Perhaps January 24, 2009 was a normal day for Joseph Edwards. He woke, tied some crack cocaine around his penis, threatened his ex-girlfriend with a gun, and went out into the Baltimore night.
His ex-girlfriend, however, had complained to the police about his threat. The police began to prepare an arrest warrant and went into the streets to look for Mr. Edwards. Around 11 p.m., the officers found him.
The police officers asked Mr. Edwards to approach them. He did, calmly. He "looked like he was just walking down the street" according to the officers. He didn't act like a man with a gun - he wasn't fussing with his waistline. He also didn't look like he was involved in drug dealing; the officers didn't see him doing any hand-to-hand transactions before they called out to him.
The officers were worried that Mr. Edwards might be armed though, because of his ex-girlfriend's statement. They put handcuffs on him and patted him down. They seated him on a curb.
The police soon heard that the arrest warrant had been issued. Mr. Edwards was put under arrest, and a police van came to where Mr. Edwards was. Right before being placed in the police van, Mr. Edwards was searched again.
Mr. Edwards, at that point, was on a city sidewalk, illuminated by a streetlight. The police officers loosened Mr. Edwards belt, and pulled his pants and underwear away from his body. The officers shined a flashlight down the back and front of his pants. When they shined the light down the front of his pants - with his underwear pulled back as well - the officers saw the crack cocaine tied to Mr. Edwards penis.
The officer who saw the drugs put on a glove. While another officer held Mr. Edwards' pants and underwear open, and while Mr. Edwards was cuffed from behind, the first officer reached into Mr. Edwards pants with a knife, and cut the drugs off of his penis.
The Fourth Circuit's opinion notes that "[n]othing in the record suggests that Edwards suffered any physical injury as a result of this action."
Mr. Edwards is Charged and Convicted
Mr. Edwards was charged with possession of crack cocaine with intent to distribute. He challenged this search and seizure as not consistent with the Fourth Amendment. The district court denied his motion. Mr. Edwards entered a conditional guilty plea - preserving his right to appeal the motion to suppress the evidence cut off of his penis.
Is Looking Down Someone's Pants A Strip Search?
The key legal question in Mr. Edwards's case is whether the search of Mr. Edwards was a strip search, or, as strip searches have been otherwise characterized, as a "sexually invasive search."
The government argued that because the only part visible to the public was Mr. Edwards "dip" or waistband area, this wasn't a strip search. The district court appears to have accepted this argument.
The Fourth Circuit disagreed. It held that a strip search is a search where clothing is moved to permit visible inspection of the naked body - the person doesn't have to be completely naked.
It was also persuaded by the facts of the most recent Supreme Court strip search case, Safford United School District v. Redding. The court of appeals noted that there,
The Court held that a school official's order that a student "remove her clothes down to her underwear, and then 'pull out' her bra and the elastic band on her underpants. . . . in the presence of the two officials who were able to see her necessarily exposed breasts and pelvic area to some degree," constituted a search that could be fairly called a "strip search." Id. at 2641
Can The Police Cut Things Off A Person's Penis On A City Street?
Because the search of Mr. Edwards was a sexually invasive search, its reasonableness under the Fourth Amendment gets a particular kind of scrutiny.
The Fourth Circuit held that this search simply does not survive the heightened scrutiny. The Fourth Circuit notes that the officer,
cut the sandwich baggie off Edwards' penis with a knife while Edwards was restrained in handcuffs, an act that could only cause fear and humiliation.
Moreover, the court of appeals was disturbed by how dangerous taking a knife to the penis of a handcuffed man on a city street is.
When [the officer] discovered the sandwich baggie containing suspected contraband tied to Edwards' penis, [the officer] 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, [the officer] took the knife and cut the sandwich baggie off Edwards' penis. We conclude that [the officer]'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 conviction was reversed and the evidence was suppressed.
What Does This Mean For Gender-Based Judging?
I can't help but think of what this case says about gender and identity in judicial nominations. Of course, the Fourth Circuit has to look to Safford Unified School District v. Redding - it's a very recent strip search case. That case involved the strip search of a 13-year old girl.
But something else about Safford and Mr. Edwards's case deserves attention.
Justice Ginsberg, talking about Safford, criticized her colleagues for never having been that age and that sex. She is quoted as having said that "I didn't think that my colleagues, some of them, quite understood."
This came up in the midst of Justice Sotomayor's nominations fight, her "wise Latina" remarks, and a national conversation about gender and judging.
Mr. Edwards case is, perhaps, a counterpoint to the concern that if you haven't had the life experience unique to a person affected by a ruling you can't impartially judge the issue. Here, both Judges in the majority in the Fourth Circuit's ruling were female - as was the district judge for that matter. The only male judge to consider the case wrote a dissent.
Or maybe it doesn't require a penis to know that it's not a good idea to put a knife to one on a city street when its owner is handcuffed behind his back.
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