“It Ain’t Pretty and We Should Not Pretend That It Is” »

Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts

Orin Kerr • December 30, 2011 2:09 am

Kevin Walsh flags a very unusual Fourth Amendment case out of the Fourth Circuit that reaches a rather surprising holding: The police violate the Fourth Amendment, justifying suppression of the evidence, when the police use a knife to remove drugs tied around a suspect’s private parts during a search incident to arrest. The case is United States v. Edwards.

First, the facts. For fans of The Wire – cue the music – the case occurred in Baltimore in the Northern District. The police obtained a search warrant for a known drug dealer, Joseph Edwards, who was quite familiar to the officers. Edwards had earlier illegally brandished a weapon in front of two women. The police knew the neighborhoods where Edwards hung out, so they went there at night and saw him and placed him under arrest based on the authority of the warrant. Before putting Edwards in the police van to be transported to the station, the officers decided to check his crotch for guns or drugs. One of the officers testified that this was a common practice: ” You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

Four male officers surrounded Edwards. One officer loosened Edwards’s belt and stretched his pants and underwear out about six inches away from his body, and the officers directed a flashlight to see if anything unusual was there. As it turned out, there was indeed something unusual: Edwards had a clear plastic sandwich bag containing 43 smaller baggies of crack all wrapped around his penis. One of the officers put on gloves, took a knife he had with him, and cut the sandwich bag off. Edwards was unharmed, and the discovery of the crack led to crack possession charges.

In today’s opinion, a divided Fourth Circuit rules that the crack must be suppressed. Using the knife to remove the baggie was constitutionally unreasonable because Edwards could have gotten hurt, the court rules, even thought he wasn’t:


We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety. The district court found that the entire search took place at “approximately 11:30 [at night], in a dark area.” While the officers used a flashlight when searching inside Edwards’ underwear, they did not continue to use the flash– light when Bailey removed the baggie containing the susected drugs with his knife.

The government contends that because Bailey knew that Edwards was being arrested for a handgun violation, the search inside Edwards’ underwear was reasonable to ensure that the police had not missed finding a weapon during the earlier pat-down search. . . . .[A]ssuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, the government provides no reason whatsoever why the concealed contraband, once the police had determined that it clearly was not a handgun, could not have been removed under circumstances less dangerous to Edwards.

We do not suggest that after discovering contraband concealed under a suspect’s clothing, officers are required to permit the suspect to remove the contraband. . . . [I]n the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.

I’m not persuaded. The officers had arrested Edwards pursuant to a valid warrant, and they were conducting a search incident to arrest. Under United States v. Robinson, that allows a full search of the person, which I would think would include checking out whether a suspect has hidden drugs or a gun on their body. The court uses the Bell v. Wolfish framework to determine whether the search of Edwards was reasonable, but that seems like the wrong doctrinal box: While Bell is the framework for searches for drugs and guns on the person once arrestees arrive at the jail, here the controversial step was using the knife to remove the drugs. Using the knife wasn’t a search at all: It was a means used to seize drugs that had been found in plain view during a search incident to arrest. It could be litigated as an excessive force civil claim, but I don’t think it implicates the constitutionality of the search that preceded it or triggers Bell.

Even if you accept that Bell’s framework applies, I’m not aware of a precedent that supports such micromanaging of the details of a search. The court’s opinion announces that the police can use “blunt scissors” to remove a baggie of crack from around an arrestee’s penis, but the United States Constitution prohibits using a “knife” to do it — apparently because the latter poses unnecessary risks while the former does not. While most of us can recognize and appreciate the Court’s concerns, I don’t think that a suspect’s decision to tie a bag of crack around his johnson triggers such heightened scrutiny of the means of removal when the cops arrest him on a warrant and search him incident to arrest. That’s all the more true because Edwards wasn’t actually injured when the officers removed the bag.

Categories: Fourth Amendment

sorry for the c&p but I was too lazy to rework it.

Translation -
The Court protects Dicks.

Concise and true. Thanks

I don't see how the above described circumstances would lead to the suppression of the evidence as there are no 4th amendment issues. The evidence in this case was legally obtained, but they are claiming unreasonable force was used in doing so.

Weird. I could see a single judge at the federal or state level being suckered in by such a lame argument, but not a Circuit Court Panel.

Anyway...what's left out is that in state cases (as a criminal case such as this would be), if the conviction is challenged in Federal Court and the Feds find that this could be a problem, and overturns the conviction, they almost always send the case back to the state court to see if it really was a problem...like this:

The Court finds that in this case using a knife to remove lawfully discovered contraband from the genitals of a suspect may be an unconstitutional application of force, and remands it to the state court to decide.

...and that's what mostly happens (though not always).

In that case, the state court that convicted him would hear arguments on this issue, now that they have guidance from the federal courts on the Constitutional issue, and could still find that it was not an unreasonable application of force, and uphold the conviction.

Fourth Amendment cases are actually usually pretty interesting with some good arguments coming from both sides to decide the case. This one is not, to my mind.

Somewhere between tazing him, hitting him in the head with a baton, then parking a cruiser on his head while removing the baggie with a blowtorch and wire cutters (clearly a little excessve) and saying "pretty please remove the bag and hand it to us, and be careful to not pull any of your pubic hairs out, Sir", is the "line" where the removal of the contraband goes from "reasonable" to "excessive"...where that line is, I don't know...but I'd say that using a knife to remove the baggie is on the "good" side of that line.

If they've (the Fed Court) has come up with a novel "reasonable standard to remove contraband", then what they'd do is come up with the "rule", and then send it back to the state court to decide whether or not the way it was done was "reasonable" or not.

The only way this doesn't go back to the state court, and the state court throws out his conviction and sets him free, is if the feds came up with a rule that said "no matter what the situation using a knife is per se unreasonable"...which I doubt they did.

This case is not over, I'm guessing.

Fish on...

Todd

So, I went and read the opinion of the Court, and its ruling makes a little more sense to me now.

Everyone agreed that the arrest was proper, that the search was proper, and that discovering the contraband was proper. The only argument was whether or not using the knife was proper, and then what the recourse should be if it is found not to be.

They likened the search to a "strip search", and as crazy at that sounds, the case law cited in the opinion seems to support that. A "strip search" comes with a bit of extra scrutiny, and even though I think it shouldn't have mattered in this case, they seemed to give a bit of weight to it as they were saying it didn't matter, also. Weird.

They then found that using the knife was unreasonable because it could have caused "fear or humiliation" to the suspect, two things that are somewhat banned by the "strip search" rules.

Assuming they were correct in finding the "strip search" caused unreasonable "fear or humiliation", the next thing to do would be to ferret out what the recourse for this should be.

The suspect, of course, argued that the recourse should be throwing out the evidence found by the search, the drugs, which would effectively end the case since it's hard to convict him of possession with intent to distribute if there is no evidence of any drugs in the record.

This is usually the last recourse granted by the Court, and they use rulings like the "but for" rule ("but for" the unreasonable search, the drugs would not have been found) or the "causal connection" rule (there is a direct causal connection between the unreasonable search and the discovery of the contraband) to let the bad search slide.

In this case, I see that the "but for" rule should allow the evidence in anyway...as they already had discovered the drugs before employing the knife...and everyone already agreed that the search was reasonable up to the point where the knife was used. This should equally apply to the "causal connection" rule, and the drugs were already discovered...and when they got back to the station and legally strip searched him before sending him off to the pokey, they'd have found the drugs there, too.

The Court ignored those arguments and said that the prosecutor failed to bring them up during the Motion to Suppress at trial, and the general rule is that if you fail to put your argument on the record, you can't argue it later on appeal.

That's all fine and good...if there was a reason to bring them up. There may not have been in this case, since the Prosecutor won on the motion on grounds that the search was 'reasonable', he may not have brought up alternative ways to win the argument...he may not have had to.

The Court went on to say that the District Judge erred by not granting the motion and throwing out the evidence, and pretty much sealed the deal right there. I think they should have tossed it back and let the District Court decide if it should be suppressed or not.

I'd be surprised if the State didn't apply to the Supreme Court to hear this one...but I'd be surprised if they took it, too, unless there were several other cases along these lines out there besides this one.

There's a good dissent written in this case, and it's more in line with my thinking on it.

Here's the opinion:

http://pacer.ca4.uscourts.gov/opinion.pdf/104256.P.pdf

Fish on...

Todd

P.S. Coley, the Courts have found many times that the "manner of search" can be just as important as the "justification for the search" so far as 4th Amendment issues go...but it's a pretty squishy topic. They've been just as likely to say "the evidence is in, and if you think you have a claim for the manner of the search (too brutal, too embarrassing, whatever...), bring it in a civil state suit", as they've been to say "the manner of this was so unreasonable that the search itself is unreasonable"...

Thanks.

The issue isn't with the search. The search was concluded at the time the evidence was seized. The issue is with the seizure method.

Can evidence be suppressed if it was discovered via a lawful search but unreasonable force was used in it's seizure?

It is my understanding that the evidence stands as it is not the "fruit of a poisonous tree," but the officer may be civilly or criminally liable if he/she is not entitled to qualified immunity.

I agree with you, Coley...I think they should stuff him in jail for possession with intent to distribute, and then tell him to "sue the Balitimore cops if you think they violated your rights by using a knife"...

Yes, the evidence can be suppressed if an unreasonable seizure is used after a legitimate search found the evidence...that's where it gets mixed up as to what is being violated, and what the remedy is.

From the opinion:

"The manner in which contraband is removed from a suspect
during a sexually intrusive search, no less than the manner in
which the contraband initially is discovered, must be considered
in determining under the Bell analysis whether the search
was reasonable.5 Bell, 441 U.S. at 559-60; see United States
v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011); United States
v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007)."

I don't agree, but that's what the Court found.

If there is further appeal and the 4th Circuit reviews it en banc, or the Supremes see it, this will the single crux of the issue...can an unreasonable seizure invalidate an otherwise reasonable search?

I still agree that a legal search found the drugs, and that he's fukked on that one...and that any injury he sustained from the "unreasonable seizure" should be hashed out in state court as a different issue.

Fish on...

Todd

To take it in another direction...a guy is holding up a 7-11, and the cops show up...the cops draw down and tell him to drop it...and the guy is holding a gallon of milk, not a gun, and says "I am unlikely to shoot you with this gallon of milk"...and they shoot him.

A bit over the top on the force? Clearly, and there's a ton of room there for a civil suit against the cops...but it doesn't let him off the hook for holding up a 7-11, even if he's pointing a gallon of milk at the clerk.

Using an unreasonable seizuire to retroactively invalidate a reasonable search is not good policy, in my book.

Fish on...

Todd

The guy had the crack tied around his penis, removing the drugs by any means might embarrass him.

I agree...doing it on a public street didn't help, though.

Fish on...

Todd

Re: the opinion that you posted (thanks by the way) they are using "manner" to determine whether or not the search/seizure was "reasonable." It doesn't speak to the handling of the evidence.

My question remains, even if the "manner" is found "unreasonable," what are the consequences and where are they spelled out? Didn't see anything in the exclusionary rule.

In this Court's opinion, it appears that the consequences of an unreasonable seizure can make an otherwise legal search...unreasonable.

That's why I think it's bunk.

Fish on...

Todd

10-4 and agreed.

Homeland Security and Patriot Act issues would likely stomp that out pretty quickly.

And if we didn't waste precious LE or court time by just legalizing all drugs, none of this would have happened. The guy could sell his crack on street corners, provided he has a vendor's license or permit. The US war on drugs, besides already having been lost decades ago, continues to waste financial and human resources on so many fronts, I'm frankly puzzled at the stupidity.

Sg

Are you saying the Republican hopefuls are drug addicts?

Perish the thought.

Fish on...

Todd

P.S. Drugs don't cause psychotic disorders, people who shouldn't be taking drugs taking drugs have psychotic disorders...that aren't really caused by drugs, since they were likely to have them anyway.

<Aghast>

You're not suggesting that PhRma's priority is money, rather than health, are you?

<gasp>

Fish on...

Todd