portree twenty six hundred morning may please the court my name is kevin carlson of the university of michigan law school federal appellate litigation clinic i'm here to introduce a man durbin who'll be arguing the case for our client jeffrey doxi pinned down a naked mr doxey under the table in a police interrogation room while a six nine medical officer proceeded to perform a physical anal search there are few other exercises by the government that can intrude on  individuals privacy and dignity as severely as visual and general searches and mr doxey underwent one of these visual searches and then suffered the additional indignity in danger of being forced to submit to a physical in our search this conduct cannot and does not comport with the fourth amendment standard for invasive searches and for those reasons we asked this court to reverse the district court smile of mr doxies motion to suppress and remand for a new trial invasive searches or those that intrude on an area that has a heightened privacy interests they can range from visual searches of the iran general regions to minor intrusive and such as blood draws to the physically invasive search we have here and in this case the government has failed all three prongs under the record it does have evidence that the heroin was contained further than his body officer marshall testified that he was only able to see a glimpse of the plastic baggie after five officers had wrestled contorted m the words knocked out in the words flipped out after five officers had wrestled with mr doxey moving contorting his body that's when he was able to do so and even if we were to take the facts in the government's framing and agree that the object was sitting just outside of the in a cavity that is still an invasive search under winston versus lee invasive searches include even just a visual searches of the general regions and so therefore this court should apply that standard when reviewing the constitutionality of this search and under that standard the government has failed all three products first the threat to mr doxies health and safety was extensive intrusion on his privacy and dignity wolfish where the supreme court found that even visual inspections of general regions of prisoners who have significantly diminished rights are considered invasive searches that require a different review under the fourth amendment and areas that enjoy hate and privacy interests must be examined under the fourth amendment under a different standard in this circuit in poker united states versus booker has adopted that standard just to go back to the  initially is that right and actually the search commenced when he was pulled over on the side of the road and then yes he was leader transported to his girlfriend's house and he was also searched there and then transported to the police station how can he consented to the search of his offices of thought that they observed him pressing his but she acts together as though he was concealing something that direct so they had already made that observation pursuant to his consent and then they moved  basic factual out of what occurred craft your honor however plainly put the manner of the searches what were here the men of the search matters were not contesting that mr doxey consented to the visual search contesting that even when officers are able to perform a search they must do so in the proper manner which is why there is a different standard under the fourth amendment for invasive searches because that standard what's the standard and how didn't they  meet the standard looks at three prongs the threat to the health and safety of the individual the extent of the intrusion on an individual's bodily integrity and privacy and the community's interest in needing to perform an invasive search as opposed to being able to accomplish the police crime fighting cause in another manner and so in this instance the government fails are three of those problems and united states versus sherbert the court warned that serious questions would arise if a search was performed using a rudimentary very basic medical technique by someone other than a medical officer who were any non medical environment in the court stated for example if such a search were performed in the privacy of the police station house and that is exactly what we have in this case the supreme court's press and and pal and several other cases invasive searches are simply those that intrude upon an area that enjoys a high in privacy interest and so therefore even visual inspections certain that it doesn't threaten health and safety that intrusions not too severe and that there's a real community interest for needing to be intruding on this highway into privacy area i think we'd all agree that the area both of them  there was a threat to the indigenous health and safety even though a medical professional was performing that procedure granted that procedure was more invasive and here we have a last invasive procedure but it's being performed by a non medical profession or professional  unsanitary environment there is no indication that officer marshall put on sanitary gloves or there's no indication that when he removed the object it could have twine it could have exposed mr doxey to its contents which easily could have put him at serious medical risk which is why there are procedures in place for these kinds of searches to be reformed safely as the officers had to do was to detain mr doxey they could have arrested him on charges for marijuana they could have to team to him and they could have waited to obtain this evidence so you're not claiming that they couldn't lawfully get what you're saying that they had to do they have to get a warrant only if they wanted to have an independent medical professional at a hospital perform  then they would have needed a war are you saying that they had to do i that's one of the three options they could have done that they could have detained mr doxey and held him and told he had a bowel movement and it naturally would have revealed itself  y most importantly they could have taken him to jail as he requested we're there would have been medically trained officers on staff who are trained to perform these types of searches so what i hear you describe is something that was concealed in the anal cavity that had a chance of breaking and becoming a health risk and i just don't think that those are the facts that the court found i mean i think that basically the case proceeded on the assumption that there he was holding something between his butt that version of the facts that you still could have torn in being right outside it was in a cavity the contents of that bag he still could have gotten into his you know cavity or officer marshall and performing the search without any gloves or say to material could contaminated his you know region area could have scratched or torn his skin and which case the blood would be exposed and he would be able to get in that way there's just any number of ways that we don't know once you're dealing with an untrained person who is up and around th to even if they're outside of it even if they're in between the part cheeks and they're not going inside they're still severe medical risks there which is why in cases where search like this is necessary where the evidence is at risk for disappearing or there's a medical emergency or the not there is some need to retrieve that and that is what we can see they could have monitored and detained mr doxey there cases were indeed individuals have been detained for up to twelve hours until he had to go to the bathroom and if it's even if it's in between his box at that point it's going to have to come out and also there's where he could be taken to the jail and it could be rooted there the issue is that there is no reason why officer marshall had to have five other officers come and wrestle with mr doxey can twenty his body and or flick knock this object out of there without any sanity's sanitization without any safety measures and the issue is that mr doxies case may only  be severe of an intrusion but there are many other cases that may never reached this court where the officer takes it maybe just a little bit further and just gets a little bit more invasive and so why not try the line at a safe area that one allows police to do their jobs this is not going to inhibit officers from being able to obtain evidence in these cases by enforcing a fourth amendment standard on proceeding safely however it is going to protect the cases were officers get just a little bit more invasive or a little bit more invasive by making it clear that under the fourth amendment not only must the search be justified the search must be performed reasonably and this is something common to one thousand seven circuit cases where they deal with smuggling in the now i'm so sorry my time the search but it doesn't allow officers to perform that search any way they want and if it did then an officer could stop or probably on the street with no suspicion put him in the back of his squad car pinned him down take a rusty knife cut into his skin to get south and that would be justified by a poor condition which clearly is not the case so even though they must submit to a search they must submit to a search done in a safe and reasonable manner you'll have your three minutes  can learning or sally barons on behalf of the united states may please the court i think it probably makes sense in this case to start at the beginning which is what happened in the district court there issue raises a very different suppressi than the one that's raised today in the briefing there the the issue was really the initial contact with the defendant and whether or not the search that happened in the vehicle was improper and it whether the heroin was the fruit of the poisonous tree the issue that the defendant raises now is really not remotely the same issue that was before the district court although the record was developed as to the actual search itself so the government takes the position that plane error would apply to the courts review of this issue moving forward from that if i think it makes sense to discuss the p c the probable cause that was developed for the search of mr jackson's person it's worth looking back at the fact that officers began investigating mr doxey because two defendants in a different case indicated that mr doxey had traded them heroin forgot and the officers then developed another confidential informant who also said that mr dykes he had heroin and was in possession of heroin and was dealing heroin and after the officers contest surveilled mr doxey and they saw him doing what they believe to be hand to hand transaction and a gas station pulled his car over after they followed him for a little bit when they made contact there was a marijuana plant in the car along with the digital scale he had on his person fifteen hundred sixty dollars wrapped in hundred dollar increments when the police took mr doxey back to his girlfriend's house and she allowed them to search the house by consent there was a missing jar with heroin and in it and mr doxey was visibly clenching his buttocks which the officers know from experience over and over again is indicative that he is hiding in his in his buttocks area they asked him to drop his pants and so that they could do a search and look for the pair o and he began he began to do so and he allowed them to visualize the front of  as the court has noted but then backed himself up against the kitchen cabinet so that they couldn't see his behind at that point the officers had probable cause that he was hiding heroin on his person and as they didn't do a search there they took him to the police station they called his parole officer to find out to make sure that that he had a consent search provision in his parole requirements and only at that point did they say to him look we need to do a search your person we know you're hiding something there and he again agreed he again dropped his pants he was uncuffed himself dropped his pants and again allowed them to visualize the front portion of his purse and that wouldn't allow them to visualize the back and only at that point to the officers restrain him and as the court  noted they could see the bag eventually when they were able to see is behind and they flicked it out of his buttocks area there is no evidence other than one statement that the court found incredible and that is frankly ambiguous by mr do activity they absolutely had to restrain him and he fought with them to avoid showing him his backside but once the officers have the right to search him they certainly have the right to restrain him in order to do it the defendant's position seems be that this was not done carefully enough to preserve his safety but i don't think that's even remotely true based on the facts of this case the first factor that booker and winston me lead consider is the extent to which the procedure may threaten the safety of the individual and there was no threat to the safety of the individual here as the court has noted this is not a case like booker where the defendant was intimated and paralyzed and where the officer should have gotten a warrant to do the cavity search this is not a case like where there was a needle prick of the arm that should be done by medical personnel this was simply a and instance like many instances that take place in jails where the officers had to visualize the buttocks area of the defendant in order to determine if contraband was being there the second factor that booker looks to is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity and the cases that find that that behavior by officers and reasonable tend to be cases where this type of strip search is done in the open or in a place that is not private to the individual here the police officers did exactly what they're supposed to do they took them to the police station they did the search in a private room with other male officers such that his dignity was not unnecessarily intruded upon by the search and finally the the last factor that  is the community's interest in fairly accurately determining guilt or innocence here the officers had probable cause that he was hiding drugs probably heroin in his body cavity and under all those bases the search was absolutely proper under booker and under moving to counsel's second two points a problem is not the issue that we're contending here we're contending the search itself and even if this court finds that the first two prongs under winston are minimal that there's a minimal threat to safety here and that there's a minimal intrusion which obviously we contend that they're both substantial but if this court finds are minimal that still weighs in favor of reversed so kevin that the third prong is nonexistent here there is not a community why this search needed to be performed why the officers had to take these invasive measures there's three other methods that we've discussed here today where the officers could have obtained this evidence without creating any risk and without having cheeks if i go to the bathroom whatever is between my butt cheeks is going to also come out is what is what i'm getting at there secondly that most importantly they could have taken him to change all he requested to be taken to jail and he asked on the record take me to jail i don't you know i don't want to do this take you to jail and he did it and so i just know he would have been searched according to jail procedures which have measures in place to ensure that invasive searches are done properly and importantly the governor mentions that a phone call was made asking for permission to have a complete search of his person and this court has an opportunity to clarify what complete search of one's person under a parole condition means and complete search not mean that an officer can perform the search in any manner in any way they see fit in any location especially when it comes to searches that intrude on a heightened privacy interest and i see i'm out of time