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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

OK Hank, be a douche and ignore that alcohol and tobacco, both legal substances, cost society far more than illicit drugs. And a good conservative or libertarian would support drug legalization and then punish bad behavior that results from some of it.

Hank likes to be a tool just to be a tool sometimes.

Lordy, I hope she isn't on Thorazine or anythin similiar. Her mouth
is toxic enough as it is. Some of those chemicals can induce violent
toxicity.
I pity her goats. I wonder if she has a discipline costume other than the typical biscuit burner apron.

and a Cheerio to you Ranty moo.

Too bad the douches can't figure out a way to wring themselves out every now and then. They reached maximum saturation long ago.

Billions and billions of dollars = zero result

The War on Drugs makes for a vastly larger gubmint, to the tune of a zillionbillion dollars, and "zero" return for the investment...why is it such an untouchable for the right wingers? According to Dogma it would be the first thing on the chopping block.

Fish on...

Todd

By definition a conservative and a libertarian will favor legalization of all drugs. It's a basic issue of liberty.

Now, if people use drugs and misbehave, then they are subject to any natural and logical consequences of such use, like addiction, injury, and death.

If made legal, a $100 a day heroin habit need cost only $1 a day. The estimated cost of drug education and drug treatment for those who want it is a small fraction of our $105 billion a year (1995 dollars) war on drugs. Stop pissing the money down this failed rat hole. Some people will use drugs no matter what. Invest in education, treatment, and "drug ghettos" for the hopeless and save money, prevent almost all this senseless drug violence, and just maybe Hank and Illyrian won't be douches any more.

The problem is this.

Tell the right wingers that we can pocket the 100 billion, which gets us no return, and instead put 20 billion into education and treatment, which returns something like 140 billion back into the system...and they'll still say no.

The pain of spending 20 billion on education and treatment, even with a 7:1 return, hurts more than throwing 1000 billion in hole...at least they can put people in jail and say "look what we're doing" with that...not to mention the billions made by contractors who are fighting the War on Drugs.

Fish on...

Todd

The $105 billion a year I mentioned didn't include jail and prison costs. Those are extra.

If the bible mentioned Jesus taking a toke every now and then the Rep's would be foaming at the mouth for legalization.

If Christians then were anything like today's crowd, He'd have needed one just to get out of bed in the morning.

Fish on...

Todd

kinda amusin', Navy days, using the term, I'm gonna go douche meant, I'm gonna go shower. ' Course in those days the Black
Albatross, oops I mean ladies didn't serve aboard ships or boats.
btw in case you didn't know; Black Albatross refers to the bad
luck that was allegedly had by having a woman aboard.
Rhyme of the Ancient Mariner comes to mind.
Classic movie, The Professional, gives a pretty good slant
on what some DEA agents may be doing. It is a waste of taxpayer
dollars. Now Holder has the right idea. Give the Cartels all the
ordnance they can stand and let em off each other. But then
that didn't work either. They used them to off the wrong people.
The Cartels with that much cash can pretty much buy Holders and
their ilk. Legalizing dope, all inclusive term, would impact their
income and ain't no way they will allow that without a fight.

" refers to the bad luck that was allegedly had by having a woman aboard."

The gay times you must have had.
I'm sure you and Hankster reminisce quite often. You wearing your sailor cap and Hankster yelling "aye aye captain".

as usual. However, you seem to have a 'gay' fixation. Is that
homophobic or just wishful thinking. Now there are some points for
you, I said thinking. In your case that is an attaboy.
Seriously, are you a third sex guy or gal? Maybe just a switch hitter.
If none of the above you should get counseling for your 'gay' fixation or obsession. Maybe the moo girl will share some of those recreational chemicals with you. Too much depression is unhealthy.
Go fishing, that is good therapy.

and they smelled worse after working up a sweat.

Your ramblings are a constant source of material. Plus the comments about women makes one assume you are a soap dropper. Not that there's anything wrong with that.

Actually, at my age I should maybe on "mood enhancers", however,
I try to avoid any bit of pharmacology that I can. One thing leads to
another and then you got so many chemicals in your blood stream you are a mess.
Grab an education peckerheadd. The woman thing on boats and
ships is a bit of lore from the days of sailing ships. I'll post 'The
Laws of the Navy' for you if you think you can handle the jargon.

As a match maker ranty moo you leave a bit to be desired. Of course
you can't help it. You prolly don't know the difference twixt a goat
and a stoat.

If you wish to come across as clever or smart, you might think about using actual words, prolly is not a word.

We should cut him some slack. I've never seen a typing tampon before.

Golly Gee I learned that prolly word on this forum coupla years ago.
If you're really hard up you could prolly jump on coupla too.
I really hate to talk over your head, it makes for poor communications.

I don't know if that would hold up. Ranty is kinda fickle. I can remember when she was KK's cheerleader and then she developed
a roving eye. I actually exchanged a civil word or two with her in
times past. Now she is on another tic. I think she is on a guilt
trip and going socialist to mollify her 1% style. Kinda like the
guilt trip commies in England and the US pulled in the 50s and the 60s .
Hope she doesn't defect. The awakening would be sad.

We've already established that there's nothing wrong with you two being open about your relationship. In fact it's kind of cute seeing you both holding hands on every thread.

Better to be thought a douchenozzle, or post and remove all doubt.

This thread is obviously inspiring some envy and party crashers,
however, lame. But that's ok. Don't want to leave anyone out.
btw thanks to those that helped with the legal facet.
The other three punjis, carry on.

You two should get a room.

I have a room, several actually. Pecker head you seem to be
running out of words. Whats with that. You Ok? Blood Pressure viable
and all that? Just remember Ranty has the pills if you have a need.

....or continue to make posts that confirm you are an idiot. Perhaps that's complimentary at that.
You can be my Thesaurus if you are up to it.

Another symptom is snappy comebacks like "I have a room, several actually." or the infamous "no you are".

As your Thesaurus, I strongly recommend you STFU, continuing to remove all doubt only weakens your position.

Answering the three of you and your posts is like trying to communicate with the Gorgon Medusa. You just need to calm down and take turns with your posts. You collectively present a problem tho. Determining which of you is the goofyest is a challenge. But then it doesn't really matter does it. You are all capable cretins.
Ranty will have a vocabulary in another 30 or 40 years. Pretty good for a female. I think that it is a female.
help yourself peckerhead. you are overmatched.

How many posts ago did the actual topic end?

The entertainment value has been moderate, I'll say...which is better than many.

Fish on...

Todd

the thread died a while back. And thanks for the input. Fencing, I use the term loosly, with some of the village cretins took precedence. The truculent trio just likes to get my attention, times change. Here I thought Marsha was in love with me a while back someplace else. Butt like I said she is fickle. I spent 3 years in Pre-med and she is starting to study some arcane chit. Actually Parasitology is a better fit for the cretins.

You might want to look into this Ranty.

Spider venom better than Viagra?
By Diane Mapes

Most of us get a little excited when we see a big spider, but for the unfortunate few who fall victim to the bite of the daunting Brazilian wandering spider, that “excitement” takes on a whole new meaning: The venom of the wandering spider -- also known as the banana spider (or more formally Phoneutria nigriventer) causes erections in men.

“The venom of the P. nigriventer spider is a very rich mixture of several molecules,” says Dr. Kenia Nunes, a physiologist at the Medical College of Georgia who is currently studying the odd side effect. “These molecules are called toxins, and then we have various toxins in this venom with different activity. Because of this, when a human is bitten by this spider, we can observe many different symptoms including priapism, a condition in which the penis is continually erect.”

In addition to the hours-long painful erection, the wandering spider’s bite can cause loss of muscle control, severe pain, difficulty breathing and, if not treated, death, due to oxygen deprivation (with anti-venom, the victim usually recovers within a week.)

Luckily, deaths from this impressive creature – it boasts a leg span of four to five inches – aren’t all that common. According to a website maintained by Rod Crawford, curator of arachnids at the University of Washington’s Burke Museum, “authoritative sources state that over 7,000 authentic cases of human bites from these spiders have been recorded, with only around 10 known deaths.”

Usually found on banana plantations in the tropics, wandering spiders do tend to, uh, wander, though, with recent sightings reported at a Whole Foods in Tulsa, Oklahoma and an IGA store in Russell, Manitoba and a biting reported in Somerset, England in 2005.

But while the spider’s bite may be painful – or even deadly -- its oddball venom may actually prove to be a valuable asset when it comes to treating erectile dysfunction in men.

“In Brazil, we have several reports of human accidents involving this spider and priapism as a symptom,” says Nunes, who recently published a study in the Journal of Sexual Medicine on the spider venom and its potential use in treating ED. “So we started to investigate which part of the venom – which toxin – would be responsible for this symptom. We found the toxin responsible and performed experiments using hypertensive rats which have severe erectile dysfunction. The toxin was able to normalize the erectile function in these animals.”

After isolating the toxin (known as PnTx2-6), Nunes and her colleagues then studied the mechanism of action and found that the toxin acts in a different pathway as compared with other erectile dysfunction drugs, such as Viagra.

“This is good because we know that some patients don’t respond to the conventional therapy,” she says. “This could be an optional treatment for them.”

Does the Brazilian wandering spider venom hold any potential benefits for sexually dysfunctional women?

Nunes says she hasn’t performed any experiments “to investigate the action of this toxin in females yet,” but she intends to do it “soon.”