CA4: Using knife to remove bag of drugs from penis in public was unreasonable

The use of a knife to remove a bag of drugs from a suspect’s penis in a public place at the time of arrest was a “sexually intrusive strip search” and was governed by Bell v. Wolfish. Here, it was unreasonable, and the search is suppressed. United States v. Edwards, 666 F.3d 877 (4th Cir. 2011):

Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.4 [4 Nothing in the record suggests that Edwards suffered any physical injury as a result of this action.] After Bailey cut the baggie, he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.

Bailey testified that there were several reasons he conducted this second search before placing Edwards into the police van. Bailey stated that “[a] complete search is always your best option,” because often “people hide things in those areas.” Bailey also stated that because Edwards was being arrested for a handgun violation, Bailey thought that a more extensive search was warranted to ensure the safety of the officers, including the driver of the transport van. Finally, Bailey testified that he was aware of Edwards’ criminal history, including that he previously had been arrested on drug charges. When asked whether it was customary for officers in Baltimore to search inside the underwear of arrestees, Bailey testified that “it’s about 50 percent of the time, because nobody likes to do that search. 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.”

The officers conducted this search inside Edwards’ underwear in the middle of the street beside the police transport van. Although Edwards was searched at 11:30 p.m., a streetlight partially illuminated the area. All four officers, each of whom was male, saw the drugs being removed from inside Edwards’ underwear, but the district court found that only two officers, including Bailey, saw Edwards’ penis during the course of the search.

. . .

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. 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). Thus, the reasonableness of a sexually intrusive search depends in part on the manner in which the search was conducted and the consideration given to the privacy interests of the suspect. See Lafayette, 462 U.S. at 645; United States v. Ashley, 37 F.3d 678, 681-82 (D.C. Cir. 1994).

The safety of the suspect must be considered as well. A search that is theoretically permissible in one context may be impermissible in another if it is conducted in a cruel, painful, or dangerous manner. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir. 1988) (considering “whether the type of search exposes the suspect to pain or danger,” in court’s analysis of invasiveness of search, and upholding search in part because it did not result in “pain or danger” to defendant); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. 1981) (en banc) (considering whether search was painful or dangerous in analyzing invasiveness of search).

Noted in: WalshLaw: How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part? and picked up by Volokh Conspiracy: Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts.