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Cop and Feel: Don't Cut Drugs off Suspect's Penis with Knife

By Robyn Hagan Cain on January 04, 2012 | Last updated on March 21, 2019

The Fourth Circuit Court of Appeals seems hung up on the "reasonable" aspect of "unreasonable search and seizure."

Case in point: Last week, the Fourth Circuit ruled that it is unreasonable to cut a bag of drugs off of a suspect's penis with a knife at night, and suppressed the evidence under the exclusionary rule.

When you finish cringing at the thought of this scenario, we'll move on to the facts.

Baltimore Police stopped the appellant, Joseph Edwards, after his ex-girlfriend reported that he threatened her with a firearm. Officers located, detained, and handcuffed Edwards. After confirming with a police station employee that an arrest warrant for Edwards had been signed, Detective Dennis Bailey told Edwards that he was under arrest.

While waiting for a police transport to take Edwards to the station, Bailey conducted a Terry search of Edwards; he did not find any weapons or contraband during the pat-down, nor did he feel any objects indicating that Edwards may be armed.

The transport officers decided to perform a second search before loading Edwards in the van, this time loosening Edwards' pants and pulling his underwear away from his body to search with a flashlight. The second search revealed a plastic sandwich baggie tied in a knot around Edwards' penis. Bailey could see that the sandwich baggie contained smaller blue zip lock baggies, which contained "a white rocklike substance," and concluded that the baggie and its contents were consistent with the packaging or distribution of a controlled substance.

An officer cut the baggie off of Edwards' penis with a knife, and seized the evidence.

Based on the seized drugs, Edwards was charged with possession with the intent to distribute cocaine base. He moved to suppress the evidence, arguing that a late-night, middle-of-the-street underwear probe was an unreasonable search. The Fourth Circuit Court of Appeals agreed.

The Fourth Circuit found that the search in this case constituted a strip search under the Supreme Court's reasoning in Safford Unified School District No. 1 v. Redding. (The court also noted that strip searches, particularly sexually-invasive strip searches, should be conducted in private, not in the middle of the street.)

The court excluded the evidence, ruling that the police had conducted an unreasonable search because the baggie could have been removed under less dangerous circumstances, (i.e., untying the bag, tearing the bag to remove its contents, requesting blunt scissors to remove the bag). In the opinion, the Fourth Circuit wrote that the "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 Fourth Circuit Court of Appeals has a low tolerance for unreasonable searches, which is good news for defense attorneys. If you have a client whose life -- or limb -- was placed in harm's way during an unreasonable search, you may be able to win a suppression motion under the exclusionary rule.

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