McCloud v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia

DESHAWN EUGENE McCLOUD
OPINION BY
v. Record No. 1368-00-1 JUDGE ROBERT P. FRANK
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge

Brett D. Lucas (Gabriel & Associates, P.C.,
on briefs), for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Deshawn Eugene McCloud (appellant) was convicted in a bench

trial of possession of cocaine with the intent to distribute, in

violation of Code § 18.2-248. On appeal, he contends the trial

court erred in denying his motion to suppress evidence obtained

during a "strip search" of his person, in violation of his

statutory and Fourth Amendment rights. Finding no error, we

affirm the conviction.

I. BACKGROUND

On October 5, 1999, Norfolk Police Officers Christopher

Hatman and T.L. Sterling were on duty in an unmarked police car

in the area of Virginia Beach Boulevard and Ballentine Boulevard

in Norfolk. At approximately 6:15 a.m., the officers were
traveling on Virginia Beach Boulevard near its intersection with

Ballentine Boulevard. The officers testified appellant ran a

red light when turning right onto Virginia Beach Boulevard from

Ballentine Boulevard. When appellant made the right turn, he

pulled out in front of the police car, which was driven by

Hatman. Appellant also was exceeding the speed limit by ten

miles per hour.

The police officers followed appellant's vehicle and ran a

license plate check. The check revealed that the vehicle was

stolen. The officers were in an unmarked police car that did

not have emergency lights, so they followed appellant's vehicle

and directed marked police units to assist. Before the marked

units arrived, appellant turned down a side street, parked and

exited his vehicle. The officers exited their vehicle and

approached appellant. After identifying themselves, the

officers arrested appellant for possessing a stolen vehicle. 1

After arresting appellant, Officer Hatman began to search

appellant's person pursuant to the arrest. During the initial

pat-down, he heard "crinkling material" in the area of

appellant's "crotch." The officer testified that from his past

experience, he knew it was common for those carrying illegal

1
Once appellant was transported to the police station, the
officers learned that the owner of the vehicle had reported the
vehicle as stolen, "but [was] now saying he loaned it to the guy
for a quantity of crack cocaine." No warrant was issued against
appellant for possession of stolen property.

- 2 -
substances to keep contraband in their groin area or buttocks.

Once the officer heard the "plastic rustling," he "pulled

[appellant's] belt line back and observed the plastic baggies in

the groin area." Hatman reached in "two inches" and pulled the

plastic bag out of the front of appellant's underwear. Although

the officer pulled back appellant's underwear in the front, he

did not see appellant's genitals.

Hatman continued his search of appellant's person. In

appellant's jacket pocket, he found a small plastic bag that

contained "assorted [narcotics] packaging material," consistent

with the packaging material used to package the cocaine

retrieved from appellant's underwear. Hatman also found $140 in

U.S. currency in appellant's wallet. The officers testified

that no one was in the area at the time of the search of

appellant's person. "[A]fter everything was over," a woman came

outside and told the officers that she knew appellant.

Appellant disagreed with the officers' version of the

search. He testified the police spread his body across the car

with his chest on the hood and his legs apart. He maintained

that his pants were hanging down to his mid-thigh. He also

stated that Hatman pulled his "boxers" away from his body and

looked inside his underwear using a flashlight. Appellant

testified that Hatman "started feeling underneath [his]

genitals," "felt something in [his] buttocks," and then pulled

the plastic bag out of his buttocks. According to appellant,

- 3 -
during the search, people were present on the street and the

"bottom part" of his body was naked. Appellant stated that his

pubic hair was showing and his boxers were barely covering his

"private area."

At the suppression hearing, appellant argued that the

search was a warrantless "strip search," which violated Code

§ 19.2-59.1 and the Fourth Amendment. The trial court, in

denying the motion to suppress, stated:

The Court will first say that it seems
to me perfectly clear that the stop and
arrest were perfectly appropriate. The
officers had information that they validated
the dispatcher of the stolen vehicle and
certainly gave them the probable cause to
make the arrest and so the Court finds that
the arrest was appropriate based on the
information that was available to the
officers and certainly had the right to do
that. And having made the arrest, certainly
had the right to, for their own safety and
within reasonable grounds for contraband,
pat down the defendant in the way they did
and to conduct reasonable search of the
defendant.
In this case, the Court finds there was
no invasion of any bodily cavities in any
way. The Court finds that this was not a
strip search. The baggies' packaging was
discovered on pat down and the Court accepts
the testimony that the defendant's pants
were pulled back in the front, that the
officer only had to reach in a short
distance, two inches, I think was the
testimony, to get the top of the baggies and
get that out.
The Court finds from the evidence that
the search itself given the valid and proper
arrest was appropriate, and did not result
in any –- result in any depravation of any
constitutional rights, statutory rights of
the defendant and, therefore, would overrule

- 4 -
 the motion to suppress both as to arrest and
as to the search that was conducted.

II. ANALYSIS

On appeal from a trial court's denial
of a motion to suppress, we must review the
evidence in the light most favorable to the
Commonwealth, granting to the Commonwealth
all reasonable inferences fairly deducible
from it. Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
The findings of the trial court will not be
disturbed unless plainly wrong or without
evidence to support them. See Mier v.
Commonwealth, 12 Va. App. 827, 828, 407
S.E.2d 342, 343 (1991). When reviewing the
trial court's denial of a defendant's motion
to suppress evidence, "[t]he burden is upon
[the defendant] to show that th[e] ruling,
when the evidence is considered most
favorably to the Commonwealth, constituted
reversible error." McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261
(1997) (en banc) (quotation marks and
citations omitted).

Debroux v. Commonwealth, 32 Va. App. 364, 370-71, 528 S.E.2d

151, 154, aff'd, 34 Va. App. 72, 537 S.E.2d 630 (2000) (en

banc).

"[W]e 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, 198, 487 S.E.2d 259, 261 (1997)
(en banc) (citing Ornelas v. United States,
517 U.S. 690, 699, 116 S. Ct. 1657, 1659,
134 L.Ed.2d 911 (1996)). However, we review
de novo the trial court's application of
defined legal standards such as probable
cause and reasonable suspicion to the
particular facts of the case. See Shears v.
Commonwealth, 23 Va. App. 394, 398, 477

- 5 -
 S.E.2d 309, 311 (1996); see also Ornelas,
517 U.S. at 699, 116 S. Ct. at 1659.

Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359

(1999).

In this case, the threshold issue is whether the police

conducted a "strip search." Appellant contends the search

violated Code § 19.2-59.1. We disagree. By its own terms, Code

§ 19.2-59.1 does not apply to felony offenses. 2 Appellant was

arrested for possession of a stolen vehicle, a felony under

Virginia law.

2
Section 19.2-59.1(A) states:

No person in custodial arrest for a
traffic infraction, Class 3 or Class 4
misdemeanor, or a violation of a city,
county, or town ordinance, which is
punishable by no more than thirty days in
jail shall be strip searched unless there is
reasonable cause to believe on the part of a
law-enforcement officer authorizing the
search that the individual is concealing a
weapon. All strip searches conducted under
this section shall be performed by persons
of the same sex as the person arrested and
on premises where the search cannot be
observed by persons not physically
conducting the search.

In Taylor v. Commonwealth, 28 Va. App. 638, 641, 502 S.E.2d
661, 663 (1998), we held, "[T]he fact that a search violates a
legislative mandate without violating the Constitution does not
provide for the exclusion of such evidence." Therefore, even if
we found that the officers violated Code § 19.2-59.1, the proper
analysis is whether appellant's Fourth Amendment rights were
violated.

- 6 -
 Appellant relies on the definition of "strip search"

contained in Code § 19.2-59.1(F) 3 to conclude that the police

conducted a "strip search" of him. However, the definition

applies only "[f]or purposes of this section." Therefore, it is

clear from the plain language of the statute that the

legislature did not intend to have the definition apply outside

of the scope of Code § 19.2-59.1. Further, we conclude that the

definition of "strip search" contained in Code § 19.2-59.1 is

much more expansive than the traditional definition of such a

search because the statute is restricted to non-jailable

offenses and offenses punishable by no more than thirty days in

jail. We have found no cases, nor has appellant cited any, that

include "arranging" of the suspect's clothing in a definition of

"strip search."

In Hughes v. Commonwealth, 31 Va. App. 447, 524 S.E.2d 155

(2000) (en banc), we said:

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

3
Section 19.2-59.1(F) states:

For purposes of this section, "strip
search" shall mean having an arrested person
remove or arrange some or all of his
clothing so as to permit a visual inspection
of the genitals, buttocks, anus, female
breasts, or undergarments of such person.

- 7 -
 search extends to a visual inspection of the
anal and genital areas." Commonwealth v.
Thomas, 429 Mass. 403, 708 N.E.2d 669, 672
n.4 (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).

Id. at 455, 524 S.E.2d at 159.

Hughes was forced to disrobe and the police inspected his

underwear. We characterized that activity as a "strip search."

In Moss v. Commonwealth, 30 Va. App. 219, 516 S.E.2d 246

(1999), we reversed the trial court's denial of Moss's motion to

suppress, finding that the officers' discovery of crack cocaine

in Moss' buttocks constituted a "strip search."

In Taylor v. Commonwealth, 28 Va. App. 638, 507 S.E.2d 661

(1998), we reversed the trial court's denial of Taylor's motion

to suppress, finding Taylor was subjected to an illegal "strip

search" when officers forced him to remove his clothing,

including his underwear, item by item.

In Commonwealth v. Gilmore, 27 Va. App. 320, 498 S.E.2d 464

(1998), Gilmore was forced to remove all her clothing in

preparation for a "strip search." The police then conducted a

body cavity search. In finding Gilmore's Fourth Amendment

rights were violated, we concluded that "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." Id.

at 328, 498 S.E.2d at 468.

- 8 -
 Further, in a review of a number of federal appellate

decisions, we found no cases that characterize a strip search as

other than partial or total disrobement. See Amaechi v. West,

237 F.3d 356 (4th Cir. 2001); Swain v. Spinney, 117 F.3d 1 (1st

Cir. 1997); Justice v. City of Peachtree City, 961 F.2d 188

(11th Cir. 1992); Masters v. Crouch, 872 F.2d 1248 (6th Cir.

1989); Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986); Salinas v

Breier, 695 F.2d 1073 (7th Cir. 1982).

In this case, in accepting the Commonwealth's evidence, we

find appellant was not subjected to a strip search. Unlike in

Hughes, Moss, Taylor, and Gilmore, appellant's clothing was not

removed, and his genital area was not exposed. The officers

made no visual inspection of appellant's genitals nor did the

officers touch appellant's genitals. Therefore, we affirm the

judgment of the trial court.

Affirmed.

- 9 -
Benton, J., concurring.

"[I]n the case of a lawful custodial arrest a full search

of the person is not only an exception to the warrant

requirement of the Fourth Amendment, but is also a 'reasonable'

search under that Amendment." United States v. Robinson, 414

U.S. 218, 235 (1973). The permissible purposes for the "search

incident to a lawful arrest rests . . . on the need to disarm

the suspect in order to take him into custody . . . [and] on the

need to preserve evidence on his person for later use at trial."

Id. at 234. Nevertheless, the Fourth Amendment requires that we

"accept as axiomatic the principle that people harbor a

reasonable expectation of privacy in their 'private parts.'"

Justice v. City of Peachtree City, 961 F.2d 188, 191 (11th Cir.

1992). See also Schmerber v. California, 384 U.S. 757, 767

(1966) (holding that "[t]he overriding function of the Fourth

Amendment is to protect personal privacy and dignity against

unwarranted intrusion by the State").

For purposes of deciding this case, I assume the Code

§ 19.2-59.1(F) definition of "strip search" applies. As the

United States Court of Appeals for the Fourth Circuit has

recognized, "Virginia's definition of strip search . . . is

similar to that of most states." Amaechi v. West, 237 F.3d 356,

365 (4th Cir. 2001) (footnote omitted). Although federal law

determines what constitutes a strip search for Fourth Amendment

purposes, "because states define strip search in a uniform

- 10 -
fashion, . . . state law [is] persuasive on our interpretation

of what constitutes a strip search." Id. at 365 n.15 (citations

omitted). The tenor of Code § 19.2-59.1 "is in accordance with

federal law governing limitations on the manner and scope of

strip searches"; thus, it provides a basis to determine whether

a "search . . . was reasonable or fell within a questionable

area of law." Id. at 365 (footnote omitted). The statute's

proviso, "[f]or purposes of this section," does not alter the

meaning of the term "strip search" for federal constitutional

purposes.

In addition, I believe that Hughes v. Commonwealth, 31 Va.

App. 447, 455, 524 S.E.2d 155, 159 (2000), does not provide a

viable alternative definition of "strip search"; it seeks only

to define that term by implication. The decision in Hughes

concerned whether a defendant had consented to a search and did

not have as its principal issue the definition of "strip

search." We merely stated that the term "generally refers" to a

given set of circumstances. Id. at 455, 524 S.E.2d at 159. For

these reasons, I would apply the statutory definition in this

case and hold that the search of McCloud did not constitute a

"strip search."

Resolving the discrepancy between the officer's testimony

and McCloud's testimony, the trial judge found that "the

baggies' packaging was discovered on pat down . . .[,] that

[McCloud's] pants were pulled back in the front, [and] that the

- 11 -
officer only had to reach in a short distance, two inches . . .

to get the top of the baggies and get that out." We are bound

by the trial judge's resolution of the conflicting testimony.

Watkins v. Commonwealth, 229 Va. 469, 477, 331 S.E.2d 422, 429

(1985). Thus, the issue we must decide is whether the officer

conducted a strip search when he reached between McCloud's skin

and his underwear to retrieve the package of cocaine.

The officer testified that he did not disturb McCloud's

clothing to make a "visual inspection of [McCloud's] genitals

. . . or undergarments." He pulled McCloud's pants and

undergarment away from McCloud's skin to permit the seizure of

the bag that was concealed two inches from the top of those

garments. He did not see McCloud's private parts and did not

seek to inspect them. He merely moved McCloud's clothing a few

inches to permit a sufficient space to retrieve the bag. In

making this minimal intrusion, the officer did not expose

McCloud's body or underwear in any manner that violated his

personal privacy. I would hold, therefore, that this was a

reasonable search incident to the arrest.

For these reasons, I concur in the judgment affirming the

conviction.

- 12 -