Friday, December 30, 2011

The Junk and the Junk

A recent decision by the 4th Circuit Court of Appeals simultaneously engenders legitimate debate about the 4th amendment and releases my inner 12-year-old. “The Case of the Rock on the Rod”… “The Stash on the Staff”… “What’s That Sack by Your Sac?”… There, I’m done. For now.

In January 2009, Joseph Edwards was arrested by Baltimore police on a complaint by his ex-girlfriend, who claims he had threatened her with a gun. Quite reasonably, the police patted him down to make sure he wasn’t carrying a weapon at the time of his arrest. He wasn’t.

But, after Edwards had been handcuffed and before he was transported to the police station, officers decided to check one more time. This time, the officers surrounded him and pulled the top of his sweatpants and underwear away from his body, shining a flashlight at his privates. When what to their wondering eyes should appear… not a gun, of course, but a baggie containing 43 smaller plastic bags, which in turn contained just short of three grams of crack cocaine.

But, as you have no doubt already determined from the puerile display in my introductory paragraph, the baggie was tied around Edwards’s penis. Detective Dennis Bailey “put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.” Edwards was not hurt in the incident. That’s pretty much the entirety of the relevant information: there is much strutting about with respect to whether this constituted a strip search and similar triviata. But the essential facts are noted above.

“So, what’s the problem?,” you might well ask. Well, after a conditional guilty plea to possession with intent to distribute cocaine base, Edwards appealed, arguing that the search was unreasonable. And the 4th Circuit not only agreed, but vacated the conviction.

Ah, you think, that’s because there was no legitimate reason to search inside Mr. Edwards’s underwear: the pat-down, coupled with the fact that Mr. Edwards’s hands were handcuffed behind his back, were surely enough to ensure the officers’ safety. There was no indication that Edwards was in possession of crack, therefore no probable cause for the search. Nope, not it.

Oh, so it was the public nature of what is called a “sexually invasive search.” There was no reason to subject Edwards to search of what’s inside his underwear in public: take him back to the station and do it there. Nope, not it.

What, then? The conviction was vacated because Bailey used a knife to secure the evidence. The finding is based primarily if not solely on the argument that “the drugs were removed from Edwards’ person in an unnecessarily dangerous, and thus unreasonable, manner.” There’s more:
Moreover, assuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, 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.

OK, Gentle Reader, here’s where I remind you that I’m neither a lawyer not a Constitutional scholar, merely a more-interested-than-the-average-person layman. I can’t tell you if, or how, U.S. v. Robinson or Bell v. Wolfish pertain, legally. I’m confused by why the government can’t claim inevitable discovery on the appeal because they didn’t make that point earlier, but Edwards can actually win the case with an argument he doesn’t seem to have made at all. (His argument was that the search was illegal, not that it was inappropriately conducted.)

I am, in other words, just a grumpy old guy arguing on the basis of what makes sense. And what makes sense might conceivably result in what actually happened in this case, but not for the reasons articulated by Judge Barbara Milano Keenan, who wrote the majority opinion.

The Court never made a ruling on the justification for the search per se, which seems to me to be the strongest case Edwards had. The only reasonable criterion to justify a search, even of a known drug dealer (in the absence of specific evidence that he carrying right now) is officer safety. That’s a pretty shaky argument, frankly. The suspect was handcuffed and had been patted down, we presume thoroughly (and, if not, whose fault was that?). This is Joseph Edwards we’re talking about, not Harry Houdini. But apparently there’s legal precedent, so maybe…

There is no doubt that the police could have handled this situation better. Having found something… erm… interesting that clearly wasn’t a weapon, they could easily have transported Edwards to the station and removed the baggie there: this would provide for greater privacy, better light (apparently Bailey didn’t even use a flashlight for better vision during the baggie-echtomy), and probably a safer environment all around. There’s a significant difference, however, between saying that a different course of action would have been preferable and saying the one actually enacted was unconstitutional. And I confess myself unmoved by the suggestion that the use of the knife (as opposed to being arrested in a public venue) “could only cause fear and humiliation.”

After all, who was responsible for the situation? The cops? No, it was Mr. Edwards who decided to attach his stuff to his stuff. I can think of only two motivations. One would be that he knew he might be stopped by the police and suspected (with reason) that cops aren’t exactly thrilled about conducting the kind of search that ultimately uncovered his drugs. The other is a sort of burlesque routine we can see the likes of Benny Hill enacting: “Hmm… I’ve got to carry this baggie full of illicit drugs around and I don’t have any pockets. [loosens drawstring of sweatpants, looks within] Ooooh… what’s that thing? [smirking take to audience] Let’s tie it to that!”

Either way, there’s inevitably a tradeoff between safety and propriety, as dissenting Judge Alberto Diaz notes. He writes that the options proposed by the majority,
… untying, removing, or tearing the baggie—would require that officers physically touch Edwards’ penis. In my view, however, 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.
Let’s face it, I’m guessing the founding fathers didn’t envision a constitutional crisis about the correct means by which to remove baggies of drugs from penii. Is it relevant, by the way, that the two female judges suggested means which, though arguably safer, would involve more physical contact with Mr. Edwards’s genitalia, and the male judge didn’t like those suggestions?

It’s also worth mentioning, as Diaz does, that “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.”

More to the point, if we grant the legitimacy of the search itself, irrespective of the means by which it was conducted, the drugs had already been discovered, legally, by the time the allegedly inappropriate removal. It therefore makes no sense to suppress the evidence. Mr. Edwards might have grounds for a complaint or even a civil suit, but that’s another matter altogether.

Quoting Judge Diaz’s dissent, again:
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 [v. Michigan] requires before resorting “to the massive remedy of suppressing evidence of guilt.”
The bottom line is that I’m willing to grant suppression of the evidence because the search itself was illegal. But if we’re going to grant the legitimacy of the search, then we need to keep the evidence. The majority decision may be legally sound. If so, it’s a bad law.

But we did get an opportunity to snicker at stupid dick jokes because of this case. At least that’s something.

[Two side notes, completely off topic.]

1). Despite not writing here until February, and taking over a month off in October and November, I’ve managed to crank out 100 blog pieces in 2011. That’s small potatoes for many people, of course, but for me it’s something of an accomplishment. I thank you, Gentle Reader, for your support, your commentary and for your “likes” on the Facebook page. I don’t know if I’ll write anything else before Sunday. If not (or even if so, obviously), Happy New Year, one and all.

2). A reminder to vote, if you haven’t already done so, for the 1st Annual (Maybe) Curmie Award, presented to whoever most embarrasses the profession of education. You must vote on the electronic ballot in the upper-right corner of this page; comments with indications of preferences will not be counted. Descriptions of the nominees are found here.]

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