COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
LYNN TAYLOR, JR.
MEMORANDUM OPINION * BY
v. Record No. 0961-00-2 JUDGE RICHARD S. BRAY
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public
Defender, for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Lynn Taylor, Jr. (defendant) was convicted in a bench trial
for possession of cocaine with intent to distribute, a violation
of Code § 18.2-248. On appeal, he complains the trial court
erroneously denied his motion to suppress evidence
unconstitutionally obtained during a warrantless body cavity
search. We agree and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In reviewing a trial court's ruling on a suppression motion,
we consider the evidence in the light most favorable to the
prevailing party below, the Commonwealth in this instance,
granting to it all reasonable inferences fairly deducible
therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991).
"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. In
performing such analysis, we are bound by
the trial court's findings of historical
fact unless "plainly wrong" or without
evidence to support them and we give due
weight to the inferences drawn from those
facts by resident judges and local law
enforcement officers.
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S.
690, 691, 699 (1996)). "On appeal, it is the defendant's burden
to show 'that the denial of [the] motion to suppress constitute[d]
reversible error.'" Moss v. Commonwealth, 30 Va. App. 219, 223,
516 S.E.2d 246, 248 (1999) (citation omitted).
Viewed accordingly, the instant record discloses that, on
January 11, 2000, Richmond Police Detective Kenneth L. Roane was
conducting an undercover operation intended "to make . . . street
level" controlled buys of cocaine. A confidential informant "was
set up with audio-video assistance," instructed to engage in
purchases of the drug and transmit a description of the seller to
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a police "technician," assigned to monitor and videotape each
transaction. In accordance with the established procedure, the
informant purchased cocaine from a drug dealer, later identified
as defendant. A description of defendant was relayed to an
"arrest team," together with information that defendant was
"dealing [cocaine] from the crotch area," "going in his pants" for
the drugs.
Instructed to "move in," Officers Bates and Naoroz
apprehended defendant within a few seconds of the alert, and Bates
"conduct[ed] a safety pat down." Finding nothing, defendant was
handcuffed and placed in the patrol car for transport to police
headquarters. En route, defendant "was moving his hands about,
sitting on his hands" and "complain[ing] about the handcuffs,"
"doing it so much" that Naoroz, "at least three times[,] . . .
instructed him to stop moving."
Upon arrival at headquarters, defendant was taken to "the
debriefing area" and interrogated by Bates, Naoroz, and Detective
Kenneth Peterson. Defendant denied possessing contraband but
continued to "squirm" in his chair. Recalling a prior arrest of
defendant for distribution of cocaine, Naoroz was aware defendant
had then secreted cocaine in his "buttocks area." Additionally,
both Naoroz and Peterson noted that illicit drugs are often
concealed in the "anal area," a practice that may endanger the
offender, although neither could cite an incident of health
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problems resulting from the anal placement of drugs, and defendant
had exhibited no difficulties.
Confronted with such circumstances and unable to locate the
drugs upon a cursory search of defendant, Bates removed
defendant's pants, "search[ed] him" and, finding nothing, "pulled
down his underwear" and visually inspected his buttocks and
crotch, again without result. Police then directed defendant to
"bend over" and "Detective Peterson . . . grabbed both of his butt
cheeks and spread it open. At that time [Bates] used [his]
flashlight and looked up and . . . finally saw . . . what [he]
believed to be crack cocaine inside the small baggies." Bates
then retrieved the offending cocaine from defendant's anus,
resulting in the instant conviction.
II.
"[A] lawful arrest of a suspect authorizes the police to
conduct 'a full search of the [arrestee's] person.'" Commonwealth
v. Gilmore, 27 Va. App. 320, 328-29, 498 S.E.2d 464, 468 (1998).
However, "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." Id. at 330, 498 S.E.2d at 469.
Thus, "[p]robable cause to believe a suspect possesses drugs,
which justifies a search of an individual, does not justify a
. . . body cavity search unless the evidence or circumstances
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specifically provides the officers with a 'clear indication' that
the contraband is concealed in a body cavity." Hughes v.
Commonwealth, 31 Va. App. 447, 460, 524 S.E.2d 155, 162 (2000) (en
banc). The requisite "clear indication" must coincide with
"additional exigencies" in justification of an "intrusion[] beyond
the body's surface." 1 Moss, 30 Va. App. at 226, 516 S.E.2d at 249
(citation omitted).
Accordingly, defendant first contends that the officers did
not have a "clear indication" he "had drugs in his anus." We
disagree. Police were aware defendant was "dealing" from the
"crotch area" of his pants and effected the arrest only moments
after the informant had purchased cocaine from him. In transit to
police headquarters, defendant was restless, "squirming around"
and "sitting on his hands," despite repeated requests to stop.
Based upon experience as police officers, Naoroz and Peterson were
aware that narcotics are often concealed in the anal cavity.
Moreover, Naoroz had discovered drugs hidden in defendant's
"buttocks area" on a prior occasion. Repeated limited searches of
defendant's person following arrest had revealed no narcotics.
Such circumstances provided a sufficiently "clear indication" that
defendant had hidden the cocaine in his buttocks or "anal area."
1
Exigencies expressly recognized in Moss include "the risk
of destruction of evidence, imminent medical harm to the
suspect, or secretion of a weapon." Moss, 30 Va. App. at 226,
516 S.E.2d at 249.
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Defendant next maintains that the instant circumstances
failed to demonstrate the exigency component indispensable to
support a warrantless body cavity search. In response, the
Commonwealth relies upon health concerns related to the absorption
of cocaine into defendant's body through the anal cavity to infuse
the requisite exigency.
Here, like Moss, the record does not reflect either a threat
to the evidence or defendant's health resulting from any delay
attendant to issuance of a search warrant. Defendant was in
custody and easily monitored, and no evidence suggests an
impediment to a proper warrant. Moreover, adoption of the
Commonwealth's argument would judicially countenance warrantless
body cavity searches upon every "clear indication" that drugs were
concealed within body cavities, a result clearly at odds with
existing precedent.
Thus, despite a clear indication that narcotics would be
found within defendant's anal cavity, the absence of attendant
exigent circumstances precluded the warrantless search.
Accordingly, the trial court erroneously denied defendant's motion
to suppress the disputed evidence, and we reverse the conviction,
remanding for further proceedings if the Commonwealth be so
advised.
Reversed and remanded.
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Lynn Taylor, Jr. v. Commonwealth of Virginia
Combined Opinion