(dissenting)—In my view, the trial court did not abuse its discretion in applying the general security order to Mr. Hartzog and his witnesses. Therefore, I dissent.
First, I disagree with the majority's interpretation that the security order requires two probe searches. They reverse and order a new trial solely because the second search is an unreasonable requirement. Neither the order nor the record supports that conclusion.
The order states:
Inmates will be searched at the prison before departure. They will be brought to the Walla Walla County jail where they will be skin and probe searched under the supervision of the sheriff's personnel. . . .
The only probe search required by the plain language of this order is at the jail. The record corroborates this interpretation. There was only one probe search of Mr. Hartzog and that search occurred at the jail.15 Neither Mr. Hartzog nor his counsel complain of more than one search—the one at the jail.16 Consequently, in my view, the majority's *603reversal on the ground that a second search is required is incorrect.
To the extent that the majority holds one probe search, preferably at the prison, would be a proper exercise of discretion, I agree and according to the record that is what occurred here.
A cursory reading of the cases cited by the majority demonstrates the widespread use by prisoners of their body cavities for the hiding of contraband. In Daughtery v. Harris, 476 F.2d 292, 293 n.1 (10th Cir. 1973), the chief correctional supervisor at the federal penitentiary in Leavenworth, Kansas, indicated that the following items had been found during probe searches of prisoners:
Weapons of any type, sawblades, narcotics, intoxicants, barbituates [sic], money, pornography, single edge razor blades, or any item which might be used to effect an escape . . .
Here, one of the incidents giving rise to the security order involved an earlier trial of a prison defendant whose witness made a bomb with a Bic cigarette lighter. Carrying it on his person the day he testified, he found no opportunity to use it and passed it to another defendant. He brought it to the courthouse the next day and left it on the floor of the conference room where the prisoners were allowed to confer with their lawyers. While searching the room for contraband, a penitentiary correctional officer found the lighter, attempted to light it, and lost three fingers of his right hand in the resulting explosion. The superintendent of the penitentiary who testified in support of the security order alluded to this incident, and said:
I would like the record to clearly show that I am in support of this [order] and for reasons really in addition to the ones stated in the order. Let me be more specific. *604The bombing incident which took place at the last criminal trial here in Walla Walla County in the case of Agtuca and Gilcrist, the information I have now available is that the bomb which went off was actually brought into this courtroom in a so-called Keister stash, [cache] the day before, and it was not able to be used because the person was brought right here in restraints until the very time he came in to the courtroom and then out, so it was taken back in to the institution.
The reason for the manufacture of the bomb was as a diversion or as an escape attempt. The prisoners realized that the only time that they are without restraints is when they are in the courtroom. This bomb was made and left as a booby trap for exactly the reason that it came off, for it to go off and cause great bodily harm so that the defendants who were then in the courtroom without restraints would be able while the officers on guard were being diverted by the plight of their fellow officer could make a run for it. There was a tradition for that mode of escape from the courtroom already cited by the prosecuting attorney. ... It was Mr. Barrett . . . where he did bolt from this room and down the stairs and out the front door while being shot at by officers here.
(Italics mine.) The Keister cache introduced as an exhibit in this case contains a sharp-bladed knife and illustrates the type of container referred to by the superintendent. Uncomfortable as such an object must be when inserted into the body cavity, the possibility of its use cannot be ignored by a trial judge in protecting the security of his courtroom.
During the probable cause hearing held at the direction of the United States District Court, the prison records of Mr. Hartzog and his two witnesses were considered by the trial judge in determining the necessity for a probe search. These records disclosed that Mr. Hartzog was serving a maximum sentence of life with a mandatory minimum of 7 1/2 years for burglary and two counts of robbery with deadly weapons. Shortly after incarceration in 1972, a routine check of his cell disclosed 11 rounds of ammunition, a shank (cannery knife), and some drug paraphernalia. Since *605that time, he has incurred one or more infractions of prison rules every year of his incarceration. These infractions dealt primarily with drugs or drug paraphernalia. However, in June 1976, it was discovered that he possessed a diagram of a handgun. His record also shows one escape from a reformatory honor camp prior to the convictions for which he is currently under sentence. While the instant charge was pending, Mr. Hartzog was found to have 2 1/2 gallons of "pruno" brewing under his bed.
Witness Manuel Rosalez was sentenced in 1972 for taking a motor vehicle without permission and for robbery while armed with a firearm. His sentence carries a 7 1/2-year mandatory minimum. In 1975, he attempted to escape from the prison while masquerading as a woman. Later the same year, a homemade knife was discovered on him in a spot check skin search. He too has a number of drug-related infractions.
Witness Lanny Sargeant was serving a sentence for second-degree assault. His prison record reflects drug-related infractions and belligerency toward prison guards. Although the record is ambiguous on this point, an intra-prison communication indicates he was serving time for second-degree murder.
Given this information, the trial judge ruled that probable cause existed to invoke the general order requiring a probe search of Mr. Hartzog and his two witnesses. After recounting the backgrounds of Mr. Hartzog and his two witnesses, the court said:
This court is aware of the fact that Washington State Penitentiary is a maximum security institution containing many dangerous inmates, that there are know[n] incidents in this penitentiary of concealed contraband being carried by prison inmates, some of which in the rectal cavity. We have had a wounding of a penitentiary officer right here in this courthouse within the last year as a result of contraband being carried into this courthouse in the rectal cavity.
I find that all of these factors constitute probable cause for the probe searches in this instance with regard to the *606three persons who have been identified as witnesses in this case, including the defendant.
And we have further what I consider to be probably the most important thing; we have the inherent power of this court to provide for its security and the security of the persons who are required to be present in the court. That includes members of the jury, court personnel, the attorneys, both for the state and for the defendant, and all supporting court personnel. It is this duty that is upon my shoulders, to provide for that security, that I feel is the most important factor.
(Italics mine.)
In upholding a general policy requiring probe searches of inmates in the federal prison at Leavenworth, the court in Daughtery v. Harris, supra, perceptively observed, at pages 294-95:
Leavenworth is a maximum security institution containing many dangerous inmates and any consideration of the penitentiary's security regulations must be realistic. There are many known incidents of concealed contraband being carried by prison inmates in the rectal Oavity. Several serious episodes, including the wounding of a court officer, were attributable to the ability of inmates to smuggle weapons out of prison. Given these circumstances coupled with an increasing need to assure the safety of our law enforcement and court officials, this policy of allowing rectal searches must be considered reasonable unless contradicted by a showing of wanton conduct. ... To hold that known cause comparable to that required for a search warrant in private life must precede such a search would be completely unrealistic. It is usually the totally unexpected that disrupts prison security.
(Citation omitted.) There is no rational distinction between approval of general probe searches for prison security and a court's order of a probe search for courtroom security. Thus, I would affirm the trial judge's exercise of discretion in applying the order to Mr. Hartzog and requiring that he be probe-searched prior to his appearance in the courtroom.
*607In light of this holding, I must consider Mr. Hartzog's challenge to the requirement that he and his witnesses testify in shackles. Because they refused to submit to a probe search, Mr. Hartzog and his witnesses did not appear in the courtroom for the trial. Instead, their testimony was taken on video tape at the Walla Walla police station and later shown to the jury. The jury was cautioned before trial and after the evidence had been presented:
You are instructed that the security measures taken in penitentiary trials are the joint product of the penitentiary administration, the sheriff and the Court; that they are utilized routinely; and that no inference is to be drawn from the security measures taken as to guilt or innocence of the defendant or that any particular inmate is a security risk since the same procedures apply to all inmates regardless of their conduct records in the institution.
This court has viewed the video tape and noted that the shackling of Mr. Hartzog and his witnesses is hardly evident to the viewer. Considering this circumstance in light of the trial court's two cautionary instructions, I find no error.
Second, I disagree with the majority's holding that the security order must be applied on a case-by-case basis following a probable cause hearing. None of the cases cited by the majority are concerned with the kind of circumstances presented here. They are routine cases in a relatively stable environment. In my view, exigent circumstances exist in this case and require a departure from the traditional rule that shackling should be ordered only on an individual basis following a probable cause hearing.17
The exigent circumstances to which I refer are as follows: The Washington State Penitentiary, a maximum security prison, is located in Walla Walla County with a population of about 45,000. As noted by the prosecuting attorney in his *608presentation to the trial judge, the number of criminal cases arising out of the penitentiary and the security problems involved in the trial of those cases have increased dramatically. This court must judicially recognize that this penitentiary has been in a state of serious ferment and upheaval almost continuously during the past decade. At the time the security order was signed, the prison population was in lock-up according to the prosecuting attorney. Hunger strikes, riots and violence in the penitentiary have been constantly reported in the local and statewide media. It has been of serious and fearful concern to the residents of Walla Walla. Even as this opinion is being written, prison inmates are involved in a civil rights proceeding in federal court against the State and prison officials, charging cruel and inhuman punishment. This tension and turmoil within the institution, irrespective of its cause, has manifested itself in increasing disrespect for the court, disruptive acts during trial and, finally, the endangering of human life through the use of the cigarette lighter bomb.
It is in the context of these continuing events that the trial court determined there was probable cause to enter a general security order governing every prison defendant and prison witness, whether for the State or the defendant, and requiring a probe search and arm and leg restraints for the security of the courtroom. The question is whether these circumstances are sufficiently exigent to justify a general order dispensing with individualized probable cause hearings. I think they are and the order should remain in effect until it is shown that the tensions at the prison and in the courtroom have subsided.18
At the time the security order was entered, Judge Tuttle made the following observations and then applied them in State v. Snook, Walla Walla County cause No. 68330:
*609I would just like to comment at this particular point where we have just been going over all of these people who are high security risks in the Snook trial. If we were to pick and choose among inmates and provide shackles or restraints for some and not for others, it would be perfectly obvious to the jury that we had selected so- and-so as being a high security risk. That's the reason why it seems to me that we have to treat these penitentiary cases as all witnesses who are inmates being potential security risks and treat them all alike. That way it doesn't result in the prejudice it would were we to bring one man in shackles and the next four unshackled and nobody sitting close to him and so on. As far as the stage setting is concerned for the jury, each man who takes the witness stand is going to have to take it under the same set of circumstances or otherwise I think you could make a logical argument that there is prejudice resulting in it. But I don't see how you can make the argument there is prejudice resulting if they are all treated in the same way simply by reason of their status as being inmates in the state penitentiary.
All I can say is I think that the realities of today's situation mandate the kind of an order which I have entered, and it ought to be constitutional.
... In my opinion, the matter of clothing and the matter of restraining and the matter of posting guards and all the rest is more an abstraction than it is dealing realistically with the problem of prejudice, and I just don't believe if we try all these as routine security measures and inform the jury that this is the way it's done in penitentiary cases that realistically any prejudice results. In my opinion, I think if it is made obvious to the jury that proper security measures have been taken for their protection as well as everybody else in the courtroom, we are more likely to wind up with a fair trial than we are if we do it some other way.
Furthermore, the Walla Walla Superior Court judges, who are all long-time residents of the county and familiar with the community and can sense the concerns and attitudes of potential jurors, assert that jurors have expressed to them the fact that they are not prejudiced by the *610enforcement of the court's security order. The judges state that jurors have expressed a feeling of security when prison defendants and witnesses are restrained, and this allows them to listen to the evidence undistracted by their fears. The juror expressions of the lack of prejudice in the use of courtroom restraints is confirmed by the judges' observation that many defendants in restraint under the order are found not guilty.19 This is understandable because the *611prison is in their county and they are aware of the prison turmoil because of extensive news coverage. Further, the jurors are twice cautioned not to draw any inferences from the restraints.
Considering the entire record and facts judicially noticed, I do not find an abuse of discretion in applying the security order to Mr. Hartzog. Neither do I find an abuse of discretion in applying the order to all prison defendants and prison witnesses so long as the tensions between the prisoners and the administrative authority persist at the prison. In the context of the unique situation presented in this case, it is not possible for this court or the trial court to predict when a violent act will or will not occur. It is unrealistic, in the current situation, to require such prediction by the trial court at the risk of jeopardy to those attending a tried. The trial court has a heavy obligation to protect all persons in attendance at a trial. It is in the best position to recognize the measures that must be taken to that end while preserving a defendant's right to a fair trial. An appellate court, removed from the real situation, should not second-guess the trial court unless there is a clear abuse of discretion. In my view, there was no abuse of discretion in this case.20
*612Therefore, I would affirm.
Reconsideration denied August 4, 1980.
Review granted by Supreme Court November 19, 1980.
Mr. Hartzog, in his affidavit, states: "The transportation of myself from the Washington State Penitentiary to the Walla Walla County Courthouse and the skin and probe searches took place as follows:
"A) At Washington State Penitentiary I was made to take off my clothes and put on a jump suit.
”B) Next a chain belt is placed around my waist with the chains to my ankles and chains to my wrist.
"C) I was then taken downtown to a small room, which I believe is in the county courthouse.
"D) For each search I was in the presence of one sheriff, one correctional officer from Washington State Penitentiary and one member of the hospital staff from the Washington State Penitentiary.
”E) The sheriff then ordered me to take off my jump suit. After doing this I was made to bend over a radiator, exposing my rectum to be searched. The hospital staff member then manually probed my rectum with his finger. I was then allowed to put the jump suit back on and was escorted into court."
The majority, in a footnote, assumes that a probe search occurred at the prison because probe searches at the prison are common. There is nothing in the record to support that statement. Mr. Hartzog does not claim he was probe searched at the prison before being brought to the jail. As the security order indicates, in a prior case the court presumed that a probe search occurred before a *603prisoner left the penitentiary, and yet, one of the witnesses carried a Bic lighter on his person the day he testified. Based on that presumption, a penitentiary correctional officer lost three fingers when the Bic lighter exploded. It is extremely dangerous to engage in a presumption of fact of this type and this court should not do so.
It should be noted that prison policy orders authorizing general visual or probe searches of inmates for security purposes have been upheld without requiring an individualized showing of probable cause. Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Daughtery v. Harris, supra.
This type of order does not differ in principle from the general requirement that all citizens visiting adjoining countries submit to a border search. AlmeidaSanchez v. United States, 413 U.S. 266, 37 L. Ed. 2d 596, 93 S. Ct. 2535 (1973).
Judge Tuttle's reasons for entering the security order were reaffirmed by Judge Mitchell when he applied the security order to Mr. Hartzog. After reserving ruling upon whether he would allow Mr. Hartzog to be seated at the counsel table, he said:
The security order that has been adopted by this court provides a number of safeguards with regard to the appearance in the courtroom, such as instructions to the jury, both prior to trial and prior to submission of the case, that the security measures are routine and are not to be considered as any evidence either of any dangerous tendencies of any particular individual or of the defendant in the case at hand, nor to be considered at all with regard to the determination of guilt or innocence in the case at hand.
By the nature of a proceeding in which a resident of the penitentiary is a defendant, there is no way that a jury is not going to know that the defendant is a convicted felon. The cases that I am sure counsel for the defendant is referring to, United States Supreme Court cases, concerning appearances in court, type of clothing worn and so forth, I do not feel are applicable in this situation.
Insofar as the claim of prejudice in the minds of the jury, I am satisfied from experience here that that is not the case. On the contrary, I have had jurors talk to me following trials in which these measures have been imposed, and they have indicated to me that there was no prejudice but, on the contrary, there was a feeling of security in their minds, a feeling that they were more able to listen to all of the evidence and to consider it without being distracted by other influences or fears, whether real or imaginary, in their minds. I am satisfied that we have had Washington State Penitentiary inmates here in trial as defendants under the safeguards that are contained in our security order, and they have been found not guilty, and I just don't think that you can say that type of thing creates a prejudice in which they are all going to be found guilty.
This court has an obligation to jurors, witnesses, parties, spectators, and court personnel, to provide for security; and it's going to be carried out unless this is either set aside by the Federal Court or set aside on appeal.
In a case presently pending in this court, State v. Simmons, Court of Appeals cause No. 3859-9-III, Judge Reser refers to two aggravated first-degree murder cases in which the prison defendant, his witnesses, and the witnesses for the State were all placed in arm and leg restraints and the jury brought in verdicts of acquittal. In a third case, the only inmate witness was the defendant who was *611shackled and the trial resulted in a hung jury. Further, Judge Reser refers to the recent trial of George Simmons in Seattle where at the outset restraints were not required. During trial, according to news accounts, Mr. Simmons grabbed a knife from the exhibits and started toward a witness. A shot by an officer ricocheted off the granite floor and walls before the defendant was apprehended. The record shows he was then restrained, and later convicted of second-degree murder which Judge Reser stated was not "remarkable in view of the fact that George Simmons had made numerous confessions to the murder."
I note that Judge Reser in State v. Simmons, supra at n.3, indicates that modesty shields have been installed in his courtroom to conceal the leg restraints and that the defendant Simmons would be permitted to have one free hand to take notes. This seems to indicate that the court is making an effort to conceal the restraints as much as practicable. This practice is to be commended. I suggest that the court also give consideration to other types of restraints that might reduce any noise that could be made from the chains or arm and leg restraints compatible with the necessary security of the courtroom, e.g., a weighted boot on one of the feet, etc.