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?

Fourth Amendment cases sometimes raise questions that (one hopes) would otherwise never need to be asked or answered. A Fourth Circuit panel’s split decision in United States v. Edwards appears to turn on the answer to just such a question.

In the course of (what the Fourth Circuit appears to treat as) a permissible search, a Baltimore City police officer located a plastic sandwich baggie containing several packets of cocaine tied around a man’s penis. The officer proceeded to cut the baggie off with a knife. According to a Fourth Circuit panel majority consisting of Judge Keenan and Judge Motz, this action violated the Fourth Amendment and required suppression. According to Judge Keenan’s majority opinion, “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.”

As Judge Diaz points out in dissent, however, the record evidence does not support the majority’s assertion about the nature of the risk posed by the police’s actions. The majority suggests that the police could have requested and used blunt-edged scissors, but the knife may have been no riskier: “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. The district court, moreover, made no mention of the knife in its ruling. This omission was not an oversight, but rather reflected the fact that the knife was not the focus of the parties’ evidentiary presentations.”

At points, Judge Keenan’s opinion hints at another possible rationale for the majority’s ruling–that the use of a knife in this circumstance “could only cause fear and humiliation.” But the majority does not rest on this rationale, and never undertakes a comparative assessment of the fear and humiliation involved in alternative methods of removing a baggie from this sensitive location. As Judge Diaz points out, the alternatives of untying, removing, or tearing the baggie, “would require that officers physically touch Edwards’ penis. . . . [And] a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife.”

Judge Diaz argues not only that the police did not violate the Fourth Amendment, but also that, if they did so, suppression was not the appropriate remedy.In responding to this point, the majority contends that suppression here serves the goal of deterrence. According to Judge Keenan, “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.” But the majority does not seek to deter such searches, only the use of a knife to remove what some of those searches reveal. And this poses a more significant problem: If the behavior to be deterred is routine, and if it poses a significant and unnecessary risk of harm, then wouldn’t the police have made a stray cut before now?

This question, and others, are raised by the panel opinion. It will be interesting to see whether, and if so, how, the case is revisited in en banc proceedings.

For those who track such things, all three judges on the panel were appointed by Democrats. Two were appointed by President Obama (Judge Keenan and Judge Diaz) and one by President Clinton (Judge Motz). Two judges are female (Judge Keenan and Judge Motz) and one judge is male (Judge Diaz).