is the way that the trial who are viewed the standard of reasonable suspicion the th amendment standard for a violation in this case at oral argument on the summary judgment motion in particular  judge was concerned about what the videotape should miss callaway of course attended video visitation for about ninety minutes that entire period of time there was video surveillance with two camera views a view of while there were some separation among the defendants one particular officer investigator lukey was the deciding official who decided yes ms callaway must be searched under these circumstances it's appropriate to ask her to submit to a strip search the trial court looked at the reasonable suspicion standard i think rather superficially here are the actual standard as it's been set forth by this court and other courts around the circuits around the country is that a warrantless strip search of a prison visitor or in an institutional setting is only appropriate if there is reasonable suspicion that the visitor in question is possessing or intending to introduce contraband into the facility and the trial judge's analysis of the reasonable suspicion standard i think never went beyond a superficial well was the officer who was monitoring the video surveillance in this case and remained his observations to that siding section i think what's undisputed is that loki and brown did not observe callaways conduct did not know anything about callaway before that day had received no specific intelligence regarding callaway they had specific intelligence regarding the offender  his mother in law or something like that where they were going through tobacco tubs one pound tubs of tobacco over the fence of the facility and an inmate was going to collect it later had nothing to do with visitation had nothing to do with ms callaway we wanted to get contraband well there was a suspect i think that there was no evidence of a scheme in place at the time that ms callaway well the only thing they had was an anonymous tip mr low key indicated he could not remember who gave him the tip all he could remember is that someone told him in passing in the you are travis is moving two days before is moving it didn't include his last name or sticking to the bridge well no that's not necessarily in mr low key actually give testimony on that he said it could mean somebody was moving something within the prison it could mean something someone he was trying to move something into the prison from outside we had some articles and a good deal of publicity in the area between twenty million one hundred and forty two thousand and seventeen that a lot of contraband was coming into the prison and a lot of pull out you actually i think that's correct or are and we had testimony from the assistant warden in the case on deposition that said you know what the investigators the ceo's we get a lot of garbage hips you have to check into them you've got to do some investigation before you can marijuana in her tampon that was the tipping leverage and you know understandably i'm not arguing that lever it's not was incorrectly decided i'm not arguing the lever it's not the correct standard in fact  contraband into the prison that standard is actually incorporated into virginia department of corrections operating procedures for deciding when a strip search is appropriate there has to be some indication that a person is trying to bring in contraband and there was no link between miss callaway and any contraband jeremy nelson the man who monitored video for eighty seven minutes well miss callaway had a pleasant conversation and visited with her  i think that that's where the trial judge invented the province of the fact finder and usurp that role for herself i think that the video speaks for itself i elicited an admission from mr nelson who is monitoring the video that  he detect presence of contraband or suggestion that there was contraband on his callaway and i think what he communicated to mr moti was well she seems to be making some suspicious movements that is not a report of criminal misconduct that's not a report of violation of the visitation rules in fact on the video tape which i think again speaks for itself and i commend the court to review that thoroughly at least look through it once in the same frame as miss callaway that mr nelson is surveilling the entire time in the same frame there's another visitor who very clearly has her hands up her shirt hidden from view from the cameras hidden from view from the corrections that were circulating around the room if miss callaway had been acting in any way it was inappropriate that somebody in the room would have noticed the st indication we had from the officers that we interviewed and from  assistant warden miller is the typically have a visitor is behaving in visitation in a way that's going to get them rejected or current for search or whatever that officers on duty well let them know hey you can't do that suspicious in her movements there yes and loki said he had done this a couple of times before and both times it proved correct well loki is relying on nelson's view coupled with the tip which he said he began hearing a few days before that he was on the move and the prior knowledge that he had made an attempt to introduce tobacco and into the prison and so loki is tells nelson keep a watch over any visitor who comes shar nelson looks and in his judgment and it doesn't look like he knew any of this other background information maybe it did but then his other officers instruction to search or and it seems to me the focus ought to be did lowkey have a reasonable suspicion based on the evidence i was collected and some sure we can isolate each fact and say did this show there was drugs did this show it was a collection of information that created a suspicion at least according to yes your honor i think that's generally correct but i think that the way you presented this facts i think it's generally correct the sequence of events the loki or a lot of what nelson told him and lucky also had these other facts that he thought he knew in his mind also only told him she was the most tip out of the blue who says he's moving may have done something in the past someone comes a visit she's been through a criminal check she's only been there twice and you get a you get a status as well she's messing around with right it seems it seems your honor that this is probably the weakest case that the commonwealth kind of put on here because you've only got one witness who is remotely monitoring by video he has an uncorroborated  my clients and this should never have happened sometimes people think they see something and they don't really see something we also can serve well that's the question i think the trial judge i think the trial judge yes she did sign a consent form your  in the decision to search him scalloway we believe that the decision to search miss callaway was inappropriate the full facts that were known to them at the time lookin round had no independent knowledge of anything regarding  praised the court michelle callen for that and to pelee i think it's important in this case to keep in mind the task that prison officials have on a daily basis they're faced with the difficult task of balancing the interests the rights of prisoners and their visitors against important security concerns most important in this case is the you know as it turns out what was done was a constitutional question as to whether there was a violation and so the issue we must address here is whether there was particular  officials do totally agree with you absolutely have a tough job but we got a case in which a lady comes in and she's been through a total search she been took total criminal investigation she's been there before has nothing  this woman has anything on or she goes into this this is this facility and based upon the statement of someone she's messing around with her clothes you then essentially based upon a with a tip that of being credible because you don't know who gave the tip you don't know the about reliance you don't know anything about the tip other than he's moving in huge search a to a strip search you make a take everything off put in a room you had a tip from someone who told you this person is going to do this and it was a it was one it was a substantiated tip you knew it was coming from hope it here you have no clue who does tips from this anonymous is maybe some double triple hearsay this come are those facts that you maintain that gave these officers a reasonable suspicion that there was some particular oz reason as to do this fifty five facts on fifty five on this record your honor the st one is the crop or drugs and he's done it before therefore it corroborated it's a piece of crap writing evidence or on a cracked and so in addition to that there is other evidence in the record as well for their corroborating at was that so in addition to that it was both attempting through a visitor to smuggle in ninety five strips of suboxone and suboxone strips are are small little strips about the size of a breath of little breath strips and so those sorts of items are found where i mean so i guess if you want to look at it and we are looking in the light most favorable when considering the circumstances and when there's a tip that somebody is moving and there's a desire to it's reasonable for an officer to take a closer look when somebody two days later comes to visit a particular person where there has been the step related to you circumstances but i think taking a step back it's also important as as your honor judge when noted when my friend on the other side was speaking there's also the qualified immunity piece of this case to the extent this court is inclined to find a know case justice term it was a summary reversal of the th circuit defining the right at too high a level of generality i think it's notable on th exactly and there are tons of other cases that deal with not only don't you have a point if it's something that's obvious and fairly well established in that that thing is true and it can come from c before you do it but nonetheless these cases all across the country and i think this is one you can get pretty close to saying it's going to be hard to say this is not clearly  step that the that it depends on how you frame the issue but i think when you have a person to come in and want to come in she appears to be reparable in every sense of the word she's just going to visit someone in prison she's already been through a criminal screening tests and you subject her to that type of intrusive search the most i think any i'm not speaking on behalf of women but i speak on behalf of them and i know i would you know to make you take your clothes off of to make you take out in her instance a tampon to examine anal areas and that officer would not believe that that constitutional right to be free from that is not clearly established i know what the case law is going but commonsense is going to come in this play one of these clearly established you can't do that i think i think part of it is a question of you know going back to the reasonable suspicion standard around america complete my response these are extremely difficult cases  honor you're completely right at this is a difficult situation that all the parties at issue are in and it's the notion of a search that involves removal of a tampon is extremely uncomfortable i think it's important to to take that in light of the challenge th officers have trying to regulate the difficult security concerns and presents the effort to smuggle these tiny little strips of drugs into prisons and the security concerns that arise from that offenders have been have been known to immediately in just those drugs upon upon transfer and so that's why it's important to step in quickly to try to prevent these sorts of situations and that has caused overdose and violence and walking a tight rope here they realize it's the tip and none of the other information indicated particular a suspicion that mr callaway was engaged in some sort of criminal scheme or in response to  well i think that in their briefs your honor they indicated well you know the court didn't rely entirely on the videotape because i went through a full exposition of the cites to the record on the videotape provided by jeremy  times indicated by german notes and so the commonwealth the defendant's answer to that was well the judge didn't really decide this solely on the basis of the videotape they had these other five facts well as we have discussed in the course of this morning none of these five facts provided particular suspicion as to miss callaway talbert history of smuggling tobacco and nothing to do with her low key didn't say even teleports last name just travis is moving that doesn't even that's correct your honor and the prior incident with however involved his i guess his mother and another inmate and a friend and it didn't involve anything to do with visitations so there was no real tip no real indication that callaway was involved in anything and honestly your honor i think the point that i made in my brief about the scott versus harris decision by the u s supreme court that sometimes it's ok when someone's case is completely destroyed by the objective evidence of a videotape or recording or something like that you don't necessarily need to go through the whole analysis of looking at all the facts in the light most favorable to the nonmoving party but in this case those factors were not if anything the videotape is a toss up i think it's a fair question for the jury is what you see these eighty seven minutes of videotape that was viewed by nelson and reported to loki is that something that indicates reasonably suspicious conduct by ms callaway indicating she's bringing in contraband or is it  innocuous conduct that she's adjusting her clothes and her hair and you know doing that kind of stuff over the course of a ninety minute sit down with a prisoner where guards are circulating throughout the room constantly there's two or three guards up a diocese in the front of the room watching for suspicious behavior there's someone right behind miss callaway in the video frame who has her hands hidden up in her shirt down in her pants jiggling her leg looking all nervous the whole time for an hour while callaway sat that often times they get garbage tips where an inmate is trying to point the finger at somebody else to get the light off them i think that certainly could have what could have happened here it certainly makes sense it's the most simple solution of what went on in this case is that perhaps lo got played he overreacted and he took it upon himself to go you know what any reason just give me any reason at all in and what did he say was the reason that he visitation in the st place we just wanted to talk to her well you know they of that room without a word they take her cross the door pop a couple of secure doors and move her to a place within the prison complex where inmates are allowed to run free they immediately accuse her we've got you on camera we saw you trying to unbutton your pants we've got you red handed what do you have to say about that and she said i don't know what you're talking about i didn't do these things i would never do these things i have a sister who's a police officer i would never  believe if you want to know what research she contests your honor she disputes she says she was never told she could leave she never told that she didn't have to answer their questions she said that i was terrified i did exactly what they told me when they told me to check these boxes and sign my name on this form i did and that's why the judge in the initial decision in this case left open the question of whether consent was voluntary or involuntary i think it's a question for trial  question of course our standard that everybody seems to be focusing on here which i think is probably right is reasonable suspicion yes your honor and the prison officials have a right to search if there's a reasonable suspicion is that standard the same as the terry stop reasonable suspicion i don't recall terry stop it's reasonable suspicion or probable cause but it's reason in the prison context whether you're talking about a strip search  facts that give reasonable suspicion and in this case you have a conglomerate of information pulled together through nelson loci and brown about that and the constitutional standard reasonable suspicion that is applied in terry is at the same as this reasonable suspicion i can't say you're right i'm sorry i haven't seen terry discussed in the context of these prison search cases i think that the reasonable need probable cause like you have on a war reasonable suspicion yes because of the circumstances i'm simply asking you is there a distinction in the constitutional law as do a reasonable suspicion is there reasonable suspicion that the person that you're wanting to search is trying to bring in contraband to the prison that's a specific question my question is talking about a constitutional standard ok question is reasonable suspicion but i reasonable suspicion standard in the prison context and so you have to have articulable particularized facts showing indicating that someone is trying to bring in contraband before you search from prison contacts because think about it in the present cont everything is controlled by the cia it from the parking lot to the entry building to what happens in visitation to who gets searched the prisoners augment searched after contact visits thank you mr thank you so much on down great