crime who is showing up at the jail and being subject to searches what we have here is a person who not only who has a different status even than a pre arrangement detainee she is certainly not a custody detainee except that she's being held in a detention setting by the deputies at this point in time that the search for curves what happens here is that katie astral as a member of a legal office is there to interview somebody and she has certain rights that inmates don't have she has a bring it she has a right not to pass them in terms of of course she doesn't have a right to bring things that are inherently illegal of course with regard to documents if i want to bring in a newspaper or other documents related to the case i can bring them with me or legal representative can into the interview room the question is can they be passed to the inmate and what we have here is a circumstance where she does not attempt at any time to pass anything to the inmate and that's conceded and we even have a conflict between the deputies in terms of what she did or what was said to each of the deputies so what we have is a person who now is there and she stopped leaving the location and she stopped leaving the location and we have essentially a search that is not a town search that occurs in a custodial setting it's not even a routine pat down search that occurs in the context of the visitor coming into the jail or legal representative coming into the jail we have strictly an investigative search which occurs here and the investigative search is based on false pretenses it's based on on factual inaccuracies and pap possibly misrepresentations and i think i've gone through that in the that no that's not the case i never told him that i never saw her do anything like that so what happens here is the question is is katie after all this searched and so i think that in reading the briefs since they were filed some time ago i realized that perhaps what happened in the district court and in the briefs there is something that really needs to be clarified and that is this is that the issue is not black and white that the district court considered the district court search that occurred it was no different than any strip search it in any context it wasn't necessarily done with the eyes but it was done with the hands which is arguably and i think conclusively more intrusive  pat down search and a little bit less than a strip search unless you define a strip search by showing some slip of your little graph with your routine a journey in los angeles appears to think it's so here's kind of my proposition i agree with you it's not really black and white it's a little fuzzy but if you start from the proposition that the pat down doesn't require any suspicion  goes on the yawn of pat am that falls short of being a strip search is there a not either by virtue of her own a tire and or unusually unusual a number of times unusually frequent lately and for unusually long period of time and therefore this name personal and drummer i think what what the first thing i would say to your honor it's that the assumption in the first part of your question respectfully is wrong you indicated that it started out as a pat down search my position is that it did not start out as down search and i think there's a lot of circumstantial evidence that it did not start out that way and that circumstantial evidence is such that the women were brought there and they were bringing her into the bathroom they were told to search this woman th contraband which is a strip search it's actually because it's they said it was either drugs or weapons or something like that now i know contraband could also be on authorized documents if you're passing them they certainly aren't contraband if they're in your possession so that said the second thing is is that and i know the court knows this rule but i want to remind it that we have to look at the facts in the light most favorable to the appellate so what happened here is that the truth when he makes those statements that she  the question with regard to is it you know if it's in a gray area there it's my position and i've said it before and i do want to make it clear that this was a strip search the fact that it was done physically with the hands and that it was done under the clothing and that her vaginal area was touched her breasts were touched and in the sense that there was a rim the fingers were stuck inside the outside inside of the bra all the way around that that is in fact a physical strip search now understanding bell versus wolfish and all of the all of the the questions that are the balancing that would you say that the war was not clearly established as to whether this was a script search established on that subject i think it is because if you look at the strip search definition it says removed or rearranging some some or all of the closing to permit of it says a visual inspection under clothing breast buttocks or genitalia the fact that they were in a public place in a home on the strip search is not a you don't touch the people you just observe them not right not well it depends on the type to strip search a visual strip search it in the normal protocol is that they would have them bend over things cough lifted in a female if their breasts things like that and they would view it that they would physically search the clothing and they w visual search now my position is that ok that's a strip search and it has a certain inherent intrusiveness about it in the sense that you're exposing intimate body parts the physical nature of the search that occurred here which was essentially going up her skirt running their hands around her thoughts on her buttocks under her dressed in her vachon illyria her skirt was lifted up her hands were placed under the blouse that her under her bra around the rim and that her hands were placed by the deputies through or here with their fingers as if a comb to check very thoroughly and that he in between her toes were searched and that is to me a physical strip search and i think that there and no i don't have a case on that because i think this is a unique set of facts that we have here in the reason it was a unique set of facts because of the particular circumstances and that is that the two female deputies were going into the bathroom to do the strip search and they were held back by sergeant the nia who was standing there and then they were placed in a predicament as young deputies who would say you know they were ordered to do with strip search for contraband but they can't stripper out there that even if they don't even let go sort of circumstances does not suggest that there was probably not clearly established as to that unique situation no i don't think so because i think what happens at that point is the deputies by their conduct are aware now that there is some confusion with regard to what wants to be done it's not confusion with regard to the law it's confusion as to what sergeant the needle was directing and to what they did was they did a physical strip search that they believed was more appropriate to the location that's a strip search was occurring in and so instead of making or take all her clothes off they pushed her dressed up and felt underneath her essentially or entire body we have skin to skin contact here and if you look at the strip search categories you deal with strip searches as visual strip searches the cases all in the in the in the blog also says that a digital strip search is more intrusive than a visual strip search and because of the physical touching so the physical touching of katie actually route is the actual strip search there and i don't think that it was just i think it was clearly established also on your question judge reed is that what you have are and number that case that it wasn't a pat down search in fact all of these cases are distinguishable that the just report relied on because they either had some there was some bulging item front that was inconsistent with the anatomy of the person or in that case it was they'd had done a pack down every single case they did the pat down first and then much like the plainview doctrine they felt something and then they went to a more intrusive search this case they never did that they did the strip search immediately and what's important in the bradley case is that they specifically said all the back cases and binding on this court that this is their opinion would not foreclose the possibility that a tap down could become interest so intrusive as to require the application of reasonable suspicion and i think that gets to the heart of the matter in which a dry marie is asking about is this a case which requires reasonable suspicion and i would submit to the court that the court does not have to discard that this was a strip search in order to rule in the appellants favor if the court decides well it's not a strip search it's something when asked i still think that there's a requirement of reasonable of fire here you know i wouldn't advocate that judge were law in the in only that i think a bright line rule is always fair to law enforcement and if we start having probable cause reasonable suspicion and then some lesser standard for this type of search i wouldn't advocate that because i think that would just be too complicated frank and many cases are that way but what i think those cases are good word laws this is they're implementing the bell versus wolfish balancing test and i think that's what they're talking about the nature of the intrusion the location which here was clearly in a public arena where the public was present and in fact a person from the deputy from the sheriff's department came upon the search and there's circumstantial evidence that he observed the search based on his conduct and the fact that the justification for the search is the other part that katie after all it's important was leaving the location and so while i understand that they have a right to do the pat down anytime you're asked to at the location the level or the interest that the government had in doing this physical strip search was much less and then it would be had she been coming into the location and i think the balancing test i important factor to consider on the balancing test and like to reserve i've got a question a couple of questions to ask that sergeant bowe knew you know say that the search was in accordance with county policy is that in only question i have is what about the rule thirty six problem well if you want to comment on the i don't i don't think it's necessary to this opinion i will be honest with the court i probably regret a strip search was simply visual here they feel a person's body which seems a little places which seems more objectionable more like it's much more effective way to draw the line or comment on the place well and i don't indicate my own opinion i want to start well i think in terms of if you're focusing on the if you're taking your women i think that's l she didn't given anything and couldn't give them anything right so she's leaving so the only so where was the contraband since he's leading in clearly not giving him anything you know professional basis for passing the the green card from the defendants child to the defendant to a sort of a stab would show some for a relationship there which would be a more trusting relationship but the motive or the purpose of every single docking that they brought i think there is a general rule of death and this is purely legal materials the other kinds of documents need to be censored jail mail system for obvious security reasons and there's i think four points that i'd like to make first of all with regard to the bradley case respectfully to counsel i think that my reading of bradley is significantly different from his and i think that there are some inaccuracies and what he's saying first of all in state that that court found that it was a packet on search is not accurate if they said anything and i don't remember them making any finding of that nature in the bradley case it's important to note that even if they did it was because it was never briefed and it was never an issue in the case so that's important secondly he made the statement that they actually went into the private parts in the bradley case in the court will specifically remember reading in bradley that they said that they did not they went on the outside of the private parts and it was over the clothing but again it was never litigated as to whether or not that context was a strip search with regard to contact in the search of ms yeah sure ralph if she had been wearing underwear based on what they did in the balance of the search they certainly would have gone inside the underwear the same way they did the same way they did the blouse excuse me the pants or the skirt in the same way they did the bra now with regard to the genuine issue the tiriel fact here in this case there i want to point something out to the court that there is truth you know gave a declaration in this case where he said that he saw items being passed or words to that effect at his deposition at said specifically excerpts of record two thirty eight there was no evidence that the plaintiff or the appellant tried to secretly pass anything either way when there was no reason to believe that any contraband had ever been exchanged my final point would be regard with to th