Weird. I could see a single judge at the federal or state level being suckered in by such a lame argument, but not a Circuit Court Panel.

Anyway...what's left out is that in state cases (as a criminal case such as this would be), if the conviction is challenged in Federal Court and the Feds find that this could be a problem, and overturns the conviction, they almost always send the case back to the state court to see if it really was a problem...like this:

The Court finds that in this case using a knife to remove lawfully discovered contraband from the genitals of a suspect may be an unconstitutional application of force, and remands it to the state court to decide.

...and that's what mostly happens (though not always).

In that case, the state court that convicted him would hear arguments on this issue, now that they have guidance from the federal courts on the Constitutional issue, and could still find that it was not an unreasonable application of force, and uphold the conviction.

Fourth Amendment cases are actually usually pretty interesting with some good arguments coming from both sides to decide the case. This one is not, to my mind.

Somewhere between tazing him, hitting him in the head with a baton, then parking a cruiser on his head while removing the baggie with a blowtorch and wire cutters (clearly a little excessve) and saying "pretty please remove the bag and hand it to us, and be careful to not pull any of your pubic hairs out, Sir", is the "line" where the removal of the contraband goes from "reasonable" to "excessive"...where that line is, I don't know...but I'd say that using a knife to remove the baggie is on the "good" side of that line.

If they've (the Fed Court) has come up with a novel "reasonable standard to remove contraband", then what they'd do is come up with the "rule", and then send it back to the state court to decide whether or not the way it was done was "reasonable" or not.

The only way this doesn't go back to the state court, and the state court throws out his conviction and sets him free, is if the feds came up with a rule that said "no matter what the situation using a knife is per se unreasonable"...which I doubt they did.

This case is not over, I'm guessing.

Fish on...

Todd