COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
CHARLES LEE TAYLOR
OPINION BY
v. Record No. 2185-97-2 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender, for appellant.
Richard Barton Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Charles Lee Taylor appeals the denial of his motion to
suppress evidence obtained during a strip search. The defendant
entered a conditional plea of guilty to possession of cocaine and
preserved his right to appeal the denial of the motion to
suppress. He argues that the strip search violated his Fourth
Amendment rights. We agree and reverse his conviction.
A police officer saw the defendant walking in a known drug
area. When the officer said he wanted to speak with him, the
defendant approached. While they talked, the officer noticed the
defendant's eyes were bloodshot and he had a strong odor of
marijuana on his breath. The defendant was cooperative and
laughing, and admitted smoking marijuana earlier that day saying,
"you know I smoke marijuana." The officer arrested the defendant
for public intoxication.
The officer frisked the defendant for weapons and contraband
before placing him in the cruiser. He patted down the
defendant's outer garments, pockets, crotch, arms, and legs. He
found nothing, and nothing caused him to suspect the defendant
might be concealing contraband or weapons. At the jail, the
officer advised the defendant that he would be strip searched.
The arresting officer called for two deputies to assist when the
defendant objected and became combative. The officer said that
since the defendant's lack of cooperation got worse at this time,
it "made me think he had something on him." The officers made
the defendant remove one item of clothing at a time. When the
defendant removed his underwear, they observed a plastic bag
protruding from his anus. The officers seized the plastic bag
which proved to contain cocaine.
The defendant contends that the evidence should be excluded
because the strip search was illegal pursuant to Code § 19.2-59.1
and the Fourth Amendment. However, the fact that a search
violates a legislative mandate without violating the Constitution
does not provide for the exclusion of such evidence. See Hatcher
v. Commonwealth, 14 Va. App. 487, 493, 419 S.E.2d 256, 260
(1992). See also Troncoso v. Commonwealth, 12 Va. App. 942, 944,
407 S.E.2d 349, 350 (1991) (Code § 19.2-60 does not authorize the
suppression of evidence unless there is a constitutional
violation or a violation of a statute which expressly provides
for suppression). As a result, we turn our analysis to whether
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the strip search violated the defendant's constitutional rights.
On appeal of a motion to suppress, the defendant has the
burden of proving that a warrantless search violates his Fourth
Amendment rights. See Fore v. Commonwealth, 220 Va. 1007, 1010,
265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). We view
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible from
the evidence. See Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). "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. Ornelas v. United States, 517 U.S. 690, 699
(1996). We review de novo the application of defined legal
standards to the particular facts of a case. See id.
A lawful custodial arrest authorizes a full search of the
person. See United States v. Robinson, 414 U.S. 218, 234-35
(1973) (defendant arrested for minor traffic offense). However,
strip searches require special justification since they are
peculiarly intrusive. "Strip searches of detainees are
constitutionally constrained by due process requirements of
reasonableness under the circumstances." Logan v. Shealy, 660
F.2d 1007, 1013 (4th Cir. 1981), cert. denied, 455 U.S. 942
(1982). In each case we must balance "'the need for the
particular search against the invasion of personal rights that
the search entails.'" Id. (quoting Bell v. Wolfish, 441 U.S.
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520, 559 (1979)). See Commonwealth v. Gilmore, 27 Va. App. 320,
328, 494 S.E.2d 464, 468 (1998) (police authority to conduct
warrantless search is "only skin deep"). "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." Bell, 441 U.S. at 559-60 (holding that
both inmates and pre-trial detainees can be visually strip
searched in the interests of "significant and legitimate security
interests").
If strip searches of minor non-jailable offenders are
conducted without reasonable suspicion that the detainee
possesses contraband or weapons, they fail the balancing test of
Bell v. Wolfish, 441 U.S. 520 (1979). See Stewart v. Lubbock
County, 767 F.2d 153, 156-57 (5th Cir. 1985), cert. denied, 475
U.S. 1066 (1986) (strip searches conducted without reasonable
suspicion that minor offenders had possession of contraband are
unreasonable and violate the Fourth Amendment). See also Mary
Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)
(strip searches prohibited where minor offenders are not
inherently dangerous, are not being committed to a jail
population but are merely being briefly detained, and officers
have no reason to believe they are hiding weapons or contraband).
Searches may not be conducted on the "'mere chance that desired
evidence might be obtained.'" Gilmore, 27 Va. App. at 329, 494
S.E.2d at 468 (quoting Schmerber v. California, 384 U.S. 757,
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769-70 (1966)). See LaFave & Israel, Criminal Procedure
§ 3.5(c), at 177 (2d ed. 1992) (routine strip searches cannot be
"employed against all classes of arrestees").
The Commonwealth contends that the officer had reasonable
suspicion to believe that the defendant possessed contraband. It
contends that the defendant smelled of marijuana, admitted recent
use of the drug, and was arrested for marijuana intoxication in
an area known for drug dealing. The Commonwealth emphasizes that
the defendant became belligerent when informed he would be strip
searched, and it maintains that this constituted reasonable
suspicion that he was hiding contraband.
The Commonwealth argues that this case is unique because the
nature of the defendant's offense is commonly associated with the
possession of contraband as compared with other non-drug offenses
or with driving under the influence charges. It argues those
factors outweigh the limited invasion of the defendant's personal
rights and justify the strip search. This attempt to distinguish
the present case from those cited herein is unpersuasive.
The officer suspected that the defendant possibly possessed
contraband because the defendant became belligerent when told of
the search. However, "post hoc rationalizations have no place in
our Fourth Amendment jurisprudence, which demands that we
'prevent hindsight from coloring the evaluation of the
reasonableness of a search.'" United States v. Montoya de
Hernandez, 473 U.S. 531, 559 (1985) (quoting United States v.
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Martinez-Fuerte, 428 U.S. 543, 565 (1976)). The officer's main
reason to suspect contraband did not develop until after the
officer decided to conduct the strip search. What happened after
the officer announced his intent to conduct the strip search
cannot be used to justify the search; the suspicion had to exist
before the search commenced.
Discarding the evidence of the defendant's reactions to the
officer's announcement of the strip search, we are left with
insufficient facts to constitute reasonable suspicion. The
defendant was cooperative and congenial prior to his arrest for a
minor, non-jailable offense. The officer had no trouble patting
the defendant down, and nothing made him suspect contraband or
weapons during the routine pat down. An arrest for public
intoxication by drugs justifies a search of the arrestee
incidental to the arrest. However, when the search reveals
nothing and does not raise any further suspicions, no reasonable
suspicion exists that contraband must still be on the person and
can only be revealed by a strip search.
The defendant was arrested for a non-jailable offense and
would not be placed in the general jail population, so no
institutional security consideration existed. The officer lacked
reason to believe the defendant possessed either contraband or
weapons. We conclude that the officer lacked suspicion
sufficient to outweigh the defendant's personal privacy interest.
The evidence should have been suppressed, and we reverse the
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trial court's denial of the defendant's motion to suppress.
Reversed.
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