may please the court opposing counsel my name is clear could go on and on behalf of the federal public defender i represent julius ruff and in this case i would like to reserve units for about oh please very well mr ruff and sportsmen and rights were violated by both a search warrant lacking probable cause and a highly intrusive an unreasonable body cavity search there is no search that puts more issue on our humanity and our dignity than a body cavity search and for that reason i'm going to start with my nd issue which is reasonable  between banks and booker is there was a warrant in one and not in the other one would i be would that be a reasonable distinction of the cases with all due respect your honor would not the intrusion in booker was much more severe in booker that patient was not only given a digital rectal exam he was also partially paralyzed and then intimated it was a much more invasive procedure the defendant in banks on the other hand although he did did the x ray and banks but what but ok so booker is more extreme it seems to me that the facts here are not quite as extreme as booker you may just agree but there was a warrant here there was no warrant booker but more extreme facts why don't we just come out on the bank side of the ledger thank your honor and i don't disagree that booker is more extreme i think that would be an unreasonable position for me to take but i do still think that based on the procedures that involve penetration but we also have a disagreement when he arrives between the radiologist and the attending physician about whether there actually are foreign bodies or stool in his body and then we have some of his being forcibly incapacitated now judge when determined that force was and there was no incapacitation now of course this court reviews that question for clear air but respectfully judge when wasn't there there because we know from the record based on this defendant's testimony that he was both for the procedures he was placed on a bed by medical personnel and law enforcement officers not under his own steam and that he was come to the bedroom the course of those and so i think that as the interests of nature there is testimony during the suppression hearing that he actually called out his own i beat which i think says something about the distress that this gentleman was experiencing during the course of these procedures and then if we're talking about dignitary interest which that nd factor goes to we also know that during his initial assessment the doctor and the police officers were joking about the situation and joking and mr ruffin's expense i think that also goes to dignitary interest so we look at the spectrum of authority and you know it's very limited there are a lot of body cavity search cases out there  at the spectrum of authority the cases where either this quarter the supreme court has said nope that's reasonable that's not very invasive or cases like banks where we have not invasive medical procedures and there was also a bunch of additional facts and banks that supported the search like the defendant had previously concealed drugs inside his body and then you have a smirk or where we simply have a blood draw now those are cases where either this court of the supreme kris said yep that's fine that's reasonable on the un reasonable ness and of a spectrum and granted some of these cases didn't involve  you think that it's under reasonable it's per se unreasonable if you could give somebody an x ray and don't do it and instead resort to the things that they did in this case i think it always the totality of the circumstances assessment this court to make based under the winston factors i'm not asking this court to make a bright line rule i do think in this case we have a situation where it seems that the non invasive procedures used in banks like laxatives an x ray would be equally understand that if he leaves going to get up and say well there was a medical necessity because at the bags of burson there had been drugs he could've overdosed and i well i would say two things in response that one that risk would be present every single time there's a concern that someone is concealing drugs on their body so that can't nature not that extreme major but there was still a health concern what dr rebel testified to was that the object could be passed naturally again without medical intervention and that by using a spectral speculum in an attempt to object the primary risk of that kind of procedure is rupturing the back now that's important because he then also testifies that really the danger of not trying to extract the object or letting it stay there in the past naturally is about equal because the risk is always about rupture and so now we have a doctor or a nurse performing a procedure that the doctors identify although it's a minimal risk still creates a risk of rupture which is the real risk of harm there but that also like to talk about the rd factor which is the community interest he or she had witnessed a drug trafficking abet occurring between mr ruff and and other individuals and that if that evidence without the need for the actual drugs could have either been now sought to counsel we may have lost judge cook i'm not sure if ok counsel you may resume your argument thank you your honor i think i was speaking about the rd prong and i was simply pointing out that because a source of information had other observations about drug trafficking that could have been used either at trial against mr ruff and without the need for the actual drugs or could have been used to build a further investigation against mr ruff and we know that's true because certainly the cases that my office use and the cases that this court is frequently reviewing involve situations where confidential informant or source of information observed drug trafficking and then they built on that from with either surveillance or an undercover buy or st actual staying there are lots of other ways to gain additional information so that rd prong again is a mr ruff and say for now i do want to use the last few minutes i have remaining here to talk a little bit about the war in itself and i'm going to skip through the probable cause analysis and talk st about good faith because that was really what the judge when made his decision on and although this court is reviewing this case to know about i still think it's important place to start the good faith exception should not apply in this case for two critical reasons the st is that the affidavit itself insufficient support for the reliability of the source of information and in fact the government concedes as much in their brief in page twenty they say that yes reliability of that source was not provided it and the court knows from cases like we have are and lots of other authority that a reasonably well trained officer would have to know the search was illegal despite the magistrate's authorization here we have no support that the source of information had a reason to know but even over and above that there's been no independent cooperation i want to make really clear the question is not whether there is an independent corroboration as to drum track the question is as to whether there's been independent corroboration that mr ruffin is concealing  his body and there's no evidence of that after mr repton we haven't pulled over by law enforcement his vehicle is searched that i know drugs and he's interviewed and he denies concealing any drugs so there's been no independent cooperation and that over and above that and i d the car the troubles i mean some of the other things are corroborated so you're saying we have to actually corroboree that he's got that he adjusted the drugs well give the court an example  in united states versus banks although there was no warrant but i think the facts apply to the situation in that there was independent corroboration of banks had there been a warrant because one he was known to law enforcement who have previously concealed drugs in his rectum he had a history  all you know further corroboration of there being a can there be concealment of drugs in that person's body and here we don't even have a source of information was able to establish that for us just giving back to probable cause for a nd overweight so could the police so you're saying he refused you know if you had refused to bend over or whatever but that would have been that would have allowed them to do the search but could they object to did they have enough to know we're not contesting the stop itself or the questioning of mr ruff and it's really just about is there independent cooperation to support that bare bones affidavit for the search of his body that very intrusive search and i do want to point out to the court that one of the other problems with good faith here is that then weaver this court made note of that that this court did adopt it because it wasn't at issue and we've heard it at least said that's a good point the court also noted that in dicta and baxter when he was talking about leon so here is the author of the opposite affidavit is task force indicates an additional officer officer kelly came to assist with the drafting of the search warrant and then it's officer kelly who transports mr ruff into the hospital was executing on that search warrant and barrington which is court favorably noted obtaining a warrant mr often was taken to the hospital where medical personnel performed a reasonable search that recovered one hundred and twenty grams of a mixture of heroin and functional therefore this court should affirm the district court's denial of ruffins motion to suppress on the analysis when it comes to the reasonableness of the search an affidavit is judged on adequacy of what it does contain not what it lacks the government concedes that the affidavit here did not include information related to prior tips or reliability from this knowledge and for however the informants information was sufficiently and independently corroborated by police investigation if you look at the affidavit itself which is district court document twenty gosh containing the drugs in the next paragraph and the company will inform and heard from mr upton that he had to use the restroom and he saw mr ruff and tried the restroom holding that bag of drugs where he remained for approximately twenty minutes and when he returned from the restaurant he no longer had the bag so that's the information that the informant provided respect to the transaction and what happened in the house subsequently when rockland was pulled over for his traffic stop the investigators canine alerted to narcotics in the vehicle which is why at that time they did a probable cause search of the vehicle but were unable to find any drugs in the car or on mr r immediate person based on a pat down so using the information from the confidential informant as well as the independent police search of the vehicle the procedures and was there any testimony  says in my experience as a law enforcement officer when a dog hits and we can't find the drugs they are off and they've often been in just a day or something like that so there is no facts there were they did obtain the warrant and i mean i don't lurch and no drugs were found which is why they subsequently appeal to warrant for the defendants per se and with respect to that actual statement not being in the affidavit based on the totality of the circumstances or view i think events aren't going to be perfect and when they're made in the haste of the investigation an officer isn't necessarily going to pete be able to put in each and every kind of magic language magic phrase that needs to be put in here but a reasonable person would still conclude that because the drugs could not be found on mr ruffin's immediate person or in a car they were likely then hidden his body are there any cases that say that i mean close to saying that or that it's common sense or something like that or are we just yes so what you're also the banks case like i bond i mean it's like i mean there would there were some there are a few additional facts there i suppose other than just the dog hitting and not finding the drugs and again although not noted in the affidavit itself marijuana and there were other indicators that supported their decision to to do the search at that time so the government's position is that based on the corroboration that the investigators did using the confidential informants information the affidavit did establish probable cards not just for a search warrant generally but for a search found suppression she'd still be denied under the we on good faith exception because here the there was enough probable cause that the affidavit was and so objectively and reasonable to be considered bare bones or conclu now like to turn to the reasonable ness of the body cavity search the search here posed minimal safety risks to mr ruff and it was authorized by the search warrant we just discussed he was not forcibly incapacitated search the extent to which the procedure threatens health and safety the extent of the intrusion and the community's interest so i want to talk a little bit more about booker versus banks again in bulk or as we previously discussed there was no warrant and the methods that were used were very severe the defendant was partially paralyzed and intimated for a significant period of time in order that for them to perform the search and this court and booker found that those methods post serious medical risks and really invaded the defendant's interests as well as the investigators had the option to do other things like x rays or lax es and chose not to so it's the double combination of not having the warrant and having the very severe measures taken in banks they didn't change a warrant and they only use the x ray and the laxatives and i want to point out court in booker specifically noted that it was no not addressing cases that were materially different like when officers had obtained a court order so right away you have the significant distinction from booker where it's not speaking to the same circumstances that we had here in rough and and if you go through just a brief timeline of what happened to mr rock and at the hospital the actual medical procedures that were performed took less than that the the use of an x ray or a laxative could have been less invasive and done st but in this case based on what the nurse saw it was believed that she could attempt to manually retrieve the objects herself but she was not able to and once this was communicated to the attending physician that's when he ordered the x rays was able to confirm the three foreign objects in mr ruffin's anal cavity and then decide to use the and the people that were in the room is the testimony from mr ruff and himself so we don't have a contradicting position there but even if that is true and what mr rahman indicates is true because there was a search warrant and because the methods that were used for reasonable that is what is going to carry the weight in the end of the day as opposed to any sort of jokes that were made front of him and i  we don't by any means say that's ok but i guess the war what is the warrant why does the warrant matter exactly it doesn't seem to fit within the three satyrs doesn't the three the three factors seem to go to the to the search itself or how the how the search itself is carried out so well there's no one hurt address the warrant in the context of the nd factor which i think makes sense because you're looking at the degree of intrusion into not only the dignitary interests of the defendant but also the privacy interest and the privacy interests are going to be affected when you have a search warrant saying we can actually do what we're going to do so i think it does make sense to consider the presence of the warrant in the context of the nd act or any risks that were posed to mr ruff and based on the math it's happening which again goes to the st factor that the court would analyze here and not only did the actual procedures so the digital rectal exam the specul the x or in the laxatives not or the subset and of those excuse me not pose significant risks to mr ruffin's health but dr revel himself testified that the most significant risk was the fact that these drugs were inside his body and so at that point medical personnel their only concern and dr rebel said this that he treated him like any other patient their only goal is to get those items out of his body so not only did the methods not prove to be a risk but compared to the fact that the drugs were in there and that was really the concern and lastly when it comes to just rd factor with regard to the communities and trysts on the district court noted that here like in banks there was limited other evidence connecting mr rushton to the drug trafficking and yes although we had the government did have the information from the confidential informant the drugs themselves are don't i was i'm a little puzzled by that it just seems to be kind of an offhanded remark in the opinion but but then he jumps into good faith is that why he didn't think that there was probable cause here why our position would be that the probable cause determination whether it's the body cavity or not is is based on the totality of the circumstances like it always would be and we understand that judge when did he did not in me and make a specific finding as to probable cause and jumped right to the good faith exception with respect to this court we're asking that you determine that the affidavit didn't fact establish should probable cause however if necessary the leon good faith exception would still apply because the officers independently corroborated the information through surveillance through questioning through the search of the vehicle  and therefore acted in good faith upon the warran this court's analysis with all due respect to miss healing's is also outlined in the briefing the source of information did not say it is not presented in the affidavit that you saw mr ruff and take a bag of drugs into the bathroom that's not what the affidavit says so that that's not the case additionally there was some discussion about the independent corroboration being became an officer and i believe judge no bandying was asking wasn't this miller's the vehicle and i just want to emphasize this was a canine alert to the vehicle they searched the vehicle they found no drugs and there was no testimony or evidence presented that a canine can alert to a vehicle but really need their drugs inside a person that's not the argument that was presented so again i'm asserting there's no been no independent cooperation to support the lack of reliability for the source of information and miss healey said that there were other indicators i think what she essentially identified was nervous mess and i don't mean to make light of a very serious situation but i think any person of color is nervous these days when they're pulled over by law enforcement and there wasn't any argument in the district court level that his nervousness was one of the reasons why they believe he was concealing drugs honest person so again i would assert there was no independent cooperation that would support probable cause s the reasonableness of the search there was some disagreement about whether a visual whether a plastic bag was visualized there is something in the medical records about a nurse thinking she saw something that looked like plastic mr ruff and testified that he recalled the nurs ation see anything and then in judge quinn's opinion he indicates that it seemed the doctor rebel was either not recalling that or not crediting it so there's definitely that's an a question a factual dispute certainly don't you judge glenda not rely on that says there's no indication that he was that determination is clearly erroneous this court should adopt there's there's really a question mark as to whether the nurse was able to visualize anything at the end of the day we're really talking about a lack of constitution does not forbid the state's minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions or intrusions are there other conditions i would respectfully argue that this is a substantial intrusion kinds of cases where either this court the supreme court as a term is searches were reasonable or par less intrusive procedures blood draws you ministration of laxatives and although the conduct here might not have been as severe as booker