Moss v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons

Argued at Salem, Virginia

TRACY LEWAYNE MOSS

OPINION BY

v. Record No. 1235-98-3 JUDGE DONALD W. LEMONS

JULY 6, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

Mosby G. Perrow, III, Judge

Amanda E. Shaw, Assistant Public Defender

(Office of the Public Defender, on brief),

for appellant.

Marla Graff Decker, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Tracy Lewayne Moss appeals from his convictions for

possession of cocaine and escape from custody. On appeal, he

argues (1) that his motion to suppress evidence seized in a

strip search should have been granted, and (2) that because he

was not lawfully in custody he could not be guilty of escape.

We hold that his motion to suppress should have been granted but

also hold that he was in custody for purposes of his conviction

for escape. Accordingly, we affirm in part, reverse in part,

and remand.

I. BACKGROUND

On October 22, 1997, Investigators K.T. Swisher, Wayne

Duff, and Kevin D. Holyfield of the Lynchburg Police Department

stopped at a gas station on Memorial Avenue in Lynchburg. When

Swisher returned from paying for fuel, Duff informed him that a

blue sedan had pulled into the parking lot and that he thought

that Tracy Lewayne Moss was the driver.

During Moss' hearing on his motion to suppress, Swisher

testified that he walked up to Moss, identified himself, and

asked permission to search both Moss and the car for drugs.

Swisher stated that Moss "advised me he did not mind if I did

so." While Swisher was searching Moss' person, Holyfield

noticed a "brown, hand-rolled marijuana cigarette laying in the

ashtray in plain view between the driver's seat and the front

passenger seat of the vehicle." Gerard Haythe was sitting in

the passenger seat. Swisher testified that "[a]t that point Mr.

Moss and Mr. Haythe were not free to leave."

Duff also testified at the hearing on Moss' motion to

suppress, stating that he asked and received permission from

Haythe to search his person. All three investigators searched

Haythe in the bathroom of the gas station and recovered crack

cocaine from his buttocks. Swisher testified that during the

search of Haythe, Moss was walking around "back and forth in

front of the store on the sidewalk." After searching Haythe,

Swisher began to issue Moss a uniform summons for possession of

marijuana. However, Swisher realized that Moss was a juvenile

and decided not to release him on a summons. At this point,

Duff and Holyfield took Moss to the restroom and conducted a

- 2 -

strip search. Swisher stated that they strip searched Moss

because he knew from "training and experience that that's an

area the drug dealers often conceal their narcotics because they

believe the police will not search that area" and that after

finding drugs in that area on Haythe, it was "possible, if not

probable that Mr. Moss had narcotics in his buttocks area."

Duff and Holyfield found what they suspected to be crack cocaine

in Moss' buttocks.

At the hearing on Moss' motion to suppress, Moss argued

that he was not under arrest, that the officers had no probable

cause to arrest him for possession of marijuana, and that even

if they possessed probable cause, the search of his buttocks

exceeded the constitutionally permitted scope of a search

incident to arrest. The trial judge disagreed, stating, "I

don't think that consent was ever revoked . . . . But anyway

. . . I'm going to find this fact: That the police had probable

cause to arrest your client [Moss] for possession of marijuana;

and they were in the process of doing so when they decided to

strip search him."

After being arrested for possession of cocaine and

marijuana, Moss was taken to the Lynchburg Police Department.

At trial, Duff testified that Moss was in the interview room

when he asked to use the restroom. Instead of coming back into

the interview room when he was finished, Moss ran out of the

building. Moss was eventually tackled on the sidewalk outside

- 3 -

the police station. In a bench trial, Moss was convicted of

possession of cocaine and escape from custody.

II. MOTION TO SUPPRESS

On appeal, it is the defendant's burden to show "that the

denial of [the] motion to suppress constitute[d] reversible

error." Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437

S.E.2d 232, 233 (1993). "Ultimate questions of reasonable

suspicion and probable cause to make a warrantless search

involve questions of both law and fact and are reviewed de novo

on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc) (citation omitted).

It is beyond peradventure that "probable cause" is a

flexible, common sense standard dealing not with technical

analysis but rather with practical considerations in the context

of the totality of the circumstances. See Texas v. Brown, 460

U.S. 730, 742 (1983); Taylor v. Commonwealth, 222 Va. 816, 820,

284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906 (1982).

Additionally, trained and experienced police officers "may be

able to perceive and articulate meaning in given conduct which

would be wholly innocent to the untrained observer." Richards

v. Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 286, 270-71

(1989).

Moss gave Swisher permission to search his person and the

vehicle. While Swisher was engaged in a conversation with Moss,

Holyfield found what he believed to be a marijuana cigarette or

- 4 -

"Philly blunt" in the open ashtray in the dashboard between the

driver and the passenger seats. From his training and

experience, the officer stated that the packaging was consistent

with a type of hand-rolled marijuana cigarette. At that point,

the officers had probable cause to arrest Moss and Haythe for

possession of marijuana. See Powell v. Commonwealth, 27 Va.

App. 173, 177-78, 497 S.E.2d 899, 901-04 (1998); DePriest v.

Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 540, 543-44

(1987).

Upon determining that Moss was a juvenile, the officers

took him into custody pursuant to Code § 16.1-246. A lawful

custodial arrest authorizes a full search of the person. See

United States v. Robinson, 414 U.S. 218, 234-35 (1973); but see

Knowles v. Iowa, 119 S. Ct. 484 (1998). Additionally, Moss had

previously given consent to a search of his person. But his

consent to search his person and his lawful arrest would not,

without more, justify a strip search or a body cavity search.

[S]trip searches require special

justification since they are peculiarly

intrusive. . . . In each case we must

balance the need for the particular search

against the invasion of personal rights that

the search entails. Courts must consider

the scope of the particular intrusion, the

manner in which it is conducted, the

justification for initiating it, and the

place in which it is conducted.

Taylor v. Commonwealth, 28 Va. App. 638, 642, 507 S.E.2d 661,

663 (1998). Additionally, such intrusive searches without a

- 5 -

warrant may not be conducted on the "mere chance that desired

evidence might be obtained." Schmerber v. California, 284 U.S.

757, 769-70 (1966). We have previously stated:

a warrantless search involving a bodily

intrusion, even though conducted incident to

a lawful arrest, violates the Fourth

Amendment unless (1) the police have a

"clear indication" that evidence is located

within a suspect's body and (2) the police

face exigent circumstances. In addition,

because the Fourth Amendment "constrain[s]

. . . against intrusions . . . which are

made in an improper manner," the means and

procedures employed by the authorities to

conduct a search involving an intrusion into

the body must also satisfy relevant Fourth

Amendment standards of reasonableness.

Commonwealth v. Gilmore, 27 Va. App. 320, 330-31, 498 S.E.2d

464, 469 (1998) (citations omitted).

There is no evidence that Moss' consent to a "search of his

person" extended to a strip search or a body cavity search. The

Commonwealth's reliance upon consent for this intrusion is

misplaced. Additionally, the Commonwealth does not satisfy the

additional requirements for such an intrusion without consent or

without a warrant. We do not address issues concerning the

place and manner of the search because we find that there was

not a "clear indication" that drugs were located in Moss'

buttocks, and we find no exigent circumstances justifying a

strip search or body cavity search without a warrant.

Officer Swisher testified that certain narcotics dealers

hide contraband in areas they do not believe the police will

- 6 -

search, such as the buttocks. Here, there was insufficient

evidence for a "clear indication" that drugs were located in

Moss' buttocks. His friend, Haythe, had crack cocaine in his

buttocks; however, the habits of his friend cannot be imputed to

Moss. The presence of $55 in cash, a pager, and probable cause

to arrest for simple possession of marijuana is similarly

insufficient to justify the conclusion that Moss was hiding

drugs in his buttocks. These circumstances are precisely what

the Court in Schmerber was concerned about when it stated that

intrusive searches without a warrant may not be conducted on the

"mere chance that desired evidence might be obtained."

Schmerber, 384 U.S. at 770.

Additionally, even if there had been a "clear indication"

that Moss possessed drugs within his body, the officers did not

obtain a warrant prior to searching Moss. "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, 2

(1994) (citation omitted). An "exception to the warrant

requirement exists when there are exigencies in a situation

which make such an exception imperative." Id. at 373, 444

S.E.2d at 2 (citations omitted).

In Schmerber, the Court held that the considerations that

justify the authority to search incident to a lawful arrest

- the need to disarm the suspect and to prevent the destruction

- 7 -

of evidence under the suspect's direct control - "have little

applicability with respect to searches involving intrusions

beyond the body's surface." Schmerber, 384 U.S. at 769. We do

not exclude the possibility that in a particular case the risk

of destruction of evidence, imminent medical harm to the

suspect, or secretion of a weapon may provide exigent

circumstances for a search involving intrusion beyond the body's

surface. Even if there was a "clear indication" that contraband

was located in Moss' body, there were no exigencies present in

this case justifying a warrantless search. Nothing in the

record suggests that Moss had a concealed weapon, nor was there

a risk of destruction of evidence. No medical emergency

existed. Even though it was conducted incident to a lawful

arrest, the search of Moss involved bodily intrusion requiring

additional exigencies to be justified without a warrant.

We find that the strip search of Moss was impermissible and

that the trial court erred in refusing to suppress the evidence

obtained from the search. We find it unnecessary to address

Moss' contention that the strip search violated Code

§ 19.2-59.1(A).

III. ESCAPE FROM CUSTODY

At the time Moss absconded from the police station he was

in lawful custody. Moss was under arrest for possession of

marijuana and cocaine. Because Moss was a juvenile, he was

taken into custody pursuant to Code § 16.1-248.1. The evidence

- 8 -

clearly demonstrates that Moss submitted to the authority of the

police, and the officer's accommodation of his request to use

toilet facilities does not change his status. See Cavell v.

Commonwealth, 28 Va. App. 484, 506 S.E.2d 552 (1998).

IV. CONCLUSION

For the reasons stated above, we affirm Moss' conviction

for escape and reverse his conviction for possession of cocaine

and remand for further proceedings if the Commonwealth be so

advised.

Affirmed in part,

reversed in part

and remanded.

- 9 -