very large number of true dramatic sad stories that are in this record book is the example i want to give you is directly relevant to the fourth amendment principles that you're be required to apply in this case for many years sheriff hennessey like most of the sheriffs in california for reasons of keeping invades staff and public visitors safe had a were turned out there out to the street had a policy before and at the time at the time that they were going to be placed in the general jail population when they were changed into prison or clothing of conducting a visual strip search it's in the record that if you were strip searches under the newer policy would result in more contraband dangerous contraband finding their way into the prison and that statement was made in january two thousand and four july of two thousand and five man was arrested brought to county jail man about my age who were it didn't there's no record that he had any drugs on him at the time after eleven days at the same school county jail he somehow managed to obtain a fatal dose of cocaine and died of acute cocaine intoxication and that's when your brief so it read that i the arson and unfortunately the example i gave the undersheriff recognize that they may never know exactly how that contraband made that dangerous contraband one of many items of contraband found through search fourth and here we have a much greater record and let me have anything though that ties it to the class the district courts i mean within the district court really is pretty careful i think in limiting the discussion to various subclasses we have this subclass identified here what's your best evidence in the record that there was a problem with this particular subclass as opposed to a generic problem but i went back through the record because i know that th if you are mentions the shoes there are eighty eight cases of dangerous contraband which is drugs and weapons in this record of them the vast majority there are some  found and hidden in shoes the vast majority in the record where it's identified and i can give you the number that i calculated from the record of these those eighty eight incidences that are body searches you would agree that a search of a sphere was found a body search is part of the routine strip search but i did look at what j j crew did i asked for that which is you know there were some of the car then found in shoes during the course of a strip search but that's not the biggest part of it sixty two of the eighty eight were found on the body of sixty two forty seven and this is in the record were found secreted individually not the bu class member and by the way when i say class number i mean non drugs weapons or violence we happen to be within the class period as defined by the court i think the relevance is broader than that which is non drugs o violence you haven't read before the class period starts we don't have non drugs weapons well after january two thousand and four because that's when we stopped searching on drugs weapons and i was but even if you're just looking at the narrow issue of class members look to page six zero nine of the records looked at page six of one cocaine powder that's a shoe case but as i stated the vast majority of these findings were brought in were not  ation he was found with rock cocaine in his buttocks and more than that what we know do i'm sorry i was aware of that however i do believe that this panel wants to make the right decision and it once you consider what the answer to judge you could his question is which is how much of this very serious some disputed it's a serious problem how much of this problem then is related to people who are not arrested for drugs weapons or violence look at the york record and you will find that five minutes on it which i would like to touch on as my question i'd like to come at this problem from a slightly different perspective than my colleagues have been question in my understanding your argument correctly you're referring to the portion of bill versus wolfish where justice rehnquist talked about the fact that even if only one search field contraband after a contact visit that is sufficient to establish a legitimate pain a logical interest for the strip searches in that case is that yes you're right and so is there not an assumption in all of the ninth circuit cases that there is some sort of logical connection between the nature of the original the jail has heightened security concerns when someone is being moved into the general jail population within once and i asked the court to take a careful reading of giles because they believe that the district court in this read it i believe that the always required reasonable suspicion and i don't read it that way the sheriff doesn't read it that way because what giles said page six seventeen is that balancing the interest in this case against the privacy interests of arrestees we hold that arrestees charged with minor offenses may be subject to a strip search only of jail officials possessed a reasonable suspicion and the reason i read that portion of the case is that it's clear that charles was doing a balancing test based on engine off with many cases based on the facts that case the facts of that case were in several thousand searches they found a pack of cigarettes and a knife over a number over several years this case and by the way the subs one circuit cases had no reason to focus on that balancing test because none of the other defendants created any record at in all of our cases that we first look to the nature of the charge for which the person has been arrested and that that somehow serves as a predictor or an indicator of whether or not this is the type of person who might be smuggling something into the jail am i correct in reading that into our cases i agree with that's ok and it is your position that that premise is fallacious that that nobody gets up in the morning thinking i'm going to get arrested today and therefore decides not to put contraband on their person or carry a weapon or whatever might be the case and if they happen to get arrested the question is whether or not without reasonable suspicion the sheriff should be permitted to strip search basically everybody who comes in who is going to remain in custody and is not going to be released on o r or bail are you  it's yes and that's that's close to the city's analysis of the reality and again i think that what the nice or good cases do is they look at the record and look at this record and what it shows much more so than any of the prior cases is that people come into the jail with a large amount of contraband even in this there answering that question marks we're talking about this of the legal analysis of our circuit cases seems to require at least a nexus between the offense as a predictor and something else that we don't have any cases that allow and the ninth circuit you'd agree that allow a suspicion was a search that is not tethered to the fans but magnitude of the problem to justify these intrusive searches so just to get to where i was trying to get with my questions so is is the city's position basically that notwithstanding premise your actual evidence of the contraband problem which i think on this record is beyond cal shows that the current method of trying to restrict searches based on the reason for the arrest is simply not working that there's just too many instances of contraband and weapons getting into the jail such that we ought to read visit the balance and recognize that the legitimate pain no logical interest articulated in fail to maintain the safety and security of everybody at the jail requires strip searching of all people who are going to be placed into custody and then mixed in with the general population i agree with that i agree with that statement however i don't think that we need to change any is that you can't strip search someone while they're waiting for bail when you know that they are going to be out of the jail likely out of the jail in a few hours that's the other main difference apart from the record and there's two main differences and then they don't want to say the least little bit of time if i may for a rebuttal there's two main difference is the record the other is that none of these plaintiffs would have been strip searched and sure and if she's in jail the act  up plaintiff's where protesters from the time of arrest to the time of release from the detention center i barged group was released in five hours they knew that they would be eligible for city to release that they weren't going to be transferred to the general joe population they strip searched and anyways the policy in san francisco has always been not to conduct a front and search on minor or offense arrest is but to wait give them three or four hours minimal at times much longer than that to see if they are the people who are likely to be transferred to the general jail population and which time the ninth circuit cases do recognize that the jail has a heightened interest in security your environment over time thank teeth law that is the premise that there are certain class of fences for which we may presume that a person arrested for a minor offense simply does not pose a risk to smoke yes i believe that's that's the case and if that's the case then how do you explain the fact that we've got all this contraband in the san francisco county jail not withstanding the fact that more violent offenders are clearly being strips or well that's a good question your honor and most of the statistics that were gathered in fact were gathered during the time that the g a o was strip searching members of this class as well now the words they were strip searching everybody going into housing one not everybody apparently there's still a group of people who who are not being stripped of my right at the time that the statistics were gathered that showed there were fifteen hundred seventy four fines by the canine unit throughout the jail that was during the time that the custodial search was in fact being conducted precisely the search that is attacked in this case now the words  this group of minor offenders who were not charged with a crime relating to violence drugs and weapons had not been on parole or probation had not had any kind of previous incident within the last five years and for whom according to the defendants in this case there was no reasonable suspicion to search nonetheless they were being searched when they went into housing so if we fell i think if we strike down the policy then it's going to get worse  well no your honor because the during that period of time no contraband was found on the members of that class now if i were the sheriff i would start looking at other sources of contraband being introduced into that jail and of course we know just from reading the newspaper that many jails have found that there are other sources including their own personality but the question to you differently if we rule in your favor this case what's the difference then between strip search in all of the inmates who are delivered to the custody of the united states bureau of prisons well i people who are delivered i assume are already convicted and serving serving a sentence if that's what you're referring to i'm not sure that the status of conviction makes any difference if we're talking about preventing smuggling into the jail smuggling comes because someone comes from the outside and gets it and the question is what are the legitimate measures that the sheriff or the prison warden can impose in order to address a very real problem that i think we can take judicial notice of in this and in other cases exist in every correctional facility in the nation well i think the sheriff failed to establish  the premise and that is that members of this class were in fact responsible for any contraband and we're talking about a very short period of time your honor we're talking about pre arraignment we're talking about the time when a person is actually housed until the time or let's say classified for housing until the time that the that that person is arraigned and in many of the cases as we've seen in the record the persons are in fact keep saying it's minor offenders for whom there's no reasonable suspect in the believer concealing contraband if the evidence were sufficient that in fact contrary to belief they are in fact trying to smuggle contraband into the facility then there would be some reason to do something else now what the courts have said is that well the decision to placed the person into housing is not itself a triggering  point to determine that now we have we have reasonable suspicion or we have a significant institutional need to strip search him because there are alternatives and he clearly we're talking about eight and institution that can classify persons who and all that and it's just not getting the job done and that's what i hear the city thing is that the measures that are currently in place are not preventing deaths in the jail from drug overdoses or weapons from being smuggled  that is perplexing your honor but it doesn't point to the need to strip search this class and that's what i was attempting to suggest that one might look at delivery men who are bringing things in the staff other ways th exactly so one doesn't it with one has regard for the extremely humiliating intrusive nature of these kinds of searches and other cases described that and detail and it's there's no question there they've said the decision to strip search on the basis of the charge that this felony or misdemeanor is irrational it doesn't it doesn't make any sense and that is precluded the decision to strip search somebody because they haven't been able to this is a rational and we're going to preclude that the decision to strip search somebody soley because they're going into housing is irrational and we're not going to permit that so we have some good guidance and i think a sheriff understanding the law started to apply anywhere near the same methods to his staff going into the jail they might make serious inroads in the smuggling problem but it's not by focusing on this most vulnerable class that's most entitle to protection in all the cases that we've heard of the protection would you agree it's intended for this class as well we're trying to prevent them from being harmed once they get inside the jail and obviously we don't want to be getting drugs either from sources inside that you know there are other ways to prevent them from being harm to your honor and one of them would be clear they'd just put them in a in the place where they're not in and i in touch with those who have access to more talking about san francisco county here but the problem is you want us to announce a rule for the entire ninth circuit which means that i think that we need to be thinking about how this is going to play in the pogo counties and rural county jails where there are a fair fight from one town i appreciate and i cell or house her that wasn't that was not adequate and they cited smith montgomery which was the case that said at least during the brief period of time up to the time when a person has an opportunity to see a judicial officer we're not going to strip search unless there's reasonable suspicion that has been a good standard that does work well distinction that you're making or one is you know how long is this person reasonably likely to be in custody and for somebody who is going to o r or bail or have an initial appearance that may relatively short but there's also a distinguishing factor which is whether or not they're going to go into the general inmate population and go into custody after time after  instances there are no charges even filed because that distribute turney has had an opportunity to look at whatever was came in but let's assume that takes seventy two hours the sheriff still has the practical problem of where do i put this person and if the answer is all i've got at that point once they don't bail out of county jail unit number nine where they're initially process is you go into the general custody with all of the other inmates who are serving sentences that could be many months where you know your honor since january of two thousand and four this sheriff has done just that placed this class of persons without strip search into the general population prior to arraignment and not a single instance has been brought before this court where any contraband has been discovered as a result of i thought i had the one where the guy was arrested for public nuisance the six forty seven f but there is no evidence as to what this person's prior history had been and they had an opportunity to present that now the words had he in the last five years been brought in on a charge relating to drugs weapons or violence had he been on probation or parole was was there reasonable suspicion that is not documented also we don't know that this person is a member of the class we have one we do know i'm looking at six o three i parole or searchable probation who have been previously arrested for crimes relating to violence drugs or weapons and or for whom there was reasonable suspicion believe there concealing something for instance if this person was acting strangely that would be reasonable threshold is very low there's a very low threshold they can strip search almost any body they want if they can articulate a reason to believe a person might be concealing contraband or weapons what we're saying is says wolfish the only basis for conducting the search was that there had been a contact with it it didn't matter what the inmate was in jail for yes well there are two two points i'd like to make first of all that i'm trying to focus on the institutional security needs of inside versus outside and i'll just jump right by the first one i mentioned it's a group of people that's different from the ones that are before you but the second is an opportunity that the  no control over what visitors bring in unless they adopted a strip search policy that related to visitors so if they're going to have a contact visit where this sitters who who can meet with the the person who's in custody  not controlled in any way then it is a reasonable inference to believe that there is an opportunity for exchange and if there's no strip search possibility there i'm not saying it has to be exercised in all  the presumably the inmate will be emboldened to arrange for some kind of transfer of some kind of contraband that i believe is what underlie underlay the court's analysis how is that different though from the question that i think i posed earlier about you know an individual may very well have been arrested for shoplifting and that's the only thing we know about that person but why should i presume that that individual is not necessarily going to be carrying some item of contraband that he happened to have on his person at the time he's arrested for minor offense well i think that there is some balancing that's that's saying they're professional smugglers and i'm just saying how is it that the sheriff is to know if that person is not going to bail out and is going to be mixed in with the general population why should we presume simply by virtue of the fact that they were arrested for shoplifting that they aren't necessarily in possession of an item of contraband because we look at the invasion that a strip search and the intrusion that a strip search entails and we say we make a societal judgment that these people who are arrested who are in this the purest class we're not going to humiliate we're not going to subject to this just because there is a mere possibility some a theory o for this class i would say that they would have to actually come forward and say that there's a significant percentage of people in this class who conceal contraband and we have to get it and we can't do it in any other way if they can show that and i think the court was below was open to that and said let's see the evidence and concluded there was not and just there's one of the point i want to make with this giles because giles said oh there were eleven instances over eighteen months are where there are three thousand five hundred strip searches were contraband was discovered in the city of san francisco over a five year period when two hundred fifty thousand people were booked there were only seventy three instances where persons in this were contraband was found during a strip search that's in the record only seventy three and judge bryer tabulated that only seventy three instances over that five year period that is one tenth the frequency with which contraband was attempted to be smuggled in or was contraband could flow in intentionally and plant where ok you're going to call up your sister in law and you're going to have a visit and then the drugs are going to be delivered to you and then you bring them back to the the housing unit etc that is a clear attempt to interdict some kind of conscious drug smuggling but in this situation you're talking about the the the least conceivable group of people who could be who already had these items  creted in in a body cavity because they were arrested and just brought to jail without an opportunity to take some precautions to stock up let's say because they thought they would go into housing so you're talking about an incident that happens with no planning and then you're talking about the least offensive and then you're talking about the shortest it would be time tech it wouldn't protect against a deliberate smuggling effort that essentially used as mules somebody who deliberately went out and committed a minor offense in order to get arrested and then refused to be well of course they would probably qualify for it they might qualify for certain release and they'd have to refuse bail and then they'd have to assume that they were actually going to go into housing before being arraigned and of course we know that if you're taking a group for rainman then somebody is available they'll go there as opposed to going in the housing i guess you're right one could because it's not medically possible ok is that theoretical possibility  sufficient to trample what are well established fourth amendment rights to be protected against unreasonable searches and i think our courts in this circuit have said no thank you counsel search cases are not jail cases and that's the supreme court's schanberg case if the risk of harm is substantial and real and the response is calibrated to that risk then this search doesn't violate the fourth amendment so basically are you really saying that in places like san francisco where pretrial detainees pre and prearrangement detainees are to be housed at some point with the general population you can't be searched while you're awaiting bail we don't do that you can't be searched if you're going to be eligible for site release and we know it's very unlikely that you are going to be put in the general geo population about those who are who are destined for the general jail population who are members members of the class and you're saying these class members i mean i'm not saying you may be maybe right maybe wrong but your view is that these class members really don't have any right to privacy no you i don't believe it has to do with the fourth and them in analysis and in smith's verses montgomery i want to respond to plaintiff's citation of that  for the proposition that that if you really arraignment your short term detain the first well the sheriff has no way of knowing if you don't post bail and you're not eligible for  long you are going to spend in the jails custody it could be merely a matter of two days seventy two hours under state law into your arraignment it could be longer as judge thomas pointed out if there's an intervening weekend holiday it could be even wong or if you remain in custody until trial once and it seems this go it's been known to be years but in maryland they said it was twenty four hours because they have a different statutory framework in maryland you have to be brought before about and what this appeal is about for the sheriff is what he considers and what one forcemeat considers a very important policy question so are you saying that if you prevail on this appeal you're going to return to your old policy if we prevail appeal because this court has found that the fourth amendment is not offended under the former policy which is there not front to strip churches but only after you're likely to go into the general joe population the record states that safety is better served and that is the sheriff's top priority from protecting everybody with these searches so i guess the answer is yes probably probably ok