COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Humphreys and Senior Judge Overton 

Argued at Chesapeake, Virginia 

WILLIE LOUIS JOHNSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2617-99-1 JUDGE NELSON T. OVERTON 

 AUGUST 15, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND COUNTY OF JAMES CITY 

Samuel Taylor Powell, III, Judge 

Deborah M. Wagner (McDermott & Roe, on 

brief), for appellant. 

Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Willie Louis Johnson, appellant, appeals his conviction for 

possession of cocaine. On appeal, he contends the trial court 

erroneously denied his motion to suppress "evidence seized by 

police pursuant to an unauthorized strip search" in violation of 

"his Fourth Amendment rights." We disagree, and affirm the 

conviction. 

I. BACKGROUND 

 "In reviewing a trial court's denial of a motion to suppress, 

'the burden is upon the defendant to show that the ruling, when 

the evidence is considered most favorably to the Commonwealth, 
constituted reversible error.'" McGee v. Commonwealth, 25 Va. 

App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation 

omitted). "We review de novo the trial court's application of 

defined legal standards such as probable cause and reasonable 

suspicion to the particular facts of the case." Hayes v. 

Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999) 

(citation omitted). "In performing such analysis, we are bound by 

the trial court's findings of historical fact unless 'plainly 

wrong' or without evidence to support them and we give due weight 

to the inferences drawn from those facts by resident judges and 

local law enforcement officers." McGee, 25 Va. App. at 198, 487 

S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 699 

(1996)). 

 On June 14, 1999, the trial court heard evidence on 

appellant's suppression motion. Investigator Peterson testified 

that he executed a search warrant at 126 Jackson Street on January 

24, 1999. Upon entry, police officers located appellant asleep on 

a sofa and handcuffed him. Appellant "was wearing only a pair of 

pants." Peterson "took his pants down." "In his pants [Peterson] 

found a metal smoking device, a small metal smoking device." 

Appellant wore no underwear, and the object was located in the 

"gap between the fold of the leg, like the split, a little 

section, when you pulled [his pants] down you could see it sitting 

right there." Peterson explained that he took appellant's pants 

down because he was "[l]ooking for contraband and hidden smoking 

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devices and any drugs." According to Peterson, persons involved 

with narcotics "[c]ommonly put the smoking devices in their pants 

or belt area or in the crack of the buttock . . . for concealment 

purposes." At the time of the search there were no females 

present and appellant's pants were pulled down "[t]o his knee 

area" for "a matter of seconds." 

 Although appellant was not specifically named in the search 

warrant, the search warrant authorized the search of all persons 

present at the location and was directed at locating cocaine, 

currency, drug paraphernalia and firearms. Peterson indicated 

that the search included all persons upon the property. 

 In argument to the trial court, appellant contended that the 

strip search was unreasonable and, therefore, unconstitutional. 

Appellant also asserted that Peterson "was in no fear for his 

safety." However, appellant conceded that he was "in a home and 

under a search warrant." 

 The trial court ruled that "[i]t's not a strip search," 

because the officer "pulled his pants down" and did not take "all 

of his clothes off." Noting the brevity and minimal intrusiveness 

of the search, and the officer's testimony that people involved in 

drugs often store drugs "in their clothes," the trial court found 

the search reasonable "under the circumstances." 

 Appellant never attacked the validity of the warrant 

authorizing the search of all pesons present or the affidavit(s) 

upon which the magistrate relied to issue it. Moreover, the 

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record contains neither the search warrant nor the supporting 

affidavit(s). 

II. DISCUSSION 

 The Fourth Amendment to the United States Constitution 

guarantees "[t]he right of the people to be secure in their 

persons, house, papers, and effects, against unreasonable 

searches and seizures." U.S. Const. amend. IV; see also Va. 

Const. art. I, § 8. 

A. Burden of Proof 

 In Lebedun v. Commonwealth, 27 Va. App. 697, 710-11, 501 

S.E.2d 427, 433-34 (1998), we addressed which party has the 

burden of proof when a defendant moves to suppress evidence that 

was seized pursuant to a search warrant. We held that 

the government bears the burden to justify a 

warrantless search as an exception to the 

warrant requirement. However, a presumption 

of validity attaches when a search is 

conducted pursuant to a warrant issued by a 

neutral and detached magistrate or judicial 

officer. Therefore, where the police 

conduct a search pursuant to a judicially 

sanctioned warrant, the defendant must rebut 

the presumption of validity by proving that 

the warrant is illegal or invalid. 

Id. at 711, 501 S.E.2d at 434 (citations omitted). Thus, 

appellant bears the burden of establishing that the search was 

beyond the scope of the warrant and unreasonable. See id.; see

also United States v. Taylor, 882 F.2d 1018, 1032-33 (6th Cir. 

1989) (holding that motion to suppress properly denied where 

defendant "failed to carry his burden of demonstrating that the 

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[evidence] was in fact obtained by a search beyond the scope of 

the warrant"). 

B. Analysis 

 We are faced with the question whether removing the outer 

pants of the target of a search warrant was an unreasonable 

search. 

 The scope of a lawful search is "defined by the object of 

the search and the places in which there is probable cause to 

believe that it may be found." United States v. Ross, 456 U.S. 

798, 824 (1982). In order to determine whether a search is 

reasonable, the individual's Fourth Amendment interest must be 

weighed against the necessity for a particular type of search. 

See Bell v. Wolfish, 441 U.S. 520, 559 (1979) (approving visual 

strip-searches of pretrial detainees even though there was no 

probable cause to believe the person possessed contraband or 

weapons). In Wolfish, the Supreme Court explained the procedure 

for determining the reasonableness of a search: 

In each case it requires a balancing of 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. 

Id.

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 Here, the search warrant authorized the search of all 

persons present. We have approved such warrants when adequately 

supported by information provided to the issuing magistrate. 

See Morton v. Commonwealth, 16 Va. App. 946, 950, 434 S.E.2d 

890, 893 (1993) (following examination of factual allegations 

contained in the affidavits, holding that "probable cause 

existed to search all of the persons found inside the apartment 

when the warrant was executed"). Because the record does not 

contain a copy of the search warrant or the accompanying 

affidavit(s), and because appellant failed to contest the 

validity of the warrant, we are constrained to find that the 

warrant was valid and based upon adequate probable cause to 

search all persons present. Moreover, we are unable to 

determine what information the police possessed and presented to 

the issuing magistrate. 

 Absent the warrant or affidavit(s) and applying the test 

put forth in Wolfish, we find that appellant has failed to 

demonstrate that the search was beyond the scope of the warrant 

or was unreasonable. Although the scope of the search involved 

taking appellant's pants down to his knees, the search was 

brief, lasting seconds, and it did not require removing all of 

appellant's clothing. Upon these facts, we find the search 

minimally intrusive. The officers could not have been aware 

that appellant was not wearing underwear under his blue jeans. 

The objects of the warrant and the search included illegal drugs 

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and paraphernalia, things that are easily concealed. 

Investigator Peterson was aware from past experience that such 

items are often concealed inside the inner waistband of a 

suspect's trousers. Finally, the search was conducted inside 

the house and a limited number of officers were present, none of 

whom were females. 

CONCLUSION 

 Absent a copy of the search warrant or affidavit(s) so we 

can review the basis for issuance of the search warrant, 

appellant has failed to establish that the search was beyond the 

scope of the warrant or that the search was unreasonable. 

Because the search was reasonable and based on a valid warrant 

supported by probable cause, we affirm the trial court. 

Affirmed.

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Coleman, J., dissenting. 

 The majority holds that the police officer's "removing the 

outer pants of the target of a search warrant" was reasonable 

under the Fourth Amendment because the search was based on an 

"all persons present" search warrant and because the search was 

"minimally intrusive" under the circumstances. I disagree with 

the majority that the search was reasonable under the facts of 

this case. In my opinion, the search was not reasonable because 

neither the search warrant nor the circumstances preceding the 

search provided probable cause to strip search the appellant. 

The search warrant, which specifically named two people to be 

searched at the residence, did not mention Johnson; it specified 

the residence to be searched, two named individuals, and "all 

persons present" at the residence. The circumstances 

surrounding the appellant when the James City County swat team 

was executing the search warrant provided no individualized 

probable cause or reason to suspect that the appellant possessed 

drugs, weapons, or other contraband, much less a "clear 

indication" that the appellant might be secreting drugs on his 

person in a manner to justify strip searching him. Accordingly, 

I dissent from the majority's holding. 

 The trial court held that the search of appellant was "not 

a strip search." The Attorney General, on brief and at oral 

argument, defends the trial court's ruling that the search of 

appellant was not a strip search. Now, the majority carefully 
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avoids characterizing the search of appellant as a strip search 

and concludes that the search was "minimally intrusive." By 

doing so, the majority disregards our prior holdings which 

require a "clear indication" that the suspect has secreted the 

contraband at a location where a strip search is necessary to 

find it. The trial court and majority concluded that the search 

was not a strip search because "it did not require removing all 

of appellant's clothing." Here, the officers lowered the 

appellant's blue jeans to his knees exposing his genitalia and 

buttocks. In my view, that constitutes a strip search and, 

thus, our holdings in Moss v. Commonwealth, 30 Va. App. 219, 516 

S.E.2d 246 (1999), Taylor v. Commonwealth, 28 Va. App. 638, 507 

S.E.2d 661 (1998), and Commonwealth v. Gilmore, 27 Va. App. 320, 

498 S.E.2d 464 (1998), although involving warrantless searches, 

are applicable and controlling. 

[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, 28 Va. App. at 642, 507 S.E.2d at 663-64 (internal 

quotations and citations omitted). We further explained the 

"special justification" requirement for a strip search 

enunciated in Taylor, when we held in Moss that "clear 
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indication" must exist that the evidence or contraband is 

secreted on the person to justify a strip search. See Moss, 

30 Va. App. at 224-25, 516 S.E.2d at 249 (adopting the "clear 

indication" requirement for body cavity searches which we 

announced in Gilmore). As we stated in Moss, for a strip search 

to be lawful under the Fourth Amendment, the officers must have 

a "clear indication" that evidence is at a location on the 

suspect's body that justifies a strip search and "'the means and 

procedures employed by the authorities to conduct a search 

involving an intrusion into the body [or strip search] must also 

satisfy relevant Fourth Amendment standards of reasonableness.'" 

Id. (quoting Gilmore, 27 Va. App. at 330-31, 498 S.E.2d at 469). 

Strip searches are demeaning and may be dehumanizing. Because 

no "clear indication" existed in Moss to believe that the 

defendant had secreted drugs on his body, we held that the strip 

search was unjustified and impermissible. We did not reach 

whether it was conducted in a reasonable manner under the 

circumstances. 

 Here, Johnson was asleep on a couch when the officers 

entered the residence to execute the search warrant. He was not 

named in the search warrant as a person to be searched. The 

officers did not observe any furtive movements or have any 

specific reason to believe that Johnson possessed drugs, much 

less that he was secreting them in a place that would justify a 

strip search. Johnson did not resist, made no attempt to flee, 
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and made no statement justifying a belief that he possessed 

drugs. The officers did not frisk Johnson, instead they 

immediately lowered his pants. As the majority notes, the only 

reason given by the officer to justify the strip search was that 

"from past experience . . . such items are often concealed 

inside the inner waistband of a suspect's trousers." If that 

reason provides justification for a strip search, then every 

warranted search or every warrantless search in which probable 

cause of possession existed would justify a strip or body cavity 

search.1 "Searches may not be conducted on the '"mere chance 

that desired evidence might be obtained."'" Taylor, 28 Va. App. 

at 643, 507 S.E.2d at 664 (citations omitted). 

 The trial judge erred, in my opinion, in not holding that 

the search was a strip search and that the search was 

unreasonable and in violation of the Fourth Amendment. For 

these reasons, I would reverse the conviction and dismiss the 

indictment. 

 1

 The majority contends that appellant never attacked the 

validity of the "all persons present search warrant." To the 

contrary, the appellant, citing Ybarra v. Illinois, 444 U.S. 85, 

88 (1979), makes an even broader challenge to the authority of 

the officers to search him at all where there is no 

particularized probable cause to believe that he possessed drugs 

or was engaged in drug activity. While I would also hold that 

the "all persons present" warrant did not provide probable cause 

to search Johnson when they were executing the warrant without 

some particularized reason to suspect that he possessed drugs, 

the more compelling issue is the unreasonableness of the strip 

search.