May Police Cut a Drug Baggie off a Suspect’s, uh, Nether Regions?

May Police Cut a Drug Baggie off a Suspect’s, uh, Nether Regions?

Seriously. It’s a question that needed answering. The U.S. Court of Appeals for the Fourth Circuit has ruled that using a knife for such a delicate deed is too dangerous.

The case involves a Baltimore man arrested and convicted of possession with intent to distribute cocaine base. Volokh Conspiracy and walshslaw have discussions on the opinion here and here.

The Fourth Circuit, in sum, found that an officer’s use of a knife to cut a sandwich baggie of crack off his penis, an act performed at night on a public street, was unreasonable.

The man, Joseph Edwards, had tried to have the evidence suppressed while his case was in federal district court, arguing that officers’ search inside his underwear was unreasonable under the Fourth Amendment.

The trial judge rejected the motion, concluding that Edwards’s pants were only pulled out, not down, and that no members of the public caught a glimpse of his man parts. He entered a conditional guilty plea and was sentenced to 10 years in prison.

The Fourth Circuit, however, said that even assuming that the search was justified in the first place, the court must consider whether the contraband was seized in a manner that “poses an unnecessary risk of harm to the person being searched.” The ruling wipes out the district court’s ruling and could lead to the government dropping its case.

“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,” the court said, in an opinion by Judge Barbara Milano Keenan, an Obama appointee. “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.”

Keenan was joined in the opinion by Judge Diana Gribbon Motz, a Clinton appointee. They suggested alternatives to cutting the baggie with a knife — including untying, removing, or tearing it, or using blunt scissors to do the job.

Judge Albert Diaz, another Obama appointee, dissented.

“Simply put, in assessing whether the police acted reasonably, we need not ignore Edwards’ decision to store drugs in a rather unconventional location. Indeed, our cases recognize that context matters in assessing reasonableness under the Fourth Amendment, as we have upheld intrusive searches when justified by the circumstances,” He wrote. “Based on the location of the contraband . . . there was simply no delicate way to seize it.”

May Police Cut a Drug Baggie off a Suspect’s, uh, Nether Regions?
Joe Palazzolo
Fri, 30 Dec 2011 19:07:26 GMT