Supreme Court upholds admissibility of drugs seized from defendant’s underwear

The denial of a motion to suppress incriminating evidence in a drug case was proper, the Supreme Court of Virginia has determined.

The case stemmed from a police officer’s discovery and removal of a bag of drugs from the defendant’s underwear following a traffic stop.

When defendant Shanta O. Hubbard moved to suppress the evidence, a Lynchburg Circuit Court judge denied the motion, and Hubbard was convicted of possession with intent to distribute cocaine.

Hubbard appealed to the Court of Appeals, which vacated the conviction after finding that the trial judge erred in denying the motion to suppress.

But the Supreme Court disagreed.

Writing for the court, Justice D. Arthur Kelsey said the key legal question was if the officer’s removal of the drugs from the suspect’s underwear was reasonable under the circumstances.

“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,” Kelsey wrote.

Kelsey noted that the officer’s physical search of the defendant came after police had established probable cause to arrest him for drug possession.

During the search, Kelsey wrote, the officer “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.”

In a16-page opinion published on Sept. 11, the Supreme Court ruled that the circumstances in Commonwealth v. Hubbard (VLW 025-6-022) “justify the officer’s conduct no matter what label we put on the challenged search.”

Fentanyl concerns

Spokesperson Shaun Kenney said the Office of the Attorney General was pleased with the Supreme Court’s unanimous ruling “consistent with the plain text of the Fourth Amendment.”

Appellate litigator Rachel Yates of Glen Allen said the decision is important for criminal defense attorneys who encounter strip searches, while also being a good reminder that the standard of review controls.

Yates added that the Supreme Court “reiterated that the facts must be viewed in the light most favorable to the prevailing party — here, the commonwealth. The [court] emphasized that the touchstone of the Fourth Amendment is reasonableness. And the unanimous court determined the search here was reasonable.”

Criminal defense attorney Rhonda Quagliana of MichieHamlett in Charlottesville said while the opinion condones the officer’s “intrusive search” and retrieval of drugs from the defendant’s underwear, it’s noteworthy that it does not clarify whether the doctrine of search-incident-to-arrest or the doctrine of exigent circumstances applied.

Our courts need to evaluate critically whether a true emergency exists so that we don’t end up with a general ‘fentanyl-danger exception’ to the warrant requirement.

— Rhonda Quagliana, Charlottesville

“That’s important because the doctrine of search-incident-to-arrest applies categorically while the doctrine of exigent circumstances provides a ‘case-by-case’ exception to the warrant requirement. To that extent, Hubbard doesn’t announce any major shift in the law regarding the reasonableness of intrusive body searches,” Quagliana said.

Quagliana also noted that Hubbard reflects the court’s recognition of the country’s ongoing fentanyl crisis. According to court filings, the officer was concerned the bag of drugs found on the suspect could contain fentanyl. If the bag were to break, police claimed the fentanyl exposure could be life-threatening to both the suspect and others nearby.

Quagliana said she expects continued challenges to warrantless searches based on police claims of potential danger from fentanyl poisoning.

“Our courts need to evaluate critically whether a true emergency exists so that we don’t end up with a general ‘fentanyl-danger exception’ to the warrant requirement,” Quagliana said. “But here, the court really justified the search as ‘objectively reasonable’ because the officer didn’t expose, touch or invade Mr. Hubbard’s body.  Reaching into his underwear to remove a bag of drugs was ‘objectively reasonable’ under the circumstances.”

Rights waiver

The case stemmed from a June 2020 incident in which a Lynchburg police officer stopped the defendant’s vehicle after it allegedly pulled in front of another car, causing the other driver to slam on the brakes to avoid a collision. Police also claimed that the rear window tint was too dark.

According to court filings, when the officer approached the defendant’s vehicle, he detected the odor of marijuana. The officer also found that the defendant had an active Fourth Amendment rights waiver due to a 2012 plea agreement. Based on that information, police ordered the defendant and a passenger out of the vehicle and began searching it.

An officer found suspected drug paraphernalia — including knotted bags with white and brown powder — inside the vehicle.

When an officer began to search the defendant, he found about $2,000 in cash in his pockets. He also reported feeling “‘a large rock-like object’ consistent with a controlled substance” when he swiped his hand over the defendant’s buttocks outside of his underwear. When the defendant tried to reach inside his shorts while handcuffed behind his back, his shorts dropped to his ankles. Police pulled them back up.

Police planned to resume the search at the jail, but when the defendant began struggling again, they said they feared he would try to destroy whatever he was attempting to conceal. They also expressed concern that whatever the defendant was apparently trying to hide could be dangerous drugs or a weapon.

Officers then looked inside the suspect’s underwear and saw an item, later identified as a plastic bag containing nearly 90 smaller bags of crack and powder cocaine, between the defendant’s buttocks and his underwear.

The defendant filed a motion to suppress the evidence before trial, claiming that the police “‘egregiously perform[ed] a body cavity search’ and that ‘[e]ven in light of [his]  Fourth Amendment waiver, a warrantless body cavity search is peculiarly intrusive and does not fall within the scope and consent of the waiver.’”

‘Legally reasonable’

The Supreme Court found that the Fourth Amendment’s literal text and its historical context establish reasonableness as “the ‘ultimate touchstone.’”

The defendant argued that the officer conducted an unreasonable and “intrusive bodily search” in violation of the Fourth Amendment standard for intrusive body searches. However, the lower court “did not ‘resolve whether a body “cavity” includes the area between a clamped-together posterior because whether the search was a strip search or something more intrusive,’ such as a manual or visual body cavity search, ‘it needed to be supported by exigent circumstances,’ which it concluded the record did not support,” Kelsey wrote.

Citing the U.S. Supreme Court’s 2012 decision in Ryburn v. Huff, Kelsey wrote that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.”

Further, Kelsey wrote that “given the misleading confidence of hindsight, the Supreme Court of the United States has counseled that ‘judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.’”

The court went on to note that the Court of Appeals rejected other alternative theories of exigency put forth by the commonwealth, such as potential destruction of evidence or potential harm to the safety and health of the defendant himself if the bag broke, causing an overdose.

As a result of insufficient evidence presented in the record to support the alternative exigencies without further factual development, the “right result wrong reason doctrine” could not apply, Kelsey wrote.

Additionally, Kelsey cited the officer’s testimony in noting that the life-threatening risk of a drug overdose was not just speculation.

“In a previous arrest of another suspected drug dealer, [the officer] had felt a bag of suspected drugs in an arrestee’s underwear. Instead of removing the bag on the scene, [the officer] 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 [the officer’s] police vehicle,” Kelsey wrote.

Thus, Kelsey said, “it was factually prudent and legally reasonable for [the officer] to avoid taking that risk with [the defendant] regardless of the type of potential controlled substance that the bag may have contained. Further supporting the objective reasonableness of the search was [the officer’s] duty to ensure that evidence of the crime was not damaged or destroyed.”

The Supreme Court agreed with the commonwealth’s contention that the Court of Appeals misapplied the governing Fourth Amendment standard and failed to view the evidence in the light most favorable to the state.

“In sum, the trial court correctly denied Hubbard’s motion to suppress the incriminating evidence against him,” Kelsey wrote. “The Court of Appeals erred in concluding otherwise. The search incident to Hubbard’s arrest fully comported with Fourth Amendment standards.”