Lead Opinion
Vacated and remanded by published opinion. Judge KEENAN wrote the majority opinion, in which Judge MOTZ joined. Judge DIAZ wrote a dissenting opinion.
OPINION
Joseph Edwards was convicted of one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841. After the district court accepted Edwards’ conditional guilty plea, the court sentenced him to a term of 120 months’ imprisonment.
On appeal, Edwards contends that the district court erred in denying his motion to suppress evidence seized in the course of a police search of his person. The police search included an officer’s use of a knife to cut a sandwich baggie containing suspected narcotics off Edwards’ penis, an act performed at night on a public street. We conclude that the manner in which the search was conducted was unreasonable and, therefore, that the district court erred in denying Edwards’ motion to suppress. We vacate Edwards’ conviction and remand his case to the district court.
I.
On January 14, 2009 at 6:00 p.m., Shawnetta Layton and Vontraya Dixon went to the Northern District Police Station in Baltimore alleging that, four hours earlier, Layton’s ex-boyfriend, Joseph Edwards, had threatened them by brandishing a firearm. Upon receiving this complaint, the Baltimore City police officer who initially spoke with Layton advised Detective Dennis Bailey that Edwards had used a gun in a domestic assault, and that officers were in the process of obtaining a warrant for his arrest. Bailey was familiar with Edwards, and knew that Edwards had a criminal history involving the use or sale of illegal drugs.
After the officers stepped out of their vehicle, Bailey asked Edwards to approach them. Bailey testified that the officers and Edwards “calmly” approached each other, and that the officers “weren’t too worried,” because Edwards “looked like he was just walking down the street.” According to Bailey, Edwards did not exhibit any characteristics generally associated with an individual who is armed. He did not clutch at the waistband area of his pants, nor did the officers observe any “hand-to-hand” movements by Edwards that could have indicated the occurrence of a drug transaction. Bailey further testified that he did not have any information indicating that Edwards possessed any drugs at that time.
The officers detained Edwards and placed handcuffs on him, securing his arms behind his back.
Bailey requested a police transport van to take Edwards to the police station and, while waiting for the van to arrive, Bailey conducted a pat-down search of Edwards. Bailey testified that during the pat-down, he checked everywhere on Edwards’ person where a weapon could be stored. Bailey did not find any weapons or contraband during the pat-down, nor did he feel any objects indicating that Edwards may be armed.
When the transport van arrived, the officers decided to search Edwards a second time before placing him into the van. While Bailey and three other male officers surrounded Edwards, Bailey unfastened Edwards’ belt, loosened it, and pulled Edwards’ pants and underwear six or seven inches away from his body.
As they were looking inside Edwards’ underwear, the officers saw that there was a plastic sandwich baggie tied in a knot around Edwards’ penis. From Bailey’s vantage point and with the assistance of the flashlight beam, Bailey could also see that the sandwich baggie contained smaller blue ziplock baggies, which contained “a white rocklike substance.”
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.
Ashley Keller, a nearby resident who had known Edwards for many years, was standing at her doorway and saw Edwards being searched by the officers. She observed that the officers “patted [him] down mostly,” and were “rambling with” and “feeling around” his pants. Keller noticed that Edwards’ pants were lower than usual, but she could not see his genitals or his underwear.
Edwards ultimately was charged in a single-count indictment with possession with the intent to distribute cocaine base, in violation of 21 U.S.C. § 841. Edwards moved to suppress the evidence, arguing that the officers’ search inside his underwear was unreasonable under the Fourth Amendment.
After a lengthy evidentiary hearing, the district court denied Edwards’ motion. The district court found that Edwards’ pants were only pulled out, not down, and that no members of the public were in a position to have seen Edwards’ underwear or genitals. The district court concluded that the search was reasonable under the Fourth Amendment.
Edwards entered a conditional guilty plea to the charge, reserving the right to appeal the district court’s ruling denying his motion to suppress. After the district court accepted Edwards’ plea and imposed sentence on him, Edwards timely filed this appeal.
II.
Edwards argues that the district court erred in denying his motion to sup
We first address the preliminary question whether Edwards was subjected to a strip search. The government argues that the search conducted by the police was not a strip search but merely was a search of Edwards’ “dip,” or waistband, area. We disagree with the government’s argument.
We conclude that the search conducted inside Edwards’ underwear is properly characterized as a strip search, which includes “the exposure of a person’s naked body for the purpose of a visual or physical examination.” Amaechi v. West,
We also find instructive the Supreme Court’s recent characterization of a strip search in Safford Unified School District No. 1 v. Redding,
The manner and scope of the search at issue in Redding, like the search we consider in the present case, resulted in the pulling outward of the suspect’s underwear, and the exposure of the suspect’s pelvic area. Although this case presents certain factual differences from the search at issue in Redding, the many similarities in the manner in which the searches were conducted further supports our conclusion that the police officers in the present case conducted a strip search of Edwards’ person.
III.
We apply well-settled principles of constitutional law in considering the reasonableness of the search of Edwards’ genital area. Most notably, the very text of the Fourth Amendment expressly imposes the requirement that all searches and seizures be reasonable. Kentucky v. King, — U.S. -,
An officer may search the person of an arrestee, and the area within the arrestee’s immediate control, without a
We further observe that the Supreme Court’s analysis in Bell v. Wolfish,
IV.
Under the Bell framework for determining the reasonableness of sexually invasive searches, the need for a particular search is balanced against the invasion of personal rights caused by the search.
We first consider the location of the search. The question whether a sexually invasive search is conducted in a private or a public setting is “especially relevant” to this Court’s determination of reasonableness. Polk v. Montgomery Cnty.,
We have “repeatedly emphasized the necessity of conducting a strip search in private.” Amaechi,
Because Bailey conducted the strip search of Edwards in the middle of a public, residential street, the search could have been viewed by others and, thus, was not conducted in a private setting. However, based on our conclusion that other factors of the Bell test are determinative of this appeal, we do not address whether the location of the search affected its reasonableness.
Under Bell, the reasonableness of the search also depends on the scope of the particular intrusion and the manner in which the search was conducted. Bell,
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.
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,
We further observe that, in fashioning the Bell test, the Supreme Court cited its decision in Schmerber v. California,
Other courts also have emphasized that sexually invasive searches are not to be conducted in a manner likely to instill fear in the suspect. See Evans v. Stephens,
The facts of the present case show that during the course of the search, Edwards’ hands were restrained in handcuffs behind his back as they had been since the officers first detained him. When Bailey discovered the sandwich baggie containing suspected contraband tied to Edwards’ penis, Bailey dropped his flashlight, obtained a knife, and put on gloves, while another officer continued to hold open Edwards’ pants and underwear. Without the aid of the flashlight, Bailey took the knife and cut the sandwich baggie off Edwards’ penis.
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 flashlight when Bailey removed the baggie containing the suspected drugs with his knife.
The government argues, nonetheless, that the additional factor in the Bell analysis, the justification for the search, establishes that the search was reasonable. See
We conclude that the government’s rationale is not persuasive because it effectively asks that we validate the entire search, irrespective of the actions that transpired during its course, based on the initial justification for the search. We are not permitted, however, to disregard conduct that occurs after a search has begun in our evaluation of the constitutional validity of that search. See Bell,
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. Such a result very well could undermine the police objectives of preserving the evidence and maintaining the safety of
Manifestly, in 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,
The government here expressly has disavowed reliance on any theory of exigent circumstances to support the removal of the contraband from Edwards’ penis by use of a knife. Thus, the lack of any justification for using the knife in this manner defeats the government’s argument that the search inside Edwards’ underwear was reasonable, and requires that the evidence be excluded.
We further observe that application of the exclusionary rule is especially appropriate in this case. The “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations.” Davis v. United States, — U.S. -,
First, the circumstances under which Edwards was searched are likely to recur. Indeed, the evidence in this case showed that Baltimore City police officers conduct searches inside the underwear of about 50 percent of arrestees, in the same general manner as the strip search performed on Edwards.
Third, the interests of deterrence further are advanced by discouraging the routine use of dangerous procedures of this type when, as here, the officers were not operating under any exigency. And, a decision excluding the evidence in this case would not burden the police officers with responsibility for the judgment errors of others. Cf. Davis,
Based on the record before us, we decline to apply a “but-for” causation analysis to consider admissibility of the evidence on the separate ground that the constitutional violation was not the actual cause of the discovery of the evidence. See Segura v. United States,
We also observe that the government has failed to raise an “inevitable discovery” argument for our consideration in this case. It is the government’s burden to prove inevitable discovery, United States v. Allen,
In view of these considerations, we hold that, under the Bell analysis, and in the absence of argument raised by the government supporting admission of the evidence on other grounds, the evidence unlawfully seized from Edwards’ person is subject to exclusion. Accordingly, we conclude that the district court erred in denying Edwards’ motion to suppress.
V.
For these reasons, we vacate the district court’s judgment and remand the case for further proceedings.
VACATED AND REMANDED
Notes
. While Bailey did not testify regarding the precise manner in which the handcuffs were secured on Edwards, Ashley Keller, a neighbor who witnessed the officers’ later search of Edwards, testified without contradiction that Edwards’ "hands were behind his back.”
. The district court found that the officers pulled Edwards’ belt and his pants "away from [his] body,” and found that "[fihere is no evidence that the pants were pulled down by the officers.”
.In total, 43 smaller blue ziplock baggies were found in the sandwich baggie tied to Edwards’ penis, which were later determined to contain a total of 2.98 grams of cocaine base.
. Nothing in the record suggests that Edwards suffered any physical injury as a result of this action.
. While we address Detective Bailey’s removal of the baggie from Edwards' penis as an issue which impacts the reasonableness of the search rather than as a seizure, our analysis would be the same whether the removal were characterized instead as a seizure. We recently addressed the distinction, noting that “[a] search compromises the individual interest in privacy,” while a seizure "would ... invade the owner’s possessory interest.” United States v. Williams, 592 F.3d 511, 521 (4th Cir.2010) (quoting Horton v. California,
. Because Bailey could see from his vantage point that the sandwich baggie tied around Edwards' penis did not contain unpackaged amounts of suspected narcotics, but instead held many smaller blue ziplock baggies containing "a white rocklike substance,” Bailey could have torn the sandwich baggie without compromising the evidence.
. Detective Bailey testified on cross-examination at the suppression hearing, in pertinent part, as follows:
“Question: So is it customary for Baltimore City police officers to search the underwear area or the dip areas of people that are arrested?
Detective Bailey: I would say it's about 50 percent of the time, because nobody likes to do that search.... 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.”
Dissenting Opinion
dissenting:
Joseph Edwards was arrested pursuant to a valid warrant charging him with assault and handgun offenses, and searched incident to his arrest. The search did not result in public exposure of Edwards’ genitals or bodily intrusion, was witnessed only by male officers, and occurred prior to placing Edwards in a police van for transport. The majority opinion disputes none of these facts. Instead, it singles out as constitutionally unreasonable the use of a knife by an officer to remove a drug baggie strapped to Edwards’ penis, and discovered in plain view during an otherwise lawful search. I respectfully dissent — not to endorse the carte blanche use of a knife to remove contraband from a defendant’s
As the majority correctly notes, “[t]he test of reasonableness [with respect to a search] .... requires a balancing of the need for the particular search against the invasion of personal rights that the search entails,” Bell v. Wolfish,
The majority opinion focuses on the first three Bell factors, assuming, without deciding, that the officers were justified in searching Edwards. As to this latter issue, the search occurred incident to Edwards’ arrest on a warrant stemming from an alleged domestic dispute earlier in the day. The alleged victim told police that Edwards pointed a firearm at her during the dispute, and the arrest warrant noted that Edwards was wanted on assault and handgun charges. Thus, as the district court concluded, officers searching Edwards had “reason to believe a weapon was involved, and there was a reason to want to make sure that there would be no safety issues before putting Mr. Edwards in the van.” Further, the district court noted that Detective Bailey was aware of Edwards’ prior drug record, thus suggesting that a more comprehensive search for contraband was in order. Based on the facts presented, I am satisfied that the officers were justified in initiating the search, and it seems that the majority agrees.
As to the first Bell factor — the location — the search regrettably was conducted on a public street and there is no gainsaying that it would have been better had the officers removed the defendant to the privacy of the nearby police van before peering into his waistband and partially exposing his pelvic area. The record, however, is silent as to whether others were present inside the van. But were the van occupied, conducting the search there may have exposed Edwards’ genitals to the occupants, resulting in a greater invasion of privacy. Nevertheless, the search unquestionably occurred in public, which I concede cuts in favor of the majority’s decision to reverse.
Turning to Bell’s consideration of the scope and manner of the search, I accept that the intrusion visited on Edwards meets the technical definition of a “strip search,” as the majority holds. This was not a case, however, where the defendant was forced to remove all of his clothing in full view of the public. Moreover, it is undisputed that Edwards’ pelvic area was exposed only to the male officers conducting the search. Thus, save for Detective Bailey’s decision to use the knife to remove the drug baggie tied to Edwards’ penis, it appears the majority would have little trouble affirming the district court’s determination that the search was reasonable.
I respectfully disagree that the use of a knife was unnecessarily dangerous, and thus that the search was unreasonable. My distinguished colleagues accept that “[s]ome physical contact is permissible, and indeed unavoidable, when police reach into a suspect’s pants to remove drugs the suspect has chosen to hide there,” United States v. Williams,
Simply put, in assessing whether the police acted reasonably, we need not ignore Edwards’ decision to store drugs in a
Peering inside Edwards’ waistband, officers saw a baggie tied around his penis that contained smaller baggies that, in turn, contained “a white rocklike substance.” At that point, the officers were entitled to seize the contraband discovered during a lawful search incident to arrest. See Williams,
That Edwards was handcuffed at the time does not negate the officers’ legitimate need to seize plainly visible contraband, as other courts have correctly determined. For example, the defendant in Jenkins was unquestionably handcuffed at the time of the search,
The majority does not challenge the officers’ authority to seize visible contraband; rather, it faults the method used as unnecessarily dangerous. Based on the location of the contraband, however, there was simply no delicate way to seize it. As the government notes, the use of the knife “presumably permitted Detective Bailey to remove the contraband without actually touching the defendant’s penis (which would have been a greater intrusion on the defendant’s person) or uncuffing the defendant and allowing him to remove the baggie,” which would have posed a security risk for the officers. Appellee’s Br. 16 n. 5.
The majority does not suggest that the officers should have allowed Edwards to
The majority notes 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.” Maj. Op. at 886. While this conclusion is unassailable, the record of the suppression hearing offers little information about the knife, the manner in which it was used to remove the contraband, or how long it took to accomplish the task.
Based on this record, I fail to see how we can characterize the officers’ actions as unreasonable. The majority disagrees, but in doing so it surmises that there were better options available to the officers. Outside of moving Edwards to the police van before conducting the search, however, I am at a loss to suggest one. In any event, even if we might in the comfort of chambers “imagine some alternative means by which the objectives of the police might have been accomplished,” our retrospective ability to do so does not mean that the method chosen by the officers here was unreasonable. United States v. Sharpe,
A final point, albeit one not pressed by the government before the district court or on appeal: even if the majority is correct in its assessment that the method used to remove the contraband was constitutionally unreasonable, it is not clear that suppression is the proper remedy. As the Supreme Court has emphasized, “[s]uppression of evidence ... has always been our last resort, not our first impulse.” Hudson v. Michigan,
In declining to expand the exclusionary rule to knock-and-announce violations, Hudson cautioned that “[exclusion may not be premised on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.”
Post-Hudson, the Ninth Circuit in United States v. Ankeny,
Noting that “[u]nnecessary destruction of property or use of excessive force can
Similarly, in United States v. Watson,
Citing Hudson, the court found “no causal connection” between the alleged violation and the search of the car. Id. Rather, “[h]ad [the police] said or done nothing to him, drawn and pointed no guns, but merely asked the driver for consent to search the car, the evidence would have been discovered.” Id. Thus, even if police used excessive force, the remedy would be a suit under “42 U.S.C. § 1983 (or state law) rather than the exclusion from his criminal trial of evidence that had been seized in an otherwise lawful search.” Id.
Hudson, Ankeny, and Watson cast doubt on whether exclusion is the appropriate remedy in this case, particularly if, as I understand it, the majority’s reasoning turns on the means employed to seize evidence discovered in plain view during an otherwise lawful search. As in Ankeny and Watson, had the officers not used what the majority perceives to be an unreasonable method to remove the drug baggie, they nevertheless would have discovered the contraband and (at some point) seized it in some other manner. Put simply, the plainly visible contraband was already discovered before the officers determined to use a knife to remove it. Thus, I question whether the record supports the causal connection that Hudson requires before resorting “to the massive remedy of suppressing evidence of guilt,”
Finally, I am skeptical about the deterrence value of the rule announced by the majority today, particularly given the lack of palatable options available to these officers on the bizarre facts presented. In advancing the propriety of the exclusionary rule, the majority notes that Detective Bailey testified that in nearly 50 percent of arrests, Baltimore City police officers conduct similar searches inside the defendants’ underwear. Even if we are willing to credit that statistic, it seems to me that exclusion would be appropriate only if the majority concluded that the officers lacked suspicion to search inside Edwards’ underwear or that the initial visual search was outside the bounds of the Fourth Amendment. That, however, would be a different opinion. What the majority does instead is single out the use of the knife to invalidate the search in toto. As to that narrow basis for the majority’s holding, however, there is simply no evidence in the record,
In any event, I need not resolve that issue because I am convinced that the officers acted reasonably. Accordingly, I dissent.
. The majority appears particularly critical of the officers’ decision not to use "the flashlight when Bailey removed the baggie containing the suspected drugs with his knifed” noting that the search took place at night in a dark area. Maj. Op. at 885. But that complaint overlooks the majority's earlier assertion, amply supported by the record, that a streetlight partially illuminated the area where the search was conducted. Id. at 881.
. The use of a knife to seize contraband was also of little constitutional moment in Partlow v. State,
. The Court offered the following, not wholly dissimilar, example: "When, for example, a confessed suspect in the killing of a police officer, arrested (along with incriminating evidence) in a lawful warranted search, is subjected to physical abuse at the station house, would it seriously be suggested that the evidence must be excluded, since that is the only ‘effective deterrent?’ ” Hudson,