666 F.3d 877 (4th Cir. 2011), 10-4256, United States v. Edwards

Docket Nº:10-4256.
Citation:666 F.3d 877
Opinion Judge:BARBARA MILANO KEENAN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph EDWARDS, Defendant-Appellant.
Attorney:Meghan Suzanne Skelton, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee. James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Debra L. Dwyer, Assistant United States Attorne...
Judge Panel:Before MOTZ, KEENAN, and DIAZ, Circuit Judges. Vacated and remanded by published opinion. Judge KEENAN wrote the majority opinion, in which Judge MOTZ joined. Judge DIAZ wrote a dissenting opinion. DIAZ, Circuit Judge, dissenting:
Case Date:December 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 877

666 F.3d 877 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph EDWARDS, Defendant-Appellant.

No. 10-4256.

United States Court of Appeals, Fourth Circuit.

December 29, 2011

Argued: Sept. 23, 2011.

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ARGUED:

Meghan Suzanne Skelton, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant.

Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant.

Debra L. Dwyer, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before MOTZ, KEENAN, and DIAZ, Circuit Judges.

Vacated and remanded by published opinion. Judge KEENAN wrote the majority opinion, in which Judge MOTZ joined. Judge DIAZ wrote a dissenting opinion.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

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.

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Bailey and three other officers immediately attempted to locate Edwards, canvassing the neighborhoods that Edwards was known to frequent. At 11:15 p.m., the officers observed Edwards walking on a residential street. Although it was dark outside, there was a street lamp that provided some light allowing the officers to identify Edwards.

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.1 Bailey testified that the officers placed Edwards in handcuffs to ensure their safety, based on their belief that Edwards might be armed. As Bailey contacted an employee at the police station to confirm that an arrest warrant had been executed, Edwards was seated on a curb. After being informed that the arrest warrant had been signed, Bailey told Edwards that he was under arrest.

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. 2 The officers directed a flashlight beam inside both the front and the back of Edwards' underwear.

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." 3 Based on his training and experience, Bailey concluded that the baggie and its contents were consistent with the packaging or distribution of a controlled substance.

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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 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.

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 suppress,

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because the search conducted inside his underwear was unreasonable under the Fourth Amendment. We review a district court's factual findings underlying a motion to suppress for clear error, and the court's legal determinations de novo. United States v. Wardrick, 350 F.3d 446, 451 (4th Cir.2003). When a motion to suppress has been denied, we review the evidence in the light most favorable to the government. United States v. Hamlin, 319 F.3d 666, 671 (4th Cir.2003).

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, 237 F.3d 356, 363 (4th Cir.2001). A movement of clothing to facilitate the visual inspection of a suspect's naked body, as...

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