COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Annunziata, Bumgardner, Lemons and Frank
Argued at Richmond, Virginia
BRYON K. HUGHES, S/K/A
BRYAN K. HUGHES
OPINION BY
v. Record No. 0702-98-2 JUDGE SAM W. COLEMAN III
FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Bryan K. Hughes was convicted in a bench trial of possession
of cocaine with intent to distribute in violation of Code
§ 18.2-248. He contends the trial court erred by denying his
motion to suppress evidence obtained during a warrantless body
cavity search.
In an unpublished opinion, a divided panel of this Court
affirmed the trial court's ruling. We granted rehearing en banc.
Upon rehearing, we hold that the trial court erred by denying
Hughes' motion to suppress the evidence. Accordingly, we reverse
the trial court's ruling, vacate the panel decision, and dismiss
the indictment.
BACKGROUND
On July 10, 1997, Detective J. Renee Payne of the Richmond
Police Department received the following message on her "voice
mail" from a known and reliable informant:
there was a very light complected male
standing out in the front walk in the area
of 320 West Grace Street, and that that
person was dealing narcotics there, that he
was keeping the money in his left pocket,
and that drugs were kept in his underwear
area, and that he was wearing a white shirt,
blue jeans and he had very pretty hair.
Acting on this information within ten minutes of its receipt,
Payne, accompanied by two other uniformed officers, arrived at the
intersection of Grace and Madison and observed Hughes standing in
the area indicated by the informant. The officers determined that
Hughes, "a very light complected male with dark wavy hair wearing
blue jeans and a white shirt," was the individual described in the
tip.
Payne approached Hughes and advised him "that [she] had
received information that a person fitting his description was out
there dealing narcotics." Hughes denied possessing any drugs or
weapons and consented to a pat-down search, which revealed money
in Hughes' left pocket. When Payne discovered the money, she
declared, "Well if the money is in your left pocket, then, the
drugs should be in your underwear." Hughes agreed to allow Payne
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to "check further." To "ensure [Hughes'] privacy," Officer Rogers
escorted Hughes into the front hallway of a nearby apartment
building. Rogers "check[ed]" Hughes' underwear, but he found
nothing. Rogers then said, "Well, if it's not in the front of
your underwear, it's got to be behind you," adding "You don't mind
going ahead and bending over then, right?" Without responding,
Hughes bent over. "At that time, [Rogers] told him to cough and
it was at that point when [Hughes] coughed that [he] saw the
plastic bag." When Rogers observed part of a plastic bag
protruding "halfway" from Hughes' anus and "shake in the air,"
using gloves, he removed the bag, which contained cocaine, from
Hughes' anal cavity.
ANALYSIS
Hughes contends the cocaine was seized by the police during
an unlawful body cavity search and that the trial court erred by
failing to suppress the evidence. Hughes argues that he did not
voluntarily consent to the search and that the body cavity
inspection and removal of the plastic bag exceeded the scope of
his consent to the pat-down search and his consent to allow the
officers to "check further." Hughes also argues that the officers
lacked probable cause to arrest him; therefore, the search could
not have been a lawful search incident to arrest.
When we review a trial court's denial of a suppression
motion, "[w]e view the evidence in a light most favorable to
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. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
In our review, "we are bound by the trial court's findings of
historical fact unless 'plainly wrong' or without evidence to
support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487
S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). However, we consider de novo
whether those facts implicate the Fourth Amendment and, if so,
whether the officers unlawfully infringed upon an area protected
by the Fourth Amendment. See id.
"A warrantless search is per se unreasonable and violative of
the Fourth Amendment of the United States Constitution, subject to
certain exceptions." Tipton v. Commonwealth, 18 Va. App. 370,
373, 444 S.E.2d 1, 3 (1994) (citation omitted). However, searches
made by law enforcement officers pursuant to a valid consent to
search do not implicate the Fourth Amendment. See Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973); Iglesias v. Commonwealth,
7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988) (en banc). When
relying upon consent as the justification for a search, the
Commonwealth must prove, based upon the totality of the
circumstances, that the consent was freely and voluntarily given.
See Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Hairston
v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d 668, 669 (1975);
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Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879
(1998). "A consensual search is reasonable if the search is
within the scope of the consent given." Grinton v. Commonwealth,
14 Va. App. 846, 850-51, 419 S.E.2d 860, 862 (1992).
The United States Supreme Court has not expressly defined the
term "search." A search for Fourth Amendment purposes encompasses
a wide range of investigative techniques, including wiretapping,
electronic surveillance or eavesdropping, photo-optic
surveillance, and encompasses physical entry or visual inspection
of personal papers, containers, vehicles, buildings, or the
person. As Professor LaFave points out:
[u]nder the traditional approach, the term
"search" is said to imply
"some exploratory investigation, or an
invasion and quest, a looking for or seeking
out. The quest may be secret, intrusive, or
accomplished by force, and it has been held
that a search implies some sort of force,
either actual or constructive, much or
little. A search implies a prying into
hidden places for that which is concealed
and that the object searched for has been
hidden or intentionally put out of the way.
While it has been said that ordinarily
searching is a function of sight, it is
generally held that the mere looking at that
which is open to view is not a 'search.'"
1 Wayne R. Lafave, Search and Seizure § 2.1(a), at 379 (3d ed.
1996) (quoting C.J.S. Searches and Seizures § 1 (1953)).
Under the Fourth Amendment, a search is an invasion into a space
or area where a person has a reasonable expectation of privacy
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in the "person," or the person's "houses," "papers," or
"effects."
A search of the person may range from a Terry-type pat-down
to a generalized search of the person to the more intrusive
strip search or body cavity search. "A strip search generally
refers to an inspection of a naked individual, without any
scrutiny of his body cavities. A visual body cavity search
extends to a visual inspection of the anal and genital areas."
Commonwealth v. Thomas, 708 N.E.2d 669, 672 n.4 (Mass. 1999).
"A 'manual body cavity search' includes some degree of touching
or probing of body cavities." Cookish v. Powell, 945 F.2d 441,
444-45 n.5 (1st Cir. 1991).
Here, Hughes was subjected to all three -- a strip search,
a visual body cavity search, and a manual body cavity search.
Having Hughes disrobe and looking into his underwear for drugs
was a strip search of his person within the purview of the
Fourth Amendment. The search became a visual body cavity search
when Officer Rogers had Hughes bend over to expose his anus,
enabling Rogers to visually inspect the anus. The visual search
became more intrusive when Rogers "told" Hughes to cough in
order to expand the officer's view of the anus and an even more
intrusive physical body cavity search when Rogers removed the
plastic bag from Hughes' anal cavity.
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For purposes of determining whether Hughes voluntarily
consented to the body cavity searches, we will assume that the
officers' initial encounter with Hughes was lawful and that
Hughes' consent to a pat-down search or visual inspection inside
his underwear was not tainted by or the result of an illegal
detention. See Baldwin v. Commonwealth, 243 Va. 191, 413 S.E.2d
645 (1992) (holding that a confrontation with an officer who
commanded a suspect to approach car was a consensual encounter);
cf. McGee, 25 Va. App. at 200-01, 487 S.E.2d at 262-63 (holding
that a police officer's confrontation with an individual,
informing him that he has been identified as a suspect in a
particular crime which the officer is investigating, is a seizure
and is significant in determining whether the consent to search is
voluntary). After Hughes encountered or was detained by the
officers, he unquestionably consented to their searching his
person. However, we hold that having Hughes cough in order to
visually inspect the anus and the manual body cavity search of
removing the plastic bag from Hughes' anal cavity exceeded the
scope of Hughes' consent to search his person.
We held in Moss v. Commonwealth, 30 Va. App. 219, 225, 516
S.E.2d 246, 249 (1999), that a defendant's consent to search his
person does not include consent to conduct a strip search. In
Moss, the defendant was approached by a police officer in a gas
station parking lot. The officer identified himself and asked for
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permission to search the defendant and the defendant's car for
drugs. The defendant consented. While one officer was searching
the defendant, another officer observed a marijuana cigarette in
the vehicle. The officers also asked for and received consent to
search the passenger. Three officers conducted a strip search of
the passenger in the restroom of a nearby gas station and
discovered crack cocaine secreted in the passenger's buttocks.
After recovering the narcotics from the passenger, the officers
suspected that the defendant might also be concealing narcotics.
They conducted a strip search of the defendant and discovered
crack cocaine in the defendant's buttocks. We held that the
defendant's consent to search his person did not constitute
consent to conduct a strip search or a body cavity search. See
id. at 225, 516 S.E.2d at 249.
Here, we find that Hughes consented to a search of his
person, but we hold, as a matter of law, that he did not consent
to a body cavity search, specifically the visual inspection of the
anus after coughing or the manual anal cavity search. In Taylor
v. Commonwealth, 28 Va. App. 638, 642, 507 S.E.2d 661, 663 (1998),
we held that strip searches, which are "peculiarly intrusive,"
are constrained by due process requirements of reasonableness
and require "special justification." In this case, the officers
approached Hughes and asked if he had any drugs or weapons on him.
Hughes replied that he did not. Payne then asked Hughes if she
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could conduct a pat-down search, and Hughes consented. When the
pat-down resulted in the discovery of money, Payne asserted that
the "drugs should be in [Hughes'] underwear." Hughes then
consented to allow the officers to "check further." Hughes was
escorted to an apartment building across the street where he was
asked to disrobe, which he did. Rogers' strip search failed to
uncover any contraband. Rogers then asked Hughes to bend over and
"told him" to cough. 1 At that point, Rogers saw part of a plastic
1
The transcript shows that the search occurred as follows:
CROSS-EXAMINATION
BY MR. FEINMEL [defense counsel]:
Q. Officer Jones, you did not ask Mr.
Hughes for permission to search him; is that
correct?
A. Officer Payne ask [sic] me to search.
Q. You never did, though, you took him into
the house with you?
A. No, I took him in and started searching
him.
Q. At the time that you took Mr. Hughes to
the house and started searching him, was he
handcuffed?
A. I don't know if he was or not.
Q. Had his wallet been taken from him, do
you remember?
A. I don't recall.
Continued . . .
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Continued . . .
Q. Is it safe to say that the money that
was found in his pocket had been taken from
him by Officer Payne, correct?
A. I'm pretty sure it was, yes.
MR. FEINMEL: No further questions.
REDIRECT EXAMINATION
BY MR. DINKIN [Commonwealth's attorney]:
Q. Do you recall how much money that was?
Did you see it beforehand?
A. Not beforehand, it was after the arrest
that I saw how much it was.
Q. How much was it?
A. One hundred and ninety-six dollars.
MR. FEINMEL: That's all I have, Judge.
THE COURT: Did Mr. Hughes ever show any
reluctance about your search?
OFFICER ROGERS: No, sir. I checked his
pockets in the building and, then, when it
came time to search his underwear, I said,
"Well, do [you] have the drugs in your
underwear," and he said, "No." I said,
"Well, you don't mind if I check?" He said,
"No." I checked, and I didn't find any in
the front of his underwear so I said, "Well,
if it's not in the front of your underwear
then, it's got to be behind you." I said,
"You don't mind going ahead and bending over
then, right?" He went ahead and bent over.
At that time, I told him to cough and it was
at the point when he coughed that I saw the
plastic bag.
THE COURT: Where was it?
Continued . . .
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bag protruding from Hughes' anus, which Rogers then removed. The
bag contained cocaine.
We find, on these facts, that Hughes voluntarily consented to
a pat-down search and to a search of his underwear to "check
further." However, we hold that Hughes did not voluntarily
consent to cough in order to allow the visual inspection of his
anus or voluntarily consent to the manual search of his anal
cavity. We also hold that Officer Rogers could not infer from
Hughes' consent to a general pat-down search or consent to search
his underwear that he also consented to cough to allow a visual
inspection or manual search of a body cavity. As we noted in
Taylor, a strip search is "peculiarly intrusive" and requires
"special justification." A body cavity search is more intrusive
than a strip search and, thus, at a minimum also requires "special
justification."
The facts show that as the search progressed from one stage
to another, Rogers did not ask Hughes to cough, but rather "told"
him to do so. In addition, Rogers did not ask Hughes to consent
to Rogers' removing the plastic bag from Hughes' anus. What began
Continued . . .
OFFICER ROGERS: It was shoved up into his
rectum, half way up into his rectum so that
when he coughed, the plastic that was out of
his rectum started to shake in the air. So
it was at that point, I had gloves on so I
pulled out the plastic bag.
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as a consensual pat-down search methodically moved to the
progressively more intrusive strip search, by asking the suspect
to bend over in order to visually inspect his anus, then telling
him to cough, then physically removing the plastic bag from the
anal cavity without any communication. Even were we to construe
Rogers' statements, "Well, if it's not in the front of your
underwear then, it's got to be behind you. You don't mind going
ahead and bending over then, right?" as a request for a visual
body cavity search and Hughes bending over as consent, after
Hughes bent over, Rogers no longer sought Hughes' consent for the
continued search. Rogers told Hughes to cough in order to be able
to view farther into the anal cavity. Without a request for
Hughes to consent, we are not able to find that Hughes voluntarily
coughed and of his own free will was allowing Rogers to visually
inspect his anal cavity. Because of the highly intrusive and
personal nature of body cavity searches, if the police are relying
upon consent, it should be abundantly clear that the person agrees
to do so of his or her own free will. In the absence of an
express request by a police officer to conduct a visual or manual
body cavity search, consent to such a search will not be inferred
from a suspect's silence or apparent acquiescence to an officer's
progressively extending the scope of a consensual generalized
search. Thus, we hold that Hughes did not consent to the body
cavity search from the time he was directed to cough, and he did
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not consent to the removal of the plastic bag from his anal
cavity.
The Commonwealth next contends that based on the
informant's tip, the officers had probable cause to arrest
Hughes, and based on the circumstances, had the right to search
him, including a body cavity search, incident to the arrest.
Assuming for purposes of this opinion that when the officers
conducted the body cavity search they had probable cause to
arrest Hughes based on the informant's tip and the discovery of
the money, we hold that the Commonwealth failed to satisfy the
additional requirements necessary to conduct a warrantless body
cavity search. We have stated that "a warrantless search
involving a bodily intrusion, even though conducted incident to
a lawful arrest, violates the Fourth Amendment unless (1) the
police have a clear indication that evidence is located within a
suspect's body and (2) the police face exigent circumstances."
Commonwealth v. Gilmore, 27 Va. App. 320, 330, 498 S.E.2d 464, 469
(1998) (citations omitted).
Here, as we have noted, the evidence gave the officers no
"clear indication" that drugs were located in Hughes' anal cavity.
Probable cause to believe a suspect possesses drugs, which
justifies a search of an individual, does not justify a strip or
body cavity search unless the evidence or circumstances
specifically provides the officers with a "clear indication" that
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the contraband is concealed in a body cavity. See Moss, 30 Va.
App. at 225, 516 S.E.2d at 249; see also Schmerber v. California,
384 U.S. 757, 769-70 (1966) (noting that intrusive, warrantless
searches may not be conducted on the "mere chance that desired
evidence might be obtained"). Here, the officers were relying
exclusively on the informant's tip that drugs would be found in
Hughes' "underwear area." The officers, upon finding money in
Hughes' left pocket, assumed drugs would be found in Hughes'
undergarments. But no facts existed that would justify their
conclusion that Hughes was hiding drugs in his anal cavity. Thus,
no evidence provided the officers with a "clear indication" that
Hughes might have the contraband in his anus. Accordingly, we do
not decide whether exigent circumstances existed.
In summary, we find that the body cavity search of Hughes
violated the Fourth Amendment and that the trial court erred in
refusing to suppress the evidence obtained from the search.
Without the evidence acquired during the illegal search, no
evidence exists to support the conviction; accordingly, we
dismiss the indictment. See Barrett v. Commonwealth, 250 Va.
243, 248, 462 S.E.2d 109, 112 (1995).
Reversed and dismissed.
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