Commonwealth v. Gilmore

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Cole
Argued by teleconference

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 2700-97-2 JUDGE LARRY G. ELDER
MAY 6, 1998
DENISE PATRICE GILMORE

FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on
briefs), for appellant.

Tonja M. Roberts for appellee.

The Commonwealth appeals a pretrial order granting the

motion of Denise Patrice Gilmore (defendant) to suppress evidence

obtained during a search incident to her arrest. The

Commonwealth contends the trial court erred when it concluded

that the warrantless search of defendant's vaginal cavity was

unreasonable under the Fourth Amendment. For the reasons that

follow, we affirm the order suppressing the evidence.

I.

FACTS

On August 1, 1996, Investigators Richard Pulliam and Howard

Powell of the Halifax County Sheriff's Office were working with

Christopher New, an undercover informant, to arrange controlled

buys of crack cocaine from suspected dealers. Sometime prior to

4:00 p.m., New contacted William Pleasants, who agreed to sell

crack cocaine to New at New's home. Prior to Pleasants' arrival,
Investigator Pulliam searched New and gave him four hundred

dollars in cash. The investigator had previously recorded the

serial numbers of the cash.

A short while later, Pleasants drove his automobile into

New's driveway, and New exited his house to meet him.

Investigator Powell observed New approach the driver-side of the

vehicle, return to the corner of the house, and again approach

the driver-side of the vehicle. After New left the driver-side

of the vehicle a second time, Pleasants backed his vehicle out of

New's driveway and drove away.
New re-entered the house and gave Investigator Pulliam 1.405

grams of crack cocaine. Investigators Pulliam and Powell then

left the house and pursued Pleasants' automobile with the "blue

lights" of their vehicle flashing. As the investigators neared

Pleasants' automobile, it accelerated and continued onto portions

of several roads. As Pleasants traveled over a bridge and

beneath an underpass, the investigators "saw a brown object come

out of the passenger-side window" of Pleasants' automobile.

Later, Pleasants turned into a parking lot at a restaurant and

stopped his vehicle.

The investigators pulled in next to Pleasants' vehicle and

approached on foot. They saw Pleasants in the driver-seat and

defendant in the passenger-seat. The investigators immediately

started searching for the cash they had given to New to purchase

cocaine from Pleasants. The investigators searched the interior

2
of the vehicle, Pleasants' person, and eventually had Pleasants'

vehicle "taken . . . apart." A team from the sheriff's office,

assisted by a dog, searched the area where the investigators had

seen the brown object jettisoned from Pleasants' automobile. No

object was found. Although the investigators found a small

quantity of marijuana in the ashtray of Pleasants' vehicle, none

of their searches produced the missing four hundred dollars.

Investigator Pulliam contacted Deputy Jackie Shields and

asked her to proceed to the scene of the stop. When Deputy

Shields arrived, Investigator Pulliam informed her in detail

about the unsuccessful efforts to locate the missing money and

asked her to search defendant. After some discussion about

searching defendant in the restaurant, Deputy Shields transported

defendant to the sheriff's department to conduct the search. She

took defendant to an "interrogation room" and told her to remove

all of her clothing in preparation for a "strip search." After a

search of defendant's discarded clothing and hair failed to

reveal any money, Deputy Shields asked defendant if she had the

money "on her body." Defendant, who at this point was naked,

told the deputy that she "didn't have anything." Deputy Shields

replied that she was "going to have to be sure."
Defendant then informed Deputy Shields that she was

currently menstruating and asked to go to the bathroom "to remove

her . . . personal protection." Deputy Shields refused

defendant's request, and defendant "squatted down" in front of

3
Deputy Shields and "proceeded to remove her tampon." Deputy

Shields then told defendant to "squat again" and cough three

times. While defendant was squatting, Deputy Shields attempted

to visually examine the exterior of defendant's vagina. She then

told defendant to stand up against the wall. After putting a

glove on her hand, Deputy Shields "stuck her hand inside"

defendant's vagina and "removed the money from out of there."

Deputy Shields testified that she was not a

"medically-trained person." She was alone with defendant during

the entirety of the search. No search warrant was obtained prior

to the search of defendant's vaginal cavity.
The serial numbers on the money retrieved from defendant's

vagina matched the numbers on the money the investigators had

given to New to purchase crack cocaine from Pleasants. A short

while later, defendant waived her Miranda rights and made an

incriminating statement to Investigator Pulliam.

A grand jury indicted defendant for distributing cocaine in

violation of Code § 18.2-248 and possessing marijuana in

violation of Code § 18.2-250.1. Prior to trial, defendant moved

to suppress the money obtained during the search of her vaginal

cavity and her subsequent statement to Investigator Pulliam on

the ground that this evidence was obtained in violation of the

Fourth Amendment. Following a hearing, the trial court granted

defendant's motion to suppress the money and her statement.

The trial court noted that defendant "ha[d] not raised any

4
question about the validity of the arrest or . . . being held in

the custody of the sheriff's office." It stated that "the

question . . . is whether or not this was a reasonable search

incident to an arrest." The trial court then concluded that

Deputy Shields' search of "[d]efendant's body cavity" was "an

unreasonable search and seizure in violation of the Fourth and

Fourteenth Amendments." It also concluded that to conduct a

search of defendant's body cavity "without medically-trained

personnel present" was constitutionally "unreasonable."
II.

WARRANTLESS SEARCH OF DEFENDANT'S VAGINAL CAVITY

The Commonwealth contends the trial court erred when it

concluded that the search of defendant's vaginal cavity was

unreasonable under the Fourth Amendment. The Commonwealth argues

that the search of defendant's vaginal cavity was within the

scope of Deputy Shields' authority to search defendant incident

to her arrest and that the officers involved had reason to

believe that the missing four hundred dollars was in defendant's

vagina. In the alternative, the Commonwealth argues that the

search of defendant's vaginal cavity was lawful under the Fourth

Amendment because the officers involved had a clear indication

that the cash would be found there and they were faced with

exigent circumstances. 1 We disagree.
1
The Commonwealth also argues that the trial court
erroneously granted defendant's motion to suppress on the ground
that the search of her vagina violated Code § 19.2-59.1(C). The
relevant portion of Code § 19.2-59.1(C) states that, when a

5
 A.

This case raises the issue whether the scope of a police

officer's authority under the Fourth Amendment to conduct a

"full" warrantless search of an arrestee's person incident to a

lawful arrest includes the authority to search the arrestee's

body cavities. We hold that it does not.

The Fourth Amendment states that "[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated

. . . ." U.S. Const. amend. IV (emphasis added). Subject to a

few specifically established exceptions, "searches conducted

outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment."
Katz v. United States, 389 U.S. 347, 357 (1967) (citations

omitted). One of the established exceptions to the Fourth

Amendment's warrant requirement is for a "search incident to a

lawful arrest." United States v. Robinson, 414 U.S. 218, 224,

226 (1973) (also holding that searches incident to arrest "meet
suspect is subject to custodial arrest, "a search of any body
cavity, other than the mouth, shall be conducted either by or
under the supervision of medically trained personnel." The
Commonwealth argues that the trial court erred because the
suppression of evidence is not available as a remedy when
evidence is obtained in violation of this statute.
However, both the trial court's order and ruling from the
bench indicate that its decision to grant defendant's motion to
suppress was based solely on constitutional grounds. Because the
trial court did not base its decision on statutory grounds, we
need not address the Commonwealth's argument that suppression is
not an available remedy when evidence is obtained in violation of
Code § 19.2-59.1(C).

6
the Fourth Amendment's requirement of reasonableness"); see also

Chimel v. California, 395 U.S. 752, 762-63 (1969).

When delineating the permissible scope of a warrantless

search incident to arrest, the United States Supreme Court has

stated that a lawful arrest of a suspect authorizes the police to

conduct "a full search of the [arrestee's] person." Robinson,

414 U.S. at 235. In addition, the police may search the area

within the arrestee's immediate control, see Chimel, 359 U.S. at

763, and seize his or her personal effects that are evidence of

the crime. See United States v. Edwards, 415 U.S. 800, 804-05

(1974). 2 Furthermore, a police officer's decision to conduct a

search incident to arrest is largely free from both prior or

subsequent judicial scrutiny. The Supreme Court stated in

Robinson:
A police officer's determination as to how
and where to search the person of a suspect
whom he has arrested is necessarily a quick
ad hoc judgment which the Fourth Amendment
does not require to be broken down in each
instance into an analysis of each step in the
search. The authority to search the person
incident to a lawful custodial arrest, while
based upon the need to disarm and to discover
evidence, does not depend on what a court may
later decide was the probability in a
particular arrest situation that weapons or
2
See also Illinois v. Lafayette, 462 U.S. 640, 648 (1983)
(holding that the police may search any container or article in
an arrestee's possession "as part of the routine procedure
incident to incarcerating an arrested person"); New York v.
Belton, 453 U.S. 454, 460 (1981) (holding that, following the
lawful search of an occupant of an automobile, the police may
conduct a contemporaneous search of the automobile's passenger
compartment and the contents of any containers found in the
passenger compartment).

7
 evidence would in fact be found upon the
person of the suspect.

Robinson, 414 U.S. at 235.

However, the authority of the police under the Fourth

Amendment to conduct a "full search" of an arrestee's person

without a warrant is only skin deep. The Supreme Court has

stated that the scope of warrantless searches incident to arrest

is not free from all constitutional restraint. See Edwards, 415

U.S. at 808 n.9. It has also 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

of evidence under the suspect's direct control -- "have little

applicability with respect to searches involving intrusions

beyond the body's surface." Schmerber v. California, 384 U.S.

757, 769 (1966).
The interests in human dignity and privacy
which the Fourth Amendment protects forbid
any such intrusions on the mere chance that
desired evidence might be obtained. In the
absence of a clear indication that in fact
such evidence will be found, these
fundamental human interests require law
officers to suffer the risk that such
evidence may disappear unless there is an
immediate search.

Id. at 769-70. A search of a body cavity is considered an

"intrusion" into the body under Schmerber that falls outside the

permissible scope of a search incident to arrest. 3
3
See United States v. Oyekan, 786 F.2d 832, 839 n.13 (8th
Cir. 1986) (stating that "a body cavity search must be conducted
consistently with the Schmerber factors"); Giles v. Ackerman, 746
F.2d 614, 616 (9th Cir. 1984) (stating that Schmerber "implies

8
 The warrant requirement re-enters the picture when the

police seek to search for evidence inside a suspect's body

incident to arrest. "[T]he police must obtain a warrant when

they intend to seize an object outside the scope of a valid

search incident to arrest . . . ." Coolidge v. New Hampshire,

403 U.S. 443, 484 (1971).
Search warrants are ordinarily required for
searches of dwellings, and absent an
emergency, no less could be required where
intrusions into the human body are concerned.
The requirement that a warrant be obtained
is a requirement that inferences to support
the search "be drawn by a neutral and
detached magistrate instead of being judged
by the officer engaged in the often
competitive enterprise of ferreting out
crime." The importance of informed, detached
and deliberate determinations of the issue
whether or not to invade another's body in
search of evidence of guilt is indisputable
and great.

that intrusions into the arrestee's body, including body cavity
searches . . . are not authorized by arrest alone"); see also
Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (stating that
"Robinson did not hold that all possible searches of an
arrestee's body are automatically permissible as a search
incident to arrest"); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446
(9th Cir. 1991) (stating that "Robinson simply did not authorize"
arresting officers to conduct a strip and visual body cavity
search); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271
(7th Cir. 1983) (stating that "the Robinson court simply did not
contemplate the significantly greater intrusions that occur[]" in
a visual search of an arrestee's anal and vaginal cavities).
Several state courts have similarly concluded that the broad
authority of the police to search an arrestee's person incident
to arrest is limited by the principles applicable to bodily
intrusions set forth in Schmerber. See State v. Clark, 654 P.2d
355, 361-62 (Haw. 1982); State v. Fontenot, 383 So.2d 365, 367
(La. 1980); cf. State v. Milligan, 748 P.2d 130, 135 (Or. 1988);
People v. Williams, 510 N.E.2d 445, 447 (Ill. App. Ct. 1987);
State v. Baker, 502 A.2d 489, 492 (Me. 1985).

9
Schmerber, 384 U.S. at 770 (citations omitted).

Based on these principles, we hold 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. 4

See id. at 770-71; accord Archer v. Commonwealth, 20 Va. App.

87, 91, 455 S.E.2d 280, 282 (1995) (citing Schmerber, 384 U.S. at

770). 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."
Schmerber, 384 U.S. at 768; see also Winston v. Lee, 470 U.S.

753, 759-61 (1985); Edwards, 415 U.S. at 808 n.9; Archer, 20 Va.

App. at 91, 455 S.E.2d at 282. 5
4
"Exigent circumstances" in these situations include an
officer's reasonable belief under the circumstances presented
that the delay necessary to obtain a warrant will result in the
destruction of evidence. Schmerber, 384 U.S. at 770.
5
We disagree with the Commonwealth that this case should be
analyzed according to the framework applied by the Supreme Court
in Bell v. Wolfish, 441 U.S. 520, 558-60 (1979). In Wolfish, the
Supreme Court held that the Fourth Amendment was not violated by
the policy of a correctional facility requiring visual body
cavity searches of pretrial detainees following every contact
visit with a person from outside the institution. See id. at
558. The Supreme Court concluded that the visual cavity searches
after contact visits met the "test of reasonableness" under the
Fourth Amendment after balancing "the significant and legitimate
security interests of the [correctional facility] against the
privacy interests of the inmates." Id. at 599-60.
The analytical framework set forth in Wolfish is

10
 B.

At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the

evidence in the light most favorable to the prevailing party,

granting to it all reasonable inferences fairly deducible

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991). We review the trial court's

findings of historical fact only for "clear error," but we review

de novo the trial court's application of defined legal standards

to the particular facts of a case. See Shears v. Commonwealth,

23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also

Ornelas v. United States, 517 U.S. 690, 699 (1996).

inapplicable to this case because the searches in Wolfish were
initiated under markedly different circumstances. Wolfish
addressed the Fourth Amendment rights of pretrial detainees,
"persons who have been charged with a crime but who have not yet
been tried on the charge." Id. at 523. The Supreme Court's
analysis in Wolfish was based in part on the premise that "[a]
detainee simply does not possess the full range of
[constitutional] freedom of an unincarcerated individual." Id.
at 546. Because a person who is searched incident to arrest is
not yet incarcerated, he or she has greater constitutional
protection than a pretrial detainee. As such, this case is
controlled by the principles set forth in Schmerber rather than
Wolfish: in order to conduct a lawful body cavity search of an
arrestee, the police must (1) have a "clear indication" that
evidence will be found and (2) either obtain a search warrant or
face exigent circumstances.

11
 Turning to the facts of this case, we hold that the

warrantless search of defendant's vaginal cavity violated the

Fourth Amendment. The circumstances apparent to the officers at

the time of the search did not "clearly indicate" that the

missing cash would be found inside defendant's vagina. Moreover,

even assuming the existence of a clear indication, the officers

involved were not faced with exigent circumstances that justified

their decision to proceed with the search in the absence of a

warrant.
At the hearing on her motion to dismiss, the evidence viewed

in the light most favorable to defendant indicated that Deputy

Shields "stuck her hand inside" of defendant's vagina causing

defendant to experience discomfort. The deputy felt and removed

the cash. Because the deputy's search for the missing money

involved an intrusion into defendant's vaginal cavity, it

exceeded the scope of the deputy's authority to search

defendant's person incident to arrest. Furthermore, the record

indicates that the officers involved did not obtain a warrant

prior to the search in accordance with Schmerber. Thus, at the

hearing on defendant's motion, the Commonwealth had the burden of

proving that the decision to subject defendant to a vaginal

cavity search was justified by a "clear indication" and exigent

circumstances. See Schmerber, 384 U.S. at 770; Archer, 20 Va.

App. at 91, 455 S.E.2d at 282.

The record in this case does not establish that the officers

12
had a "clear indication" the cash they had given to New to

purchase cocaine from Pleasants would be found inside defendant's

vagina. The officers testified that, while they were pursuing

the vehicle driven by Pleasants, they saw "a brown object come

out of the passenger-side window." A dog-assisted search of the

area failed to locate the object, and the investigators could not

confirm that the "brown object" did not contain the missing

money. In addition, the investigators had little information

suggesting that defendant participated in the transaction between

New and Pleasants. 6 Obviously, Pleasants could have discarded

the "brown object" by throwing it through the passenger-side

window to the side of the roadway. The officers were not aware

that defendant was in the vehicle with Pleasants during the

transaction at New's residence, and they did not learn of her

presence in Pleasants' vehicle until after it was stopped. Based

upon the circumstances apparent to the investigators in this

case, we cannot say they had a "clear indication" that the

missing money would be found in defendant's vaginal cavity.

Although the facts known to the investigators may have supported

a hunch that defendant was concealing the missing cash inside her

vagina, the Fourth Amendment requires the police to have a more

apparent basis before subjecting an arrestee to the degrading and

humiliating experience of a body cavity search. Cf. Schmerber,
6
In her motion to suppress, defendant did not challenge the
legality of her arrest. As such, we do not address this issue on
appeal.

13
384 U.S. at 769-70 (stating that the Fourth Amendment forbids

intrusions into the body "on the mere chance that desired

evidence might be obtained").

We also conclude that the failure of the investigators to

obtain a search warrant prior to the search of defendant's

vaginal cavity was not justified by exigent circumstances. The

evidence sought by the officers was four hundred dollars in

United States currency. No evidence in the record indicates that

the evidentiary quality of the cash, such as the legibility of

the serial numbers printed on the bills, was likely to be

impaired by prolonged exposure to the environment of defendant's

vaginal cavity. See State v. Clark, 654 P.2d 355, 360 (Haw.

1982) (stating that there was no risk that currency would

dissipate by "absorption or dissolution" while located inside

arrestee's vagina); cf. State v. Fontenot, 383 So.2d 365, 367

(La. 1980) (stating that there was no danger that capsules

enclosed in a pill bottle would be "absorbed or destroyed" while

located inside arrestee's vagina). Moreover, during the delay

necessary to obtain a search warrant, defendant could have been

observed and prevented from destroying the cash. See Clark, 654

P.2d at 360; Fontenot, 383 So.2d at 367. As such, we cannot say

that the officers involved had a reasonable belief that the delay

necessary to obtain a search warrant would have resulted in the

destruction of the evidence sought.

Because we conclude that the police violated the Fourth

14
Amendment when they subjected defendant to a warrantless search

of her vaginal cavity, we need not address whether the manner in

which this search was performed -- by a non-medically-trained

person in an interrogation room -- was unreasonable under the

Fourth Amendment. See Schmerber, 384 U.S. at 771-72. Although

the trial court found the search unreasonable because it was

conducted outside the presence of a medically-trained person, in

light of our analysis of this case, "the right result reached by

the trial court . . . will nevertheless be approved." Thims v.

Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 447 (1977). 7

For the foregoing reasons, we affirm the trial court's order

granting defendant's motion to suppress.

Affirmed.

7
Authorities who conduct body cavity searches are required to
comply with procedures established by the General Assembly in
Code § 19.2-59.1(C). Code § 19.2-59.1(C) states in full:

A search of any body cavity must be performed
under sanitary conditions and a search of any
body cavity, other than the mouth, shall be
conducted either by or under the supervision
of medically trained personnel.

15
Cole, J., concurring.

I concur in the majority's decision to affirm the trial

court's ruling to suppress the evidence. However, I disagree

with the majority's conclusion that the deputy sheriff did not

have a "clear indication" that the evidence was located within

Gilmore's body cavity.

The Supreme Court has consistently held that searches are to

be judged on a case-by-case basis and that all searches must be

conducted in a reasonable manner. Here, the facts proved that a

drug transaction occurred and that marked money had been given to

the driver of the car in which the appellee, Gilmore, was a

passenger. The police maintained surveillance of the car until

it was stopped. A thorough search of the car failed to reveal

the money. A non-intrusive search of Gilmore and the driver also

failed to produce the money. Eliminating all reasonable

explanations as to the whereabouts of the money, the police were

faced with only one other possibility: that Gilmore had hidden

the money on her person. After the police officer first

performed a strip search, the only remaining possibility was that

the money was hidden in appellant's body cavity. Therefore,

contrary to the majority's view, I find from the evidence a

"clear indication" that Gilmore had secreted the money on her

person.
I do not believe, however, that the officers were faced with

sufficient exigent circumstances to justify their decision to

16
proceed with the internal body search in the absence of a search

warrant. A medically-trained person did not perform the search.

The evidence does not disclose that the procedure was performed

in a manner reasonably ensuring the safety and health of the

suspect. For this reason, I concur in the affirmance.

17