Hughes v. Com.

• Citation: 31 Va. App. 447,524 S.E.2d 155
• Decision Date: 01 February 2000
• Docket Number: Record No. 0702-98-2.
• Parties: Bryon K. HUGHES, s/k/a Bryan K. Hughes v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

524 S.E.2d 155
31 Va. App. 447

Bryon K. HUGHES, s/k/a Bryan K. Hughes
v.
COMMONWEALTH of Virginia

Record No. 0702-98-2.

Court of Appeals of Virginia, Richmond.

February 1, 2000.

524 S.E.2d 157

Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant

524 S.E.2d 158

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

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, LEMONS and FRANK, JJ.

UPON A REHEARING EN BANC

COLEMAN, Judge.

Bryan K. Hughes was convicted in a bench trial of possession of cocaine with intent to distribute in violation of Code § 18.2-248. He contends the trial court erred by denying his motion to suppress evidence obtained during a warrantless body cavity search.

In an unpublished opinion, a divided panel of this Court affirmed the trial court's ruling. We granted rehearing en banc. Upon rehearing, we hold that the trial court erred by denying Hughes' motion to suppress the evidence. Accordingly, we reverse the trial court's ruling, vacate the panel decision, and dismiss the indictment.

BACKGROUND

On July 10, 1997, Detective J. Renee Payne of the Richmond Police Department received the following message on her "voice mail" from a known and reliable informant:

there was a very light complected male standing out in the front walk in the area of 320 West Grace Street, and that that person was dealing narcotics there, that he was keeping the money in his left pocket, and that drugs were kept in his underwear area, and that he was wearing a white shirt, blue jeans and he had very pretty hair.

Acting on this information within ten minutes of its receipt, Payne, accompanied by two other uniformed officers, arrived at the intersection of Grace and Madison and observed Hughes standing in the area indicated by the informant. The officers determined that Hughes, "a very light complected male with dark wavy hair wearing blue jeans and a white shirt," was the individual described in the tip.

Payne approached Hughes and advised him "that [she] had received information that a person fitting his description was out there dealing narcotics." Hughes denied possessing any drugs or weapons and consented to a pat-down search, which revealed money in Hughes' left pocket. When Payne discovered the money, she declared, "Well if the money is in your left pocket, then, the drugs should be in your underwear." Hughes agreed to allow Payne to "check further." To "ensure [Hughes'] privacy," Officer Rogers escorted Hughes into the front hallway of a nearby apartment building. Rogers "check[ed]" Hughes' underwear, but he found nothing. Rogers then said, "Well, if it's not in the front of your underwear, it's got to be behind you," adding "You don't mind going ahead and bending over then, right?" Without responding, Hughes bent over. "At that time, [Rogers] told him to cough and it was at that point when [Hughes] coughed that [he] saw the plastic bag." When Rogers observed part of a plastic bag protruding "halfway" from Hughes' anus and "shake in the air," using gloves, he removed the bag, which contained cocaine, from Hughes' anal cavity.

ANALYSIS

Hughes contends the cocaine was seized by the police during an unlawful body cavity search and that the trial court erred by failing to suppress the evidence. Hughes argues that he did not voluntarily consent to the search and that the body cavity inspection and removal of the plastic bag exceeded the scope of his consent to the pat-down search and his consent to allow the officers to "check further." Hughes also argues that the officers lacked probable cause to arrest him; therefore, the search could not have been a lawful search incident to arrest.

When we review a trial court's denial of a suppression motion, "[w]e view the evidence in a light most favorable to ... the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence." Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In our review, "we are bound by the trial court's findings of historical fact

524 S.E.2d 159

unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Omelets v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the Fourth Amendment. See id.

"A warrantless search is per se unreasonable and violative of the Fourth Amendment of the United States Constitution, subject to certain exceptions." Tipton v. Commonwealth, 18 Va.App. 370, 373, 444 S.E.2d 1, 3 (1994) (citation omitted). However, searches made by law enforcement officers pursuant to a valid consent to search do not implicate the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Iglesias v. Commonwealth, 7 Va.App. 93, 99, 372 S.E.2d 170, 173 (1988) (en banc). When relying upon consent as the justification for a search, the Commonwealth must prove, based upon the totality of the circumstances, that the consent was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Hairston v. Commonwealth, 216 Va. 387, 388, 219 S.E.2d 668, 669 (1975); Commonwealth v. Rice, 28 Va. App. 374, 378, 504 S.E.2d 877, 879 (1998). "A consensual search is reasonable if the search is within the scope of the consent given." Grinton v. Commonwealth, 14 Va.App. 846, 850-51, 419 S.E.2d 860, 862 (1992).

The United States Supreme Court has not expressly defined the term "search." A search for Fourth Amendment purposes encompasses a wide range of investigative techniques, including wiretapping, electronic surveillance or eavesdropping, photo-optic surveillance, and encompasses physical entry or visual inspection of personal papers, containers, vehicles, buildings, or the person. As Professor LaFave points out:

[u]nder the traditional approach, the term "search" is said to imply

"some exploratory investigation, or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive, or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a `search.'"

1 Wayne R. Lafave, Search and Seizure § 2.1(a), at 379 (3d ed.1996) (quoting C.J.S. Searches and Seizures § 1 (1953)). Under the Fourth Amendment, a search is an invasion into a space or area where a person has a reasonable expectation of privacy in the "person," or the person's "houses," "papers," or "effects."

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 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'...