Craddock v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia

ORILLION DENVER CRADDOCK
OPINION BY
v. Record No. 2801-01-2 JUDGE D. ARTHUR KELSEY
MAY 13, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge

Cynthia E. Payne, Assistant Public Defender,
for appellant.

Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Orillion Denver Craddock contends the trial court erred by

not suppressing evidence discovered during a strip search prior

to his pretrial incarceration. Craddock also claims the

evidence at trial does not support his convictions for

obstruction of justice and possession of cocaine with the intent

to distribute. Disagreeing with both assertions, we affirm.

I.

On appeal, we review the evidence "in the light most

favorable to the Commonwealth." Morrisette v. Commonwealth, 264

Va. 386, 389, 569 S.E.2d 47, 50 (2002). That principle requires

us to "discard the evidence of the accused in conflict with that

of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences

that may be drawn therefrom." Holsapple v. Commonwealth, 39

Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)

(citation omitted); see also Wactor v. Commonwealth, 38 Va. App.

375, 380, 564 S.E.2d 160, 162 (2002).

On April 17, 2001, Officer Robert Barlow of the Richmond

Police Department conducted a "routine patrol" through a "high

drug" area of Richmond. He observed a "group of gentlemen

standing on the corner." Barlow exited his patrol vehicle,

approached the men, and asked for identification. Once he

received each man's identification, Barlow performed a record

check on each "to see if there were any warrants on file."

Barlow learned that pending process existed charging Craddock

with "failure to appear on a felony narcotics charge."

Barlow arrested Craddock and placed him in the police

cruiser for transport to the "detention center." The detention

center served as an "annex of the jail, under the jurisdiction

of the Sheriff of the City of Richmond." The center processed

about "450 to 500 prisoners" each week and anywhere "from 130 to

500" prisoners would be in the center at any given time. The

guards at the detention center were responsible for "sending

those particular prisoners to each and every court in the city

in a timely fashion."

While en route to the detention center, Officer Barlow

received a phone call from Officer Michael Bender. Bender had

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heard Craddock's name over the radio dispatch and called Barlow

to explain that, in the recent past, Craddock had kept drugs

"hidden in his underwear" and "was known to carry drugs in his

buttock area." Bender knew this because he "was the officer who

got the search warrant for the prior drugs that had been

retrieved."

Barlow relayed this information to Deputy Sheriff Kenneth

Droddy, the assistant commander of the detention center. Droddy

testified that he was informed that Craddock was on bail for a

"felony possession with intent to distribute" charge. In that

earlier proceeding, which occurred about "two months prior," a

search warrant had been issued "because Mr. Craddock had

secreted the particular narcotics in his anal cavity." Deputy

Droddy was also "familiar with Mr. Craddock because of previous

incarcerations." Craddock had been previously convicted of two

felonies. Droddy also knew Officer Barlow had arrested Craddock

at a place known to be a "hangout or location for the sale of

narcotics."

After his arrival at the detention center, Craddock was

"processed to go into jail" with the understanding that he had

been "brought into the sheriff's custody on a commitment brought

by the magistrate for failure to appear." Craddock initially

appeared calm and did not seem "nervous or agitated in any way."

When a deputy conducted a routine pat-down search of Craddock,

however, Craddock "seemed to be a little jumpy." After the

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pat-down search, Barlow brought Craddock to the "lockup"

section.

"When he got down to lockup," Barlow testified, Craddock

"started to get nervous." Barlow asked Craddock if he was

carrying any contraband and explained to him "that it is an

additional charge for bringing any illegal type of contraband

into the jail setting." Acting "very nervous," Craddock denied

having any contraband. Deputy Droddy then "called Mr. Craddock

over and expressed to him . . . that I possibly thought that he

may have something on him." "At that very second" Craddock's

demeanor changed "one hundred percent," going "from being very

calm and collective to being very nervous, very fidgety."

Pursuant to written policies promulgated by the sheriff,

deputies had authority to "strip search" a detainee at the

detention center if they had "reason to believe" the detainee

may be hiding contraband. Acting in accord with this policy,

Deputy Droddy informed Craddock that the deputies would conduct

a strip search. Craddock initially consented. The deputies

escorted him to a "secluded" cell where the search could take

place with some measure of privacy.

After entering the holding cell, Craddock claimed that it

was "too cold" for a strip search. On three occasions during

this conversation, Deputy Droddy explained to Craddock that it

was necessary to conduct a strip search. When Craddock began to

resist, the deputies used "pepper spray" to subdue him.

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Craddock then "began fighting and thrashing around so

dramatically that it was impossible" for the officers to conduct

the search.

Craddock continued to fight the deputies for about three to

four minutes. During this struggle, Droddy informed Craddock

"for the fourth and fifth times that he had to submit to the

test." Droddy also informed Craddock that if he "calmed down,"

Droddy would allow him to remove his own garments. Craddock

nonetheless "continued thrashing around, hollering no, and

kicking at the officers holding his feet." Only after several

minutes of struggling did Craddock grow tired enough that he

relaxed. At that point, Droddy determined that the deputies

could remove Craddock's clothing "without injuring him or

without one of us getting injured."

A deputy removed Craddock's socks and shoes, "then pulled

his pants down by using the outer pants legs." Despite

Craddock's renewed struggles, the deputies pulled Craddock's

underwear down. Droddy observed a plastic bag with suspected

narcotics between Craddock's "butt cheeks." Droddy made this

initial observation without the need to spread Craddock's "butt

cheeks apart" or to "manipulate his cheeks."

Craddock began to clench "his buttocks together so

forcefully that it was almost like he was lifting weights or

something like that." Droddy could still see the bag

"protruding from his butt cheeks." As the physical struggle

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continued, the deputies eventually pulled Craddock's legs apart.

Droddy picked up the bag, which was then resting "on top" of

Craddock's anus. Droddy testified that he did not "pull it out"

from Craddock's buttocks. "All I had to do," Droddy explained,

"was pick it up."

Craddock continued to fight with the deputies even after

they removed the narcotics from his body. As Droddy gathered

some of Craddock's belongings from the floor of the cell,

"Craddock lunged up off of the bench" at Droddy. Because of

this, Droddy "had to engage in another physical altercation with

Mr. Craddock, restraining him again."

Deputy Droddy testified that he conducted the strip search

of Craddock because of two concerns. First, "it is necessary

for me to prevent those items from getting into the facility."

Inmates "tend to use contraband, especially . . . narcotics, as

a source of power within the facility." Internal strife and

violence inevitably result from the introduction of drugs into

the jail. Second, Droddy believed the narcotics created "health

issues as far as Mr. Craddock was concerned." Drugs in the anal

cavity could make inmates "sick to the point where they are

actually deathly ill, and we have had to take them to the

hospital." A physician specializing in toxicology testified at

trial that the amount of crack cocaine possessed by Craddock

would have been "lethal" if the bag had burst and the cocaine

had been absorbed directly into the anal membranes.

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 These were not hypothetical concerns, Droddy testified. On

at lease twelve occasions, deputies had "recovered drugs off of

people being brought in through the lockup." On two occasions,

detainees had secreted narcotics "in a body cavity."

The bag of narcotics taken from Craddock contained twelve,

separately wrapped, "plastic bag corners" with a total weight of

2.556 grams of crack cocaine. The grand jury indicted Craddock

for possession of cocaine with intent to distribute. See Code

§ 18.2-248. Craddock remained incarcerated up to the time of

trial.

Prior to trial, Craddock's counsel moved to suppress the

cocaine obtained during the strip search. The trial judge

overruled the motion, holding that "the officers had an

obligation and duty to search the gentleman before he went into

the population of the lockup and/or the jail, of which I

consider one to be a part of the other." After hearing the

evidence, the trial court found Craddock guilty of obstruction

of justice, in violation of Code § 18.2-460(C), and guilty of

possession of cocaine with the intent to distribute, in

violation of Code § 18.2-248(A).

II.

Though the ultimate question whether the officers violated

the Fourth Amendment triggers de novo scrutiny on appeal, the

trial court's findings of "historical fact" bind us due to the

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weight we give "to the inferences drawn from those facts by

resident judges and local law enforcement officers." Davis v.

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)

(citing Neal v. Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d

422, 424 (1998)). We examine the trial court's factual findings

only to determine if they are plainly wrong or devoid of

supporting evidence. See Mier v. Commonwealth, 12 Va. App. 827,

828, 407 S.E.2d 342, 343 (1991).

In addition, the appellant must shoulder the burden of

showing that the trial court's decision "constituted reversible

error." McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d

259, 261 (1997) (en banc) (citations omitted); see also Davis,

37 Va. App. at 429-30, 559 S.E.2d at 378. "Absent clear

evidence to the contrary in the record, the judgment of a trial

court comes to us on appeal with a presumption that the law was

correctly applied to the facts." Yarborough v. Commonwealth,

217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); see also Oliver v.

Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875 (2001)

("The trial court's judgment is presumed to be correct.").

III.

A.

Relying on cases addressing searches incident to arrest,

Craddock argues that the officers conducted a warrantless and

personally intrusive search in violation of the Fourth

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Amendment. In reply, the Commonwealth contends that no

constitutional violation occurs where, as here, guards conduct a

strip search of a detainee being admitted into the general

population of a penal facility for the express purpose of

preventing contraband from entering the facility. This

particular search, the Commonwealth continues, did not exceed

reasonable scope and manner limitations.

We begin our analysis with a definition of terms. A "strip

search" involves "an inspection of a naked individual, without

any scrutiny of his body cavities." Kidd v. Commonwealth, 38

Va. App. 433, 446, 565 S.E.2d 337, 343 (2002). A "visual body

cavity search" goes further and "extends to a visual inspection

of the anal and genital areas." Id. (citation omitted). A

"manual body cavity search," the most intrusive search, entails

"some degree of touching or probing of body cavities." Id.

(citation omitted); see also McCloud v. Commonwealth, 35

Va. App. 276, 282-83, 544 S.E.2d 866, 869 (2001).

We next turn to the governing legal principles. The Fourth

Amendment proscribes only "unreasonable searches and seizures,"

McNair v. Commonwealth, 29 Va. App. 559, 563, 513 S.E.2d 866,

868 (1999) (en banc), not reasonable ones. A standard "not

capable of precise definition or mechanical application," Bell

v. Wolfish, 441 U.S. 520, 559 (1979), reasonableness hinges on

the facts of each case. Depending upon the circumstances,

reasonableness may permit police officers to conduct warrantless

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searches ranging from "a generalized search of the person to the

more intrusive strip search or body cavity search." Hughes v.

Commonwealth, 31 Va. App. 447, 455, 524 S.E.2d 155, 159 (2000)

(en banc).

Under the Fourth Amendment, an officer's authority to

conduct a "full search" incident to arrest "is only skin deep."

Commonwealth v. Gilmore, 27 Va. App. 320, 328, 498 S.E.2d 464,

468 (1998). Officers cannot, for example, strip search "minor

non-jailable offenders" incident to their arrest without a

showing of "reasonable suspicion" that they possess contraband

or weapons. Taylor v. Commonwealth, 28 Va. App. 638, 642, 507

S.E.2d 661, 663 (1998) (barring a strip search of an arrestee on

a misdemeanor charge of public intoxication where the arrestee

was not being admitted to the general jail population).

Officers may not conduct a manual body cavity search unless

"exigent circumstances" exist, coupled with a "clear indication"

that evidence is "located within a suspect's body." Gilmore, 27

Va. App. at 330-31, 498 S.E.2d at 469; see also Moss v.

Commonwealth, 30 Va. App. 219, 226, 516 S.E.2d 246, 249-50

(1999).

A different set of principles governs institutional

searches of pretrial detainees being processed for admission in

the general population of a penal facility. In Bell, 441 U.S.

at 558, pretrial detainees challenged a prison policy requiring

them "to expose their body cavities for visual inspection as a

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part of a strip search conducted after every contact visit with

a person from outside the institution." The prison policy did

not require any showing of individualized suspicion, but rested

solely on the institutional goal of deterring "the smuggling of

weapons, drugs, and other contraband into the institution." Id.

The United States Supreme Court upheld the search policy, which

included both strip searches and visual body cavity searches,

holding that "significant and legitimate security interests of

the institution" warranted the intrusive search. Id. at 560.

Bell grounded its holding on unique institutional concerns,

well known to the courts, about the prevalence of drugs and

weapons in the nation's correctional facilities.

A detention facility is a unique place
fraught with serious security dangers.
Smuggling of money, drugs, weapons, and
other contraband is all too common an
occurrence. And inmate attempts to secrete
these items into the facility by concealing
them in body cavities are documented in this
record[.]

Id. at 559 (citations omitted); see also Marrero v.

Commonwealth, 222 Va. 754, 757, 284 S.E.2d 809, 811 (1981)

(Possession of "drugs and weapons by inmates is a problem facing

prison officials everywhere."); Beamon v. Commonwealth, 222 Va.

707, 709, 284 S.E.2d 591, 592 (1981) (Correction officials face

an "urgent necessity of preventing, so far as possible, the

introduction into the prison of drugs and weapons.").

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 Though the record in Bell disclosed only one prior occasion

where a detainee attempted to smuggle contraband into the

facility, that fact did not dilute the rationale for the strip

searches.

That there has been only one instance where
an MCC inmate was discovered attempting to
smuggle contraband into the institution on
his person may be more a testament to the
effectiveness of this search technique as a
deterrent than to any lack of interest on
the part of the inmates to secrete and
import such items when the opportunity
arises.

Id. at 559.

In the context of detainee strip searches, the rule of

reason enforced by the Fourth Amendment cannot be simplified

into an analytical tool of "mechanical application." Id.

Instead, the reasonableness test requires a fact-specific

balancing of individual and institutional interests:

In each case it requires a balancing of 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.

Id. (emphasis added).

In our case, guided by the balancing test of Bell, we first

address the "scope of the particular intrusion." Id. at 559.

The trial court found that the deputies discovered the

contraband during a strip search of Craddock, not a visual or

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manual body cavity search. This factual finding rests on

credible evidence. Deputy Droddy observed the bag between

Craddock's "butt cheeks" before the deputies spread his legs

apart during the struggle. The bag was "sitting actually on top

of his anus." To retrieve the bag, Droddy "didn't have to pull

it out" of Craddock's anus. Instead, Droddy explained, "all I

had to do was pick it up." These facts describe an inspection

of the exterior of Craddock's buttocks, not a specific visual or

manual examination of his anal cavity.

We next consider the "manner" in which the search was

conducted. Id. The deputies removed Craddock's clothes, but

did not intrude into any body cavity. Although the deputies

physically restrained Craddock, who forcibly resisted the

search, their force was necessary to prevent Craddock from

injuring himself and the deputies. The search took place in a

secluded holding cell, a reasonable place for a strip search.

No other detainees or officers were present. Given these

circumstances, the officers did not "conduct the search in an

abusive fashion." Bell, 441 U.S. at 560.

Finally, we must examine the "justification" for the search

and the "place in which it is conducted." Id. at 559. This

particular detention center served as "an annex of the jail" and

housed hundreds of detainees, many of whom required

transportation to local courts. In this respect, the detention

center appears quite similar to the "short-term custodial

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facility" in Bell, which had been "designed primarily to house

pretrial detainees" and was "located adjacent" to the federal

courthouse. Id. at 523.

The justification for the search given in Bell likewise

applies here. The detention center faced an urgent need to

prevent the entry of drugs into the facility. The entry of

drugs into the facility compromised the safety of inmates and

officers alike. Inmates hiding cocaine in the anal cavity faced

an additional danger, possibly a lethal one, of drugs being

released into the rectal membranes. These concerns amply

justify the sheriff's policy of authorizing strip searches where

the deputies had, as Deputy Droddy did here, "reason to believe"

the detainee was concealing contraband. 1

Viewed in the light most favorable to the Commonwealth, the

evidence concerning the scope, manner, justification, and place

of Craddock's strip search comports with the standard of

1
The Commonwealth argues that the sheriff's strip search
policy, by imposing a form of individualized suspicion
requirement, goes considerably further than the Fourth Amendment
balancing test in Bell demands —— particularly given the fact
that Craddock was charged with a felony drug offense and placed
in the general population of the jail. See Illinois v. Johnson,
778 N.E.2d 772, 779-80 (Ill. App. Ct. 2002) (Under the Bell
rationale, "good penal practices not only permit, they require
strip searches before placing detainees into the general jail
population."). Because this case does not present that specific
issue for us to decide, however, we decline the "invitation to
render an advisory opinion" on the subject. Commonwealth v.
Harley, 256 Va. 216, 220, 504 S.E.2d 852, 854 (1998). Whether
Bell forbids suspicionless strip searches of pretrial felony
detainees is a question that we do not resolve.

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reasonableness required by the Fourth Amendment. The trial

court, therefore, did not err in denying Craddock's motion to

suppress the drugs discovered during this search. 2

B.

Craddock next argues that the Commonwealth failed to

provide sufficient evidence to support his conviction for

obstruction of justice. We disagree.

The crime of obstruction of justice occurs when "any person

by threats of bodily harm or force knowingly attempts to

intimidate or impede . . . any law enforcement officer, lawfully

engaged in the discharge of his duty . . . ." Code

§ 18.2-460(C). To violate the statute, the defendant must

intend to impede an officer "in the performance of his duties."

Woodson v. Commonwealth, 14 Va. App. 787, 795, 421 S.E.2d 1, 6

(1992). Impeding an officer's duties does not require the

2
In his suppression motion, Craddock also asserted that the
strip search violated the Virginia Constitution and Code
§ 19.2-59.1. Neither assertion has merit. Virginia courts
"have consistently held that the protections afforded under the
Virginia Constitution are co-extensive with those in the United
States Constitution." Sabo v. Commonwealth, 38 Va. App. 63, 77,
561 S.E.2d 761, 768 (2002) (quoting Henry v. Commonwealth, 32
Va. App. 547, 551, 529 S.E.2d 796, 798 (2000), and Bennefield v.
Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311
(1996)). In concluding that Craddock's search does not violate
the Fourth Amendment, therefore, we likewise find no violation
of the analogous provisions of the Virginia Constitution.
Further, Code § 19.2-59.1 does not apply to felony detainees,
McCloud, 35 Va. App. at 281, 544 S.E.2d at 868, and, in any
event, does not provide a statutory suppression remedy for
alleged violations, Taylor, 28 Va. App. at 641, 507 S.E.2d at
663.

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defendant to commit "an actual or technical assault upon the

officer." Love v. Commonwealth, 212 Va. 492, 494, 184 S.E.2d

769, 771 (1971). Rather, "there must be acts clearly indicating

an intention on the part of the accused to prevent the officer

from performing his duty, as to 'obstruct' ordinarily implies

opposition or resistance by direct action." Ruckman v.

Commonwealth, 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998).

In this case, Craddock physically resisted a lawful search

and continued his obstructive behavior even after the search.

The trial court, therefore, did not err in finding the evidence

sufficient to demonstrate Craddock's intent to prevent the

officers from performing their duties. Ruckman, 28 Va. App. at

429, 505 S.E.2d at 389.

C.

Craddock's final challenge contends that the evidence

failed to prove that he possessed the cocaine with an intent to

distribute. Once again, we disagree.

An individual violates Code § 18.2-248(A) when he possesses

"the controlled substance contemporaneously with his intention

to distribute that substance." Christian v. Commonwealth, 33

Va. App. 704, 716, 536 S.E.2d 477, 483 (2000) (en banc)

(citation omitted). Because of the difficulty of proving intent

directly, the Commonwealth may (and often must) rely instead on

circumstantial evidence. Morrison v. Commonwealth, 37 Va. App.

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273, 281, 557 S.E.2d 724, 728 (2002). Several factors, when

viewed together, can provide circumstantial "probative evidence

of intent" to distribute drugs. McCain v. Commonwealth, 261 Va.

483, 492, 545 S.E.2d 541, 547 (2001). Many of these factors

exist in this case.

First, the trial court qualified Officer Barlow as an

expert witness "in the field of street drug distribution." He

had arrested "numerous" drug users, as well as dealers, and had

coordinated controlled buys from street-level sellers. In the

process, he had debriefed users and dealers on various aspects

of the drug trade.

Barlow testified that "most users would use one rock a

day." One rock, he explained, weighs approximately .2 grams.

Craddock carried "12 rocks of crack cocaine" weighing 2.556

grams, considerably more than one would expect to find on a mere

user. This amount, in Barlow's opinion, was "inconsistent with

personal use." See, e.g., Clarke v. Commonwealth, 32 Va. App.

286, 304, 527 S.E.2d 484, 493 (2000) (possessing drugs in an

amount greater than that for personal use indicates intent to

distribute). The toxicologist agreed, testifying that the

amount of cocaine possessed by Craddock "would be lethal if it

was given to an individual all at one time." "It is about ten

times what people would normally take."

Second, Craddock did not possess any drug paraphernalia

and, as Barlow testified, typical users of crack cocaine

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ordinarily "would have some type of smoking device on them."

See Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d

122, 130 (1998) (en banc) (recognizing the absence of drug

"paraphernalia suggestive of personal use" as evidence of an

intent to distribute).

Third, each of the twelve rocks of crack had been

"individually packaged," indicating that the cocaine could be

sold in small, individual quantities. Id. (method of packaging

should be considered). Drug users usually carry one or two

individually packaged rocks for personal use, Barlow explained,

while retail dealers usually carry more as inventory.

Fourth, despite his many arrests and debriefing sessions,

Barlow testified that he personally had never observed users

"have the drugs in their buttocks." In contrast, he pointed

out, dealers often concealed drugs "in between their butt

cheeks."

Fifth, Barlow arrested Craddock in a "known hangout or

location for the sale of narcotics." See, e.g., Kidd v.

Commonwealth, 38 Va. App. 433, 448-49, 565 S.E.2d 337, 344-45

(2002) ("[T]he characterization of the area in which an accused

was arrested as an area known for drug transactions has been

found to be another relevant factor in determining intent.").

Sixth, Craddock argued at trial that a "reasonable

hypothesis would be he was holding the drugs as accommodation,

not for profit." Code § 18.2-248, however, does not distinguish

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between profit and not-for-profit distribution for purposes of

criminal liability. "Whether a defendant acted only to

accommodate another is a determination to be made after guilt

has been decided and in contemplation of the penalty to be

imposed." Foster v. Commonwealth, 38 Va. App. 549, 555, 567

S.E.2d 547, 550 (2002). An intent to accommodate, conceptually

speaking, is a subset of the intent to distribute. See Code

§ 18.2-248(D).

The combined force of these evidentiary factors, coupled

with Craddock's concession on accommodation, provided a

sufficient basis for the trial court to find that Craddock

intended to distribute the drugs found in his possession.

IV.

In sum, the trial court did not err by denying Craddock's

motion to suppress. Applying the balancing test of Bell, the

pre-admission strip search of Craddock did not violate the

Fourth Amendment's proscription against unreasonable searches.

The evidence also sufficiently established Craddock's guilt for

obstructing justice and for possessing cocaine with an intent to

distribute.

Affirmed.

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