Cole v. Commonwealth

• Decision Date: 16 November 2017
• Docket Number: Record No. 161113
• Citation: 806 S.E.2d 387,294 Va. 342
• Parties: Abdul COLE v. COMMONWEALTH of Virginia
• Court: Virginia Supreme Court

294 Va. 342

806 S.E.2d 387

Abdul COLE

v.COMMONWEALTH of Virginia

Record No. 161113

Supreme Court of Virginia.

November 16, 2017

Kevin T. Gaynor, Senior Trial Counsel, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General; on brief), for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE S. BERNARD GOODWYN

In this appeal, we consider whether the Court of Appeals of Virginia erred by reversing a circuit court's decision to grant a motion to suppress evidence recovered during a strip search.¹ We also consider whether the Court of Appeals erred by affirming a conviction for possession of cocaine with the intent to distribute.

BACKGROUND

On April 8, 2014, Officer Tony Moore (Officer Moore) of the Alexandria Police Department arrested Abdul Rahman Cole (Cole) for an outstanding warrant from Arlington, and also charged him "for an open container ... and possession of marijuana" based on items found during an inventory search of Cole's car following Cole's arrest.² Officer Moore then took Cole to the Alexandria Detention Center (Jail). Officer Moore informed the booking deputy, Deputy Robert Roland (Deputy Roland), about the Arlington warrant and the new charges for the open container and marijuana. "[U]pon hearing the drug charge," Deputy Roland said that a strip search was needed, and conducted an initial search in the sally port area before taking Cole to the strip search area of the Jail.

Officer Moore, Deputy Roland, and Cole were in the strip search area behind a closed door, when Cole complied with the instruction to remove his clothing. However, Cole did not comply with the instruction to "turn around and squat," and Officer Moore then "noticed a white plastic baggy hanging out of his anus," and told Cole to put his hands up. After a brief struggle, during which Cole "took[ ] [the bag] out of his anus and put it in his mouth," Officer Moore recovered the bag from Cole. The bag contained a substance which, after testing, was determined to be cocaine. Based on evidence recovered during that strip search, Cole was indicted in the Circuit Court of the City of Alexandria for possession with the intent to distribute cocaine in violation of Code § 18.2-248.³

MOTION TO SUPPRESS

Prior to trial, the Commonwealth provided Cole a copy of a Certificate of Analysis from the Department of Forensic Science (Certificate). The Certificate listed the bag removed from Cole's anus as "one plastic bag containing fourteen plastic bag corners containing off-white solid material." The contents of five of the 14 bag corners were analyzed separately, and each contained cocaine. Together the bags contained 5.1606 grams of cocaine. The remaining nine bag corners were not tested, and they had a gross weight (including packaging) of 5.2905 grams.

Cole filed a motion to suppress the evidence described in the Certificate. He argued that the evidence from the strip search should be suppressed, because: "[o]fficers may not conduct a strip search of arrestees charged with minor, non-jailable offenses without a showing of ‘reasonable suspicion’ that they possess or are secreting drugs or weapons;" Cole had not yet been before a magistrate; the Arlington warrant provided no basis to suspect him of hiding contraband; and the only basis for the strip search was the marijuana charge that was based on an allegedly illegal search of his car.

The Commonwealth responded that the strip search of Cole was reasonable and permissible under the Fourth Amendment, and that the search was justified, because he "was going to be entering the jail population" due to the Arlington warrant and because "he had been found to possess drugs at the time of his arrest."

The circuit court held a hearing on the motion to suppress on August 28, 2014. Officer Moore testified that he charged and arrested Cole as described above. He stated that he also found $600 in Cole's pocket, and found Cole's cell phone, an open container of alcohol, and a small cigar that contained marijuana in Cole's car.

Deputy Roland testified that a strip search is performed at the Jail for "[a]nyone that comes in on a drug charge, a weapons charge, or any violent-type crime," and that his supervisor authorized the strip search based on Cole's charges alone. He explained that the booking area of the Jail is for people held for "two to three days," and that whether a person brought in on a warrant from another jurisdiction was detained in the booking area or was processed into the Jail depended on "how long until the jurisdiction's going to come get them." He explained that, "[m]ost of the time," an individual detained in the booking area is not detained in a room by himself or herself. He acknowledged that it was possible that Cole might have been released without entering the general population of the Jail.

On September 5, 2014, the Commonwealth filed a supplemental memorandum requesting to present additional evidence about the Jail's booking area operation and policies. It argued that the Jail's strip search policy was reasonable under Florence v. Board of Chosen Freeholders, 566 U.S. 318, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012), which upheld jail policies requiring a strip search of incoming inmates to prevent the spread of illness and contraband, "regardless of the circumstances of the arrest, the suspected offense, or the detainee's behavior, demeanor or criminal history."⁴ Cole filed objections seeking to distinguish Florence on the ground that it only addressed inmates entering a jail's general population, and that, even under Florence, the strip search was unreasonable, in light of the fact that he was arrested on minor, nonviolent offenses and it had not been determined that he would enter the general Jail population.

The court resumed the hearing on the motion to suppress on September 11, 2014, and allowed the parties to present additional evidence. Lieutenant Joseph Penkey of the Alexandria Sheriff's Office (Lieutenant Penkey) testified about the layout and procedures of the Jail. The upper three floors of the Jail contain the general population inmates, the mental health unit, and disciplinary segregation. The first floor is "very mixed use," and includes the booking area, the sergeant's office, "some specialized housing units" for general population inmates separated by secure doors, a living unit for the workers, the control center, and the visitor center. Four deputies are normally assigned to the booking area. He stated that in the booking area, "the normal number of people you'd be faced with like coming on shift might be 25 in the cells or waiting to be processed either in or out."

Regarding the physical layout of the booking area, there are 12 individual cells, three "fairly large" cells where "three people could fit in easily," and "four fairly large cells where a group of people can be." The cells have toilets, and there is a cell with a shower and toilet next to the booking counter, and another room down the hall with two showers and bathroom supplies, which is where the strip searches occur. There is a waiting area of 18-20 plastic chairs in a line "in front of the booking counter" for people who are waiting to be processed, released, go to court, or see the magistrate, and "inconveniently in the middle of that" is the phone bank for inmates to make calls. Lieutenant Penkey explained that those phones are not for the general population inmates, but that such inmates "sometimes use them."

Lieutenant Penkey also testified that people in the waiting area are generally not handcuffed, and, although the deputies try to keep people "separated as much as [they] can," there are no physical barriers in the waiting area. He stated that the individual cells were for people who needed close observation, but that it is generally "best not to isolate" people during the first 72 hours, so they put detainees in the group cells unless "there's something about the person's behavior that prevents us from doing that."

Regarding Jail procedures, Lieutenant Penkey stated that detainees are brought in to a sally port for an initial search, and their property is taken for inventory and to ensure safety before they move into the booking area. He stated that a police officer informs the deputy of the charges against the detainee, and the deputy contacts the sergeant to make a determination about a strip search if the detainee was charged with a drug or weapons violation, or if drugs or weapons were found on the person. He said that the sergeant makes that determination based on the charges and the circumstances of the arrest. He testified that the deputies "keep[ ] an eye on" the detainees in the booking area, and detainees are "pretty much" always escorted within booking, but there is not a "one on one escort if they walk over to the restroom" next to the booking counter.

The circuit court granted Cole's motion to suppress the evidence recovered from the strip search (Strip Search Evidence), on the grounds that Florence was distinguishable, that a "higher standard" applies to the strip search of a detainee prior to him or her being taken before a magistrate, and that "without any particularized suspicion as to whether or not [Cole] was hiding drugs on his person," "such a search as the one that happened in this case, would be a violation of his Fourth Amendment rights."

PRETRIAL APPEAL OF MOTION TO SUPPRESS

The Commonwealth filed a pretrial appeal of the ruling on the motion to suppress with the Court of Appeals of Virginia. Commonwealth v. Cole, Record No. 1744-14-4, 2015 WL 674352, 2015 Va. App. LEXIS 53 (Feb. 13, 2015). Upon consideration of the matter, the Court of Appeals reversed the circuit court's decision to grant the motion to suppress the Strip Search Evidence. The Court of Appeals concluded that Florence authorized the "visual body cavity search" of Cole, because even though he had not yet been processed into the Jail's general population, he "was being...