COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 OPINION BY 

v. Record No. 2700-97-2 JUDGE LARRY G. ELDER 

 MAY 6, 1998 

DENISE PATRICE GILMORE 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

briefs), for appellant. 

 Tonja M. Roberts for appellee. 

 The Commonwealth appeals a pretrial order granting the 

motion of Denise Patrice Gilmore (defendant) to suppress evidence 

obtained during a search incident to her arrest. The 

Commonwealth contends the trial court erred when it concluded 

that the warrantless search of defendant's vaginal cavity was 

unreasonable under the Fourth Amendment. For the reasons that 

follow, we affirm the order suppressing the evidence. 

 I. 

 FACTS 

 On August 1, 1996, Investigators Richard Pulliam and Howard 

Powell of the Halifax County Sheriff's Office were working with 

Christopher New, an undercover informant, to arrange controlled 

buys of crack cocaine from suspected dealers. Sometime prior to 

4:00 p.m., New contacted William Pleasants, who agreed to sell 

crack cocaine to New at New's home. Prior to Pleasants' arrival, 
 2 

Investigator Pulliam searched New and gave him four hundred 

dollars in cash. The investigator had previously recorded the 

serial numbers of the cash. 

 A short while later, Pleasants drove his automobile into 

New's driveway, and New exited his house to meet him. 

Investigator Powell observed New approach the driver-side of the 

vehicle, return to the corner of the house, and again approach 

the driver-side of the vehicle. After New left the driver-side 

of the vehicle a second time, Pleasants backed his vehicle out of 

New's driveway and drove away. 

 New re-entered the house and gave Investigator Pulliam 1.405 

grams of crack cocaine. Investigators Pulliam and Powell then 

left the house and pursued Pleasants' automobile with the "blue 

lights" of their vehicle flashing. As the investigators neared 

Pleasants' automobile, it accelerated and continued onto portions 

of several roads. As Pleasants traveled over a bridge and 

beneath an underpass, the investigators "saw a brown object come 

out of the passenger-side window" of Pleasants' automobile. 

Later, Pleasants turned into a parking lot at a restaurant and 

stopped his vehicle. 

 The investigators pulled in next to Pleasants' vehicle and 

approached on foot. They saw Pleasants in the driver-seat and 

defendant in the passenger-seat. The investigators immediately 

started searching for the cash they had given to New to purchase 

cocaine from Pleasants. The investigators searched the interior 
 3 

of the vehicle, Pleasants' person, and eventually had Pleasants' 

vehicle "taken . . . apart." A team from the sheriff's office, 

assisted by a dog, searched the area where the investigators had 

seen the brown object jettisoned from Pleasants' automobile. No 

object was found. Although the investigators found a small 

quantity of marijuana in the ashtray of Pleasants' vehicle, none 

of their searches produced the missing four hundred dollars. 

 Investigator Pulliam contacted Deputy Jackie Shields and 

asked her to proceed to the scene of the stop. When Deputy 

Shields arrived, Investigator Pulliam informed her in detail 

about the unsuccessful efforts to locate the missing money and 

asked her to search defendant. After some discussion about 

searching defendant in the restaurant, Deputy Shields transported 

defendant to the sheriff's department to conduct the search. She 

took defendant to an "interrogation room" and told her to remove 

all of her clothing in preparation for a "strip search." After a 

search of defendant's discarded clothing and hair failed to 

reveal any money, Deputy Shields asked defendant if she had the 

money "on her body." Defendant, who at this point was naked, 

told the deputy that she "didn't have anything." Deputy Shields 

replied that she was "going to have to be sure." 

 Defendant then informed Deputy Shields that she was 

currently menstruating and asked to go to the bathroom "to remove 

her . . . personal protection." Deputy Shields refused 

defendant's request, and defendant "squatted down" in front of 
 4 

Deputy Shields and "proceeded to remove her tampon." Deputy 

Shields then told defendant to "squat again" and cough three 

times. While defendant was squatting, Deputy Shields attempted 

to visually examine the exterior of defendant's vagina. She then 

told defendant to stand up against the wall. After putting a 

glove on her hand, Deputy Shields "stuck her hand inside" 

defendant's vagina and "removed the money from out of there." 

 Deputy Shields testified that she was not a 

"medically-trained person." She was alone with defendant during 

the entirety of the search. No search warrant was obtained prior 

to the search of defendant's vaginal cavity. 

 The serial numbers on the money retrieved from defendant's 

vagina matched the numbers on the money the investigators had 

given to New to purchase crack cocaine from Pleasants. A short 

while later, defendant waived her Miranda rights and made an 

incriminating statement to Investigator Pulliam. 

 A grand jury indicted defendant for distributing cocaine in 

violation of Code § 18.2-248 and possessing marijuana in 

violation of Code § 18.2-250.1. Prior to trial, defendant moved 

to suppress the money obtained during the search of her vaginal 

cavity and her subsequent statement to Investigator Pulliam on 

the ground that this evidence was obtained in violation of the 

Fourth Amendment. Following a hearing, the trial court granted 

defendant's motion to suppress the money and her statement. 

 The trial court noted that defendant "ha[d] not raised any 
 5 

 

question about the validity of the arrest or . . . being held in 

the custody of the sheriff's office." It stated that "the 

question . . . is whether or not this was a reasonable search 

incident to an arrest." The trial court then concluded that 

Deputy Shields' search of "[d]efendant's body cavity" was "an 

unreasonable search and seizure in violation of the Fourth and 

Fourteenth Amendments." It also concluded that to conduct a 

search of defendant's body cavity "without medically-trained 

personnel present" was constitutionally "unreasonable." 

 II. 

 WARRANTLESS SEARCH OF DEFENDANT'S VAGINAL CAVITY 

 The Commonwealth contends the trial court erred when it 

concluded that the search of defendant's vaginal cavity was 

unreasonable under the Fourth Amendment. The Commonwealth argues 

that the search of defendant's vaginal cavity was within the 

scope of Deputy Shields' authority to search defendant incident 

to her arrest and that the officers involved had reason to 

believe that the missing four hundred dollars was in defendant's 

vagina. In the alternative, the Commonwealth argues that the 

search of defendant's vaginal cavity was lawful under the Fourth 

Amendment because the officers involved had a clear indication 

that the cash would be found there and they were faced with 

exigent circumstances.1

 We disagree. 

 1The Commonwealth also argues that the trial court 

erroneously granted defendant's motion to suppress on the ground 

that the search of her vagina violated Code § 19.2-59.1(C). The 

relevant portion of Code § 19.2-59.1(C) states that, when a 
 6 

 A. 

 This case raises the issue whether the scope of a police 

officer's authority under the Fourth Amendment to conduct a 

"full" warrantless search of an arrestee's person incident to a 

lawful arrest includes the authority to search the arrestee's 

body cavities. We hold that it does not. 

 The Fourth Amendment states that "[t]he right of the people 

to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated 

. . . ." U.S. Const. amend. IV (emphasis added). Subject to a 

few specifically established exceptions, "searches conducted 

outside the judicial process, without prior approval by judge or 

magistrate, are per se unreasonable under the Fourth Amendment." 

Katz v. United States, 389 U.S. 347, 357 (1967) (citations 

omitted). One of the established exceptions to the Fourth 

Amendment's warrant requirement is for a "search incident to a 

lawful arrest." United States v. Robinson, 414 U.S. 218, 224, 

226 (1973) (also holding that searches incident to arrest "meet 

 

suspect is subject to custodial arrest, "a search of any body 

cavity, other than the mouth, shall be conducted either by or 

under the supervision of medically trained personnel." The 

Commonwealth argues that the trial court erred because the 

suppression of evidence is not available as a remedy when 

evidence is obtained in violation of this statute. 

 However, both the trial court's order and ruling from the 

bench indicate that its decision to grant defendant's motion to 

suppress was based solely on constitutional grounds. Because the 

trial court did not base its decision on statutory grounds, we 

need not address the Commonwealth's argument that suppression is 

not an available remedy when evidence is obtained in violation of 

Code § 19.2-59.1(C). 
 7 

the Fourth Amendment's requirement of reasonableness"); see also

Chimel v. California, 395 U.S. 752, 762-63 (1969). 

 When delineating the permissible scope of a warrantless 

search incident to arrest, the United States Supreme Court has 

stated that a lawful arrest of a suspect authorizes the police to 

conduct "a full search of the [arrestee's] person." Robinson, 

414 U.S. at 235. In addition, the police may search the area 

within the arrestee's immediate control, see Chimel, 359 U.S. at 

763, and seize his or her personal effects that are evidence of 

the crime. See United States v. Edwards, 415 U.S. 800, 804-05 

(1974).2 Furthermore, a police officer's decision to conduct a 

search incident to arrest is largely free from both prior or 

subsequent judicial scrutiny. The Supreme Court stated in 

Robinson: 

 A police officer's determination as to how 

and where to search the person of a suspect 

whom he has arrested is necessarily a quick 

ad hoc judgment which the Fourth Amendment 

does not require to be broken down in each 

instance into an analysis of each step in the 

search. The authority to search the person 

incident to a lawful custodial arrest, while 

based upon the need to disarm and to discover 

evidence, does not depend on what a court may 

later decide was the probability in a 

particular arrest situation that weapons or 

 

 2See also Illinois v. Lafayette, 462 U.S. 640, 648 (1983) 

(holding that the police may search any container or article in 

an arrestee's possession "as part of the routine procedure 

incident to incarcerating an arrested person"); New York v. 

Belton, 453 U.S. 454, 460 (1981) (holding that, following the 

lawful search of an occupant of an automobile, the police may 

conduct a contemporaneous search of the automobile's passenger 

compartment and the contents of any containers found in the 

passenger compartment). 
 8 

evidence would in fact be found upon the 

person of the suspect. 

Robinson, 414 U.S. at 235. 

 However, the authority of the police under the Fourth 

Amendment to conduct a "full search" of an arrestee's person 

without a warrant is only skin deep. The Supreme Court has 

stated that the scope of warrantless searches incident to arrest 

is not free from all constitutional restraint. See Edwards, 415 

U.S. at 808 n.9. It has also 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 

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

applicability with respect to searches involving intrusions 

beyond the body's surface." Schmerber v. California, 384 U.S. 

757, 769 (1966). 

 The interests in human dignity and privacy 

which the Fourth Amendment protects forbid 

any such intrusions on the mere chance that 

desired evidence might be obtained. In the 

absence of a clear indication that in fact 

such evidence will be found, these 

fundamental human interests require law 

officers to suffer the risk that such 

evidence may disappear unless there is an 

immediate search. 

Id. at 769-70. A search of a body cavity is considered an 

"intrusion" into the body under Schmerber that falls outside the 

permissible scope of a search incident to arrest.3

 

 3See United States v. Oyekan, 786 F.2d 832, 839 n.13 (8th 

Cir. 1986) (stating that "a body cavity search must be conducted 

consistently with the Schmerber factors"); Giles v. Ackerman, 746 

F.2d 614, 616 (9th Cir. 1984) (stating that Schmerber "implies 
 9 

 The warrant requirement re-enters the picture when the 

police seek to search for evidence inside a suspect's body 

incident to arrest. "[T]he police must obtain a warrant when 

they intend to seize an object outside the scope of a valid 

search incident to arrest . . . ." Coolidge v. New Hampshire, 

403 U.S. 443, 484 (1971). 

 Search warrants are ordinarily required for 

searches of dwellings, and absent an 

emergency, no less could be required where 

intrusions into the human body are concerned. 

 The requirement that a warrant be obtained 

is a requirement that inferences to support 

the search "be drawn by a neutral and 

detached magistrate instead of being judged 

by the officer engaged in the often 

competitive enterprise of ferreting out 

crime." The importance of informed, detached 

and deliberate determinations of the issue 

whether or not to invade another's body in 

search of evidence of guilt is indisputable 

and great. 

 

that intrusions into the arrestee's body, including body cavity 

searches . . . are not authorized by arrest alone"); see also

Swain v. Spinney, 117 F.3d 1, 6 (1st Cir. 1997) (stating that 

"Robinson did not hold that all possible searches of an 

arrestee's body are automatically permissible as a search 

incident to arrest"); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 

(9th Cir. 1991) (stating that "Robinson simply did not authorize" 

arresting officers to conduct a strip and visual body cavity 

search); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271 

(7th Cir. 1983) (stating that "the Robinson court simply did not 

contemplate the significantly greater intrusions that occur[]" in 

a visual search of an arrestee's anal and vaginal cavities). 

 Several state courts have similarly concluded that the broad 

authority of the police to search an arrestee's person incident 

to arrest is limited by the principles applicable to bodily 

intrusions set forth in Schmerber. See State v. Clark, 654 P.2d 

355, 361-62 (Haw. 1982); State v. Fontenot, 383 So.2d 365, 367 

(La. 1980); cf. State v. Milligan, 748 P.2d 130, 135 (Or. 1988); 

People v. Williams, 510 N.E.2d 445, 447 (Ill. App. Ct. 1987); 

State v. Baker, 502 A.2d 489, 492 (Me. 1985). 
 10 

Schmerber, 384 U.S. at 770 (citations omitted). 

 Based on these principles, we hold that 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.4

See id. at 770-71; accord Archer v. Commonwealth, 20 Va. App. 

87, 91, 455 S.E.2d 280, 282 (1995) (citing Schmerber, 384 U.S. at 

770). 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." 

Schmerber, 384 U.S. at 768; see also Winston v. Lee, 470 U.S. 

753, 759-61 (1985); Edwards, 415 U.S. at 808 n.9; Archer, 20 Va. 

App. at 91, 455 S.E.2d at 282.5

 

 4"Exigent circumstances" in these situations include an 

officer's reasonable belief under the circumstances presented 

that the delay necessary to obtain a warrant will result in the 

destruction of evidence. Schmerber, 384 U.S. at 770. 

 5We disagree with the Commonwealth that this case should be 

analyzed according to the framework applied by the Supreme Court 

in Bell v. Wolfish, 441 U.S. 520, 558-60 (1979). In Wolfish, the 

Supreme Court held that the Fourth Amendment was not violated by 

the policy of a correctional facility requiring visual body 

cavity searches of pretrial detainees following every contact 

visit with a person from outside the institution. See id. at 

558. The Supreme Court concluded that the visual cavity searches 

after contact visits met the "test of reasonableness" under the 

Fourth Amendment after balancing "the significant and legitimate 

security interests of the [correctional facility] against the 

privacy interests of the inmates." Id. at 599-60. 

 The analytical framework set forth in Wolfish is 
 11 

 B. 

 At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant's Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the 

evidence in the light most favorable to the prevailing party, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). We review the trial court's 

findings of historical fact only for "clear error," but we review 

de novo the trial court's application of defined legal standards 

to the particular facts of a case. See Shears v. Commonwealth, 

23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also

Ornelas v. United States, 517 U.S. 690, 699 (1996). 

 

inapplicable to this case because the searches in Wolfish were 

initiated under markedly different circumstances. Wolfish

addressed the Fourth Amendment rights of pretrial detainees, 

"persons who have been charged with a crime but who have not yet 

been tried on the charge." Id. at 523. The Supreme Court's 

analysis in Wolfish was based in part on the premise that "[a] 

detainee simply does not possess the full range of 

[constitutional] freedom of an unincarcerated individual." Id.

at 546. Because a person who is searched incident to arrest is 

not yet incarcerated, he or she has greater constitutional 

protection than a pretrial detainee. As such, this case is 

controlled by the principles set forth in Schmerber rather than 

Wolfish: in order to conduct a lawful body cavity search of an 

arrestee, the police must (1) have a "clear indication" that 

evidence will be found and (2) either obtain a search warrant or 

face exigent circumstances. 
 12 

 Turning to the facts of this case, we hold that the 

warrantless search of defendant's vaginal cavity violated the 

Fourth Amendment. The circumstances apparent to the officers at 

the time of the search did not "clearly indicate" that the 

missing cash would be found inside defendant's vagina. Moreover, 

even assuming the existence of a clear indication, the officers 

involved were not faced with exigent circumstances that justified 

their decision to proceed with the search in the absence of a 

warrant. 

 At the hearing on her motion to dismiss, the evidence viewed 

in the light most favorable to defendant indicated that Deputy 

Shields "stuck her hand inside" of defendant's vagina causing 

defendant to experience discomfort. The deputy felt and removed 

the cash. Because the deputy's search for the missing money 

involved an intrusion into defendant's vaginal cavity, it 

exceeded the scope of the deputy's authority to search 

defendant's person incident to arrest. Furthermore, the record 

indicates that the officers involved did not obtain a warrant 

prior to the search in accordance with Schmerber. Thus, at the 

hearing on defendant's motion, the Commonwealth had the burden of 

proving that the decision to subject defendant to a vaginal 

cavity search was justified by a "clear indication" and exigent 

circumstances. See Schmerber, 384 U.S. at 770; Archer, 20 Va. 

App. at 91, 455 S.E.2d at 282. 

 The record in this case does not establish that the officers 
 13 

had a "clear indication" the cash they had given to New to 

purchase cocaine from Pleasants would be found inside defendant's 

vagina. The officers testified that, while they were pursuing 

the vehicle driven by Pleasants, they saw "a brown object come 

out of the passenger-side window." A dog-assisted search of the 

area failed to locate the object, and the investigators could not 

confirm that the "brown object" did not contain the missing 

money. In addition, the investigators had little information 

suggesting that defendant participated in the transaction between 

New and Pleasants.6

 Obviously, Pleasants could have discarded 

the "brown object" by throwing it through the passenger-side 

window to the side of the roadway. The officers were not aware 

that defendant was in the vehicle with Pleasants during the 

transaction at New's residence, and they did not learn of her 

presence in Pleasants' vehicle until after it was stopped. Based 

upon the circumstances apparent to the investigators in this 

case, we cannot say they had a "clear indication" that the 

missing money would be found in defendant's vaginal cavity. 

Although the facts known to the investigators may have supported 

a hunch that defendant was concealing the missing cash inside her 

vagina, the Fourth Amendment requires the police to have a more 

apparent basis before subjecting an arrestee to the degrading and 

humiliating experience of a body cavity search. Cf. Schmerber, 

 

 6In her motion to suppress, defendant did not challenge the 

legality of her arrest. As such, we do not address this issue on 

appeal. 
 14 

384 U.S. at 769-70 (stating that the Fourth Amendment forbids 

intrusions into the body "on the mere chance that desired 

evidence might be obtained"). 

 We also conclude that the failure of the investigators to 

obtain a search warrant prior to the search of defendant's 

vaginal cavity was not justified by exigent circumstances. The 

evidence sought by the officers was four hundred dollars in 

United States currency. No evidence in the record indicates that 

the evidentiary quality of the cash, such as the legibility of 

the serial numbers printed on the bills, was likely to be 

impaired by prolonged exposure to the environment of defendant's 

vaginal cavity. See State v. Clark, 654 P.2d 355, 360 (Haw. 

1982) (stating that there was no risk that currency would 

dissipate by "absorption or dissolution" while located inside 

arrestee's vagina); cf. State v. Fontenot, 383 So.2d 365, 367 

(La. 1980) (stating that there was no danger that capsules 

enclosed in a pill bottle would be "absorbed or destroyed" while 

located inside arrestee's vagina). Moreover, during the delay 

necessary to obtain a search warrant, defendant could have been 

observed and prevented from destroying the cash. See Clark, 654 

P.2d at 360; Fontenot, 383 So.2d at 367. As such, we cannot say 

that the officers involved had a reasonable belief that the delay 

necessary to obtain a search warrant would have resulted in the 

destruction of the evidence sought. 

 Because we conclude that the police violated the Fourth 
 15 

Amendment when they subjected defendant to a warrantless search 

of her vaginal cavity, we need not address whether the manner in 

which this search was performed -- by a non-medically-trained 

person in an interrogation room -- was unreasonable under the 

Fourth Amendment. See Schmerber, 384 U.S. at 771-72. Although 

the trial court found the search unreasonable because it was 

conducted outside the presence of a medically-trained person, in 

light of our analysis of this case, "the right result reached by 

the trial court . . . will nevertheless be approved." Thims v. 

Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 447 (1977).7

 For the foregoing reasons, we affirm the trial court's order 

granting defendant's motion to suppress. 

 Affirmed. 

 

 7Authorities who conduct body cavity searches are required to 

comply with procedures established by the General Assembly in 

Code § 19.2-59.1(C). Code § 19.2-59.1(C) states in full: 

 A search of any body cavity must be performed 

under sanitary conditions and a search of any 

body cavity, other than the mouth, shall be 

conducted either by or under the supervision 

of medically trained personnel. 
 16 

Cole, J., concurring. 

 I concur in the majority's decision to affirm the trial 

court's ruling to suppress the evidence. However, I disagree 

with the majority's conclusion that the deputy sheriff did not 

have a "clear indication" that the evidence was located within 

Gilmore's body cavity. 

 The Supreme Court has consistently held that searches are to 

be judged on a case-by-case basis and that all searches must be 

conducted in a reasonable manner. Here, the facts proved that a 

drug transaction occurred and that marked money had been given to 

the driver of the car in which the appellee, Gilmore, was a 

passenger. The police maintained surveillance of the car until 

it was stopped. A thorough search of the car failed to reveal 

the money. A non-intrusive search of Gilmore and the driver also 

failed to produce the money. Eliminating all reasonable 

explanations as to the whereabouts of the money, the police were 

faced with only one other possibility: that Gilmore had hidden 

the money on her person. After the police officer first 

performed a strip search, the only remaining possibility was that 

the money was hidden in appellant's body cavity. Therefore, 

contrary to the majority's view, I find from the evidence a 

"clear indication" that Gilmore had secreted the money on her 

person. 

 I do not believe, however, that the officers were faced with 

sufficient exigent circumstances to justify their decision to 
 17 

proceed with the internal body search in the absence of a search 

warrant. A medically-trained person did not perform the search. 

 The evidence does not disclose that the procedure was performed 

in a manner reasonably ensuring the safety and health of the 

suspect. For this reason, I concur in the affirmance.