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Strip-search evidence admissible

Appellant Abdul Cole was arrested for an outstanding warrant; upon arrest, he was also charged for an open container and possession of marijuana. When Alexandria police took Cole to the jail for booking, the booking deputy said that a strip search was needed. In the jail’s designated strip-search area, Cole did not comply with the instruction to “turn around and squat,” and officers noticed “a white plastic baggy hanging out of his anus.” After a brief struggle, during which Cole “took the bag out of his anus and put it in his mouth,” officers recovered the bag from Cole. The bag contained a substance which, after testing, was determined to be cocaine. Based on this evidence, Cole was indicted for possession with intent to distribute.

Before trial, Cole moved to suppress the evidence recovered during the strip search, and the circuit court granted his motion on Fourth Amendment grounds. But on the Commonwealth’s pre-trial appeal of this ruling, the Court of Appeals reversed, finding that the search was permissible under Florence v. Board of Chosen Freeholders, 566 U.S. 318 (2012). On remand, the trial court found Cole guilty of possession with intent to distribute cocaine.

Cole appealed the conviction, but the Court of Appeals denied his petition by per curiam order. It asserted that its review of its prior ruling on the motion to suppress and the constitutionality of the strip search was precluded by the “law of the case” doctrine, due to its ruling in the pretrial appeal. This appeal followed.

Appellate court reconsideration

Under Code § 19.2-398(A)(2), the Commonwealth may pursue a pretrial appeal to the Court of Appeals from a circuit court’s order on inadmissibility under the Fourth Amendment. Pursuant to Code § 19.2-409, the finality of the Court of Appeals’ decision in that circumstance shall not preclude a defendant, if he is convicted, from requesting an appellate court on direct appeal to reconsider an issue that was the subject of the pretrial appeal. Thus, the Court of Appeals was authorized to reconsider the issue of the constitutionality of the strip search (and whether resulting evidence was admissible) when presented on Cole’s direct appeal. The Court of Appeals erred in failing to do so.

Strip-search evidence

Under applicable U.S. Supreme Court jurisprudence, the court concludes that Cole’s strip search prior to seeing a magistrate was not an unconstitutional search, and the evidence it produced was therefore admissible.

In Bell v. Wolfish, 441 U.S. 520 (1979), the U.S. Supreme Court set forth a general proposition that strip searches of inmates and detainees will not violate the Fourth Amendment if they are reasonable in light of institutional security interests and that, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. In that case, the Court upheld a policy requiring strip searches of detainees after every contact visit with a person from outside the detention facility, even without probable cause. Without “underestimating the degree to which these searches may invade the personal privacy of inmates,” the Court noted that a “detention facility is a unique place fraught with serious security dangers,” that the “smuggling of money, drugs, weapons, and other contraband is all too common,” and that inmate attempts to [bring] these items into the facility by concealing them in body cavities were well-documented.

Subsequently, in Florence, the Court concluded that a jail policy to strip search every new detainee entering the general population of a jail, including those arrested for minor offenses, struck a reasonable balance between inmate privacy and the needs of the institutions, such as the need to detect illness, gang membership, and contraband.

Here, the jail authorizes strip searches for incoming detainees, like Cole, who have been charged with offenses involving drugs, weapons, or violence. Such detainees are initially held in the booking area, a “very mixed use” area where detainees are in a group, unhandcuffed, and generally able to move around freely. Under these circumstances, the considerations cited in Florence are even more important, as a group setting increases the risk for illicit trade and/or violence.

In addition, the jail’s policy to strip search only new detainees charged with offenses involving drugs, weapons, or violence – and only with supervisor approval – further demonstrates that the policy is reasonable.

Accordingly, the Court of Appeals did not err by reversing the circuit court’s initial decision to grant Cole’s motion to suppress the strip-search evidence.

Cole v. Commonwealth, Record No. 161113, Nov. 16, 2017; Va. (Goodwyn); Va. App. VLW No. 017-6-089, 19 pp.

VLW 017-6-089