COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
TRACY LEWAYNE MOSS
OPINION BY
v. Record No. 1235-98-3 JUDGE DONALD W. LEMONS
JULY 6, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Amanda E. Shaw, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Tracy Lewayne Moss appeals from his convictions for
possession of cocaine and escape from custody. On appeal, he
argues (1) that his motion to suppress evidence seized in a
strip search should have been granted, and (2) that because he
was not lawfully in custody he could not be guilty of escape.
We hold that his motion to suppress should have been granted but
also hold that he was in custody for purposes of his conviction
for escape. Accordingly, we affirm in part, reverse in part,
and remand.
I. BACKGROUND
On October 22, 1997, Investigators K.T. Swisher, Wayne
Duff, and Kevin D. Holyfield of the Lynchburg Police Department
stopped at a gas station on Memorial Avenue in Lynchburg. When
Swisher returned from paying for fuel, Duff informed him that a
blue sedan had pulled into the parking lot and that he thought
that Tracy Lewayne Moss was the driver.
During Moss' hearing on his motion to suppress, Swisher
testified that he walked up to Moss, identified himself, and
asked permission to search both Moss and the car for drugs.
Swisher stated that Moss "advised me he did not mind if I did
so." While Swisher was searching Moss' person, Holyfield
noticed a "brown, hand-rolled marijuana cigarette laying in the
ashtray in plain view between the driver's seat and the front
passenger seat of the vehicle." Gerard Haythe was sitting in
the passenger seat. Swisher testified that "[a]t that point Mr.
Moss and Mr. Haythe were not free to leave."
Duff also testified at the hearing on Moss' motion to
suppress, stating that he asked and received permission from
Haythe to search his person. All three investigators searched
Haythe in the bathroom of the gas station and recovered crack
cocaine from his buttocks. Swisher testified that during the
search of Haythe, Moss was walking around "back and forth in
front of the store on the sidewalk." After searching Haythe,
Swisher began to issue Moss a uniform summons for possession of
marijuana. However, Swisher realized that Moss was a juvenile
and decided not to release him on a summons. At this point,
Duff and Holyfield took Moss to the restroom and conducted a
- 2 -
strip search. Swisher stated that they strip searched Moss
because he knew from "training and experience that that's an
area the drug dealers often conceal their narcotics because they
believe the police will not search that area" and that after
finding drugs in that area on Haythe, it was "possible, if not
probable that Mr. Moss had narcotics in his buttocks area."
Duff and Holyfield found what they suspected to be crack cocaine
in Moss' buttocks.
At the hearing on Moss' motion to suppress, Moss argued
that he was not under arrest, that the officers had no probable
cause to arrest him for possession of marijuana, and that even
if they possessed probable cause, the search of his buttocks
exceeded the constitutionally permitted scope of a search
incident to arrest. The trial judge disagreed, stating, "I
don't think that consent was ever revoked . . . . But anyway
. . . I'm going to find this fact: That the police had probable
cause to arrest your client [Moss] for possession of marijuana;
and they were in the process of doing so when they decided to
strip search him."
After being arrested for possession of cocaine and
marijuana, Moss was taken to the Lynchburg Police Department.
At trial, Duff testified that Moss was in the interview room
when he asked to use the restroom. Instead of coming back into
the interview room when he was finished, Moss ran out of the
building. Moss was eventually tackled on the sidewalk outside
- 3 -
the police station. In a bench trial, Moss was convicted of
possession of cocaine and escape from custody.
II. MOTION TO SUPPRESS
On appeal, it is the defendant's burden to show "that the
denial of [the] motion to suppress constitute[d] reversible
error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437
S.E.2d 232, 233 (1993). "Ultimate questions of reasonable
suspicion and probable cause to make a warrantless search
involve questions of both law and fact and are reviewed de novo
on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (citation omitted).
It is beyond peradventure that "probable cause" is a
flexible, common sense standard dealing not with technical
analysis but rather with practical considerations in the context
of the totality of the circumstances. See Texas v. Brown, 460
U.S. 730, 742 (1983); Taylor v. Commonwealth, 222 Va. 816, 820,
284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906 (1982).
Additionally, trained and experienced police officers "may be
able to perceive and articulate meaning in given conduct which
would be wholly innocent to the untrained observer." Richards
v. Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 286, 270-71
(1989).
Moss gave Swisher permission to search his person and the
vehicle. While Swisher was engaged in a conversation with Moss,
Holyfield found what he believed to be a marijuana cigarette or
- 4 -
"Philly blunt" in the open ashtray in the dashboard between the
driver and the passenger seats. From his training and
experience, the officer stated that the packaging was consistent
with a type of hand-rolled marijuana cigarette. At that point,
the officers had probable cause to arrest Moss and Haythe for
possession of marijuana. See Powell v. Commonwealth, 27 Va.
App. 173, 177-78, 497 S.E.2d 899, 901-04 (1998); DePriest v.
Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 540, 543-44
(1987).
Upon determining that Moss was a juvenile, the officers
took him into custody pursuant to Code § 16.1-246. A lawful
custodial arrest authorizes a full search of the person. See
United States v. Robinson, 414 U.S. 218, 234-35 (1973); but see
Knowles v. Iowa, 119 S. Ct. 484 (1998). Additionally, Moss had
previously given consent to a search of his person. But his
consent to search his person and his lawful arrest would not,
without more, justify a strip search or a body cavity search.
[S]trip searches require special
justification since they are peculiarly
intrusive. . . . In each case we must
balance the need for the particular search
against the invasion of personal rights that
the search entails. Courts must consider
the scope of the particular intrusion, the
manner in which it is conducted, the
justification for initiating it, and the
place in which it is conducted.
Taylor v. Commonwealth, 28 Va. App. 638, 642, 507 S.E.2d 661,
663 (1998). Additionally, such intrusive searches without a
- 5 -
warrant may not be conducted on the "mere chance that desired
evidence might be obtained." Schmerber v. California, 284 U.S.
757, 769-70 (1966). We have previously stated:
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. In addition,
because the Fourth Amendment "constrain[s]
. . . against intrusions . . . which are
made in an improper manner," the means and
procedures employed by the authorities to
conduct a search involving an intrusion into
the body must also satisfy relevant Fourth
Amendment standards of reasonableness.
Commonwealth v. Gilmore, 27 Va. App. 320, 330-31, 498 S.E.2d
464, 469 (1998) (citations omitted).
There is no evidence that Moss' consent to a "search of his
person" extended to a strip search or a body cavity search. The
Commonwealth's reliance upon consent for this intrusion is
misplaced. Additionally, the Commonwealth does not satisfy the
additional requirements for such an intrusion without consent or
without a warrant. We do not address issues concerning the
place and manner of the search because we find that there was
not a "clear indication" that drugs were located in Moss'
buttocks, and we find no exigent circumstances justifying a
strip search or body cavity search without a warrant.
Officer Swisher testified that certain narcotics dealers
hide contraband in areas they do not believe the police will
- 6 -
search, such as the buttocks. Here, there was insufficient
evidence for a "clear indication" that drugs were located in
Moss' buttocks. His friend, Haythe, had crack cocaine in his
buttocks; however, the habits of his friend cannot be imputed to
Moss. The presence of $55 in cash, a pager, and probable cause
to arrest for simple possession of marijuana is similarly
insufficient to justify the conclusion that Moss was hiding
drugs in his buttocks. These circumstances are precisely what
the Court in Schmerber was concerned about when it stated that
intrusive searches without a warrant may not be conducted on the
"mere chance that desired evidence might be obtained."
Schmerber, 384 U.S. at 770.
Additionally, even if there had been a "clear indication"
that Moss possessed drugs within his body, the officers did not
obtain a warrant prior to searching Moss. "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, 2
(1994) (citation omitted). An "exception to the warrant
requirement exists when there are exigencies in a situation
which make such an exception imperative." Id. at 373, 444
S.E.2d at 2 (citations omitted).
In Schmerber, the Court held that the considerations that
justify the authority to search incident to a lawful arrest
- the need to disarm the suspect and to prevent the destruction
- 7 -
of evidence under the suspect's direct control - "have little
applicability with respect to searches involving intrusions
beyond the body's surface." Schmerber, 384 U.S. at 769. We do
not exclude the possibility that in a particular case the risk
of destruction of evidence, imminent medical harm to the
suspect, or secretion of a weapon may provide exigent
circumstances for a search involving intrusion beyond the body's
surface. Even if there was a "clear indication" that contraband
was located in Moss' body, there were no exigencies present in
this case justifying a warrantless search. Nothing in the
record suggests that Moss had a concealed weapon, nor was there
a risk of destruction of evidence. No medical emergency
existed. Even though it was conducted incident to a lawful
arrest, the search of Moss involved bodily intrusion requiring
additional exigencies to be justified without a warrant.
We find that the strip search of Moss was impermissible and
that the trial court erred in refusing to suppress the evidence
obtained from the search. We find it unnecessary to address
Moss' contention that the strip search violated Code
§ 19.2-59.1(A).
III. ESCAPE FROM CUSTODY
At the time Moss absconded from the police station he was
in lawful custody. Moss was under arrest for possession of
marijuana and cocaine. Because Moss was a juvenile, he was
taken into custody pursuant to Code § 16.1-248.1. The evidence
- 8 -
clearly demonstrates that Moss submitted to the authority of the
police, and the officer's accommodation of his request to use
toilet facilities does not change his status. See Cavell v.
Commonwealth, 28 Va. App. 484, 506 S.E.2d 552 (1998).
IV. CONCLUSION
For the reasons stated above, we affirm Moss' conviction
for escape and reverse his conviction for possession of cocaine
and remand for further proceedings if the Commonwealth be so
advised.
Affirmed in part,
reversed in part
and remanded.
- 9 -