Hughes v. Commonwealth

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In an unpublished opinion, a divided panel of this Court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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