Search and Seizure: Search of defendant’s underwear wasn’t unlawful

Where an officer retrieved a bag of drugs from the defendant’s underwear, the trial court did not err when it held the search was legally and factually reasonable.

Background

After denying a motion to suppress, the trial court convicted Shanta Orlando Hubbard of possession with intent to distribute cocaine. The Court of Appeals vacated Hubbard’s conviction, holding that the trial court had erred in denying Hubbard’s motion to suppress.

Analysis

When the physical manner of a search incident to arrest arguably offends the basic reasonableness limitation of the Fourth Amendment, courts apply (as the Court of Appeals did here) a “heightened standard” that requires a “special justification” for searches that are peculiarly intrusive.

The question in this case is whether the retrieval of the bag of drugs from Hubbard’s underwear by the officer (Waterman) was reasonable under the circumstances of this case. After hearing the evidence and weighing the credibility of the witnesses, the trial court held it was legally and factually reasonable. Applying the governing Fourth Amendment principles and viewing the record through the proper standard of appellate review, this court agrees.

The evidence established that the physical search of Hubbard occurred after the officers had probable cause to arrest him for drug possession due to the smell of marijuana and the discovery of marijuana shake and suspected bags of controlled substances in the vehicle. The officers thus had the authority to conduct a search incident to arrest.

During this search, Waterman did not undress Hubbard fully or partially. His naked body was never exposed to the public. The officer discovered the “large rock-like object” while Hubbard was fully clothed. At that time, the officer was patting down the outside of Hubbard’s underwear underneath his shorts. The officer later pulled the waistband of Hubbard’s underwear out far enough to see the suspected bags of contraband and retrieve them.

At no point were Hubbard’s underwear pulled down or off. The bags of cocaine were “just sitting down between [Hubbard’s] buttocks and his underwear.” The officer could easily see the bags and “didn’t have to go inside his buttocks to feel the item.” The plastic bag (containing 87 smaller baggies) was not damaged and did not have “bodily fluid or other bodily items” on it.

This court need not delineate the exact definitional distinctions between the various categories of invasive body searches to answer the question presented in Hubbard’s case. The circumstances of this case justify the officer’s conduct no matter what label we put on the challenged search.

Waterman removed the bag from Hubbard’s underwear while he was physically resisting the search. If Hubbard “were to break the bag,” it would have spilled out its contents in the immediate presence of the restraining officers, Hubbard and the other passenger. Waterman had been instructed by his command to not field test “bags of white powder” because of the risk that they may be laced with fentanyl, which “has become so dangerous in today’s time that a simple poof of that powder that could reach [their] nostrils could kill [them].”

Given the “inherent dangers of fentanyl,” breaking open a bag containing it “could be deadly to every single person that was standing out there.” Waterman’s safety, the safety of his colleagues and even the safety of Hubbard and the other passenger justified eliminating this patently unreasonable risk.

As Waterman testified, the life-threatening risk to Hubbard was not some fanciful speculation. In a previous arrest of another suspected drug dealer, Waterman had felt a bag of suspected drugs in an arrestee’s underwear. Instead of removing the bag on the scene, Waterman decided to put that task off until he had delivered the arrestee to jail. In transit, the bag burst and the arrestee “overdosed” in the back of Waterman’s police vehicle.

It was factually prudent and legally reasonable for Waterman to avoid taking that risk with Hubbard regardless of the type of potential controlled substance that the bag may have contained. Further supporting the objective reasonableness of the search was Waterman’s duty to ensure that evidence of the crime was not damaged or destroyed.

Reversed and final judgment.

Commonwealth v. Hubbard, Record No. 240310, Sept. 11, 2025 (Kelsey). From the Court of Appeals of Virginia. VLW 025-6-022. 16 pp.