is defending the lower body search right i mean yes you are so it's not a typical immunity situation where the she doesn't have to go to trial and presumably even if it's just the lower body search that's at issue the entire chain of events will be admitted so i'm not sure what the dignity of the trial similarly confused judge kelly i'm new here but this is the st time i've seen a qualified immunity case where you've got a search split up into two elements likely be lower by the search but it is but there is that there are just real quick so i understand your terminology there was a pat down away from the car correct yes ok so when you say pat down is that what you're referring to well i think that there's a little bit  to figure out how the jury would be instructed on this what it would what does it matter what would the jury would you be asking then let's say you get qualified immunity from what you're calling is the upper body search so what you know what they go to the jury and we need be flippant but sort of does that is there an instruction that says to the jury they off consider the upper body search only as it relates to the lower body but you can not find a constitutional violation on the upper body search alone while i was i was at the search of the it would it wouldn't narrow the issues for the jury the jury would to trial as far as the advice search applying and it would also correct in clarity for officer maced then if there were any sort of jury verdict as to which action in going judges are but is these two searches as you call them two distinct searches they curve simultaneous right they did that and we're not talking about doing the upper body search and then five and apply it to the facts of the upper body search and come to a decision that i saw as one continuous search it was one continuous search but where i guess asking for you to stop before we hit the lower body so what is charges the plaintiff herself had a criminal history of some sort of domestic assault and he personally observed her behavior her nervous demeanor so based on those he called officer made those factors he called of that i have three minutes left i'd like to reserve them for about off the court has no more  of the search happened with and they be having her hands up on the light bar of the patrol car and maybe says it happened in the car after she had been seated in the in the back  seat i certainly agree that it's not a pat down though and we sat in our case some standards for pat down from other cases and the officer supposed to have the thing in and just run down the chest one time  anyway what we did was this plaintiff moved for partial summary judgment stating we aren't piled to a th amendment conclusion that our client constitutional rights were violated by that upper body search on the undisputed facts and therefore the core shall be instructing the drury to go to damages only on that issue now stop that's not an appeal  ok we go for no right to have any relief for the upper body and that is where that's that that's what this case right now is about and that if i understand the district court's opinion the district court determined that it was not able  to that there were still the issues of fact to be determined because it it wanted to consider the entire search so that there were factual disputes does that does that matter to our ability to take this appeal especially on the argument of judge copas that says we're going to trial anyway i mean the whole point of qualified immunity is to deny the student to respect the defendant's right to avoid a trial but that is fortunate in this case calling the upper body search how does that play out it trial what happens what's the effect of that except well what's the effect of that well i think that i would be able to spot the whole case was committed because the whole story would command because the the circumstances standard in one thousand and eighty three dollars that the jury would be instructed that the fact that maybe even with a special iraq torie did the officer precisely and the judge said it's all mixed together less let's hear the whole thing obviously i mean from the perspective of the plaintiff at trial it's delightful for the judge to tell the this case officer mason asserts she had a conversation at the scene with officer johnston and he said nervous moving around and something of our warrant those are the three phrases now officer justice says he said a little more but that's not what officer mason says she heard which is what's raul at to whether officer mason has immunity given that the case law requires particularized suspicion you know if we look at the cases that go the other way there's always the cases where the officer soft the subjects stuff something in their pants that's sort of they there's just a couple of quick more things the this dome messed up a salt that was mentioned by my opponent there was in the computer which the st office saw a statement that an a b had been charged with domestic or solved in municipal court but there was no conviction or anything like that i imagine what happened was it was an essay ason so it appeared on the officers computer that it wouldn't be a justice of the public but there's not even an allegation that officer mason the defendant here knew that so it it was what we're supposed to look at is what also in these one of things you have to ask is what well was there a sufficiently established in the case of phil versus bogan which i did in jacob's states very specifically no strip searches traffic you can't stop somebody for a traffic offense and strip search stop you just can't talk specifically was when i was an intake at the jail case and it was kind of a mixture of people and it says absolutely clearly no strip searches for traffic offense passed down is the officer for officer safety can go down the legs they can touch one time down the inner thigh because people do put knives and guns and everything like that on their plate the officer supposed to take the thumb inside run right down between the brass that's it that's a pat down that's what they're entitled to it i mean to fire the police or that's what i want to do it makes good sense what we're going forward to here is a actual haptic there is a patty through the bra of the breast that is a much more expensive than intrusive it the case law talks about fear and humiliation as being one of the issues as one in a strip search violates the constitution surely having one's brodeur hooked and then getting padded in that area would be create tremendous fear and humiliation and that's why we factual all tied up together we're going to hear all of them i would say that in one sense that's what happened i do want to raise one more issue which is this issue of rearrangement we do extensively brief this the statute in jury which prohibits strip searches except in certain circumstances and of course all this is based on the id have to have a warrant to us or the session of the warrant that's where all lives uses the word rearrangement of shook it which and i will tell you enough of these civil rights cases to know that shaking of the bra is something that's done under custodial arrest circumstances and of course the reason is that sometimes people hide hypodermics and things in there that's just the truth that's one of the things that really happens but the question is is shaking of that undergarment rearrangement and i assert that it is and that's why we really didn't get into opposing counsel's argument whether this missouri state law claims should go on which which which relates to allison we can get into that the district court stating that so flagrant violating the strip strips or act strip search statute creates reckless indifference to my client's rights but it really kind of starts with this question of rearrangement i'm asking this court to believe in lady admitted she had contraband in her attire so that case is similar to a lot of the cases which allow the strip search where there is either an observation of somebody hiding something in their pants which is the williams case i think that's why it's maybe brooklyn heights or but anyway the point is we don't have any of that here in mind and look at this case through the lens of reasonable suspicion because it requires that this court examine the tally of the circumstances in light of the officers specialized training and experience but it also requires an objective viewpoint here at the time start spewing thank you thank you thank you to both