COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, El der and Bray Argued at Rich mond, Virginia

LYNN TAYLOR, JR. MEMORANDUM OPINION * BY v. Record No. 0961-00-2 JUDGE RICHAR D S. BRAY JUNE 5, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Gregory W. Frankl in, Assistan t Public Defender, for appellant. Marla Graff Decker , Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Lynn Taylor, Jr. (defendant) was convicted in a bench trial for possession of cocaine with intent to distribute, a violation of Code § 18.2-248. On appeal, he comp lains the tr ial court erroneously de nied his motion to suppress evidence unconstitution ally obtained during a warrantless bo dy cavity search. We ag ree and reverse the conviction. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.I. In reviewing a tria l court's ruling on a suppre ssion motion, we consider the evid ence in the li ght most favorable to the prevailing party belo w, the Commonwealth in this instance, granting to it all reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "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. 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 v. Commonwealth , 25 Va. App. 193, 19 7-98, 487 S. E.2d 259, 261 (1997) ( en banc ) (quoting Ornelas v. Un ited States , 517 U.S. 690, 691, 699 (1996)). "On appe al, it is the de fendant's burden to show 'that the denial of [the] motion to suppre ss constitute[d] reversible error.'" Moss v. Co mmonwealth , 30 Va. App. 219, 223, 516 S.E.2d 246, 248 (1999) (citation omitted). Viewed accordingly, the inst ant record disc loses that, on January 11, 2000, Richmond Police Detective Kennet h L. Roane was conducting an un dercover operation intended "to make . . . street level" controlled buys of cocaine. A confidential informant "was set up with audi o-video assist ance," instructed to engage in purchases of the drug and transmit a descript ion of the seller to

- 2 -a police "technician, " assigned to monitor and vi deotape each transaction. In accordance with the established procedure, the informant purc hased cocaine from a drug dealer, later identified as defendant. A de scription of defendan t was relaye d to an "arrest team," togeth er with information that defendant was "dealing [cocaine] from the crotch area," "goi ng in his pants" for the drugs. Instructed to "m ove in," Officers Bates and Naoroz apprehended de fendant within a few second s of the alert, and Bates "conduct[ed] a safety pat down." Fi nding nothing, defendant was handcuffed and placed in the patrol car for transport to police headquarters. En route, defendan t "was moving hi s hands about, sitting on his hands" and "complain[ ing] about the handcuffs," "doing it so much" th at Naoroz, "at least three times[,] . . . instructed him to stop moving." Upon arrival at he adquarters, de fendant was ta ken to "the debriefing area" and in terrogated by Bates, Naoroz, and Detective Kenneth Peters on. Defendant de nied possessing contraband but continued to "squirm" in his chair. Recalling a pr ior arrest of defendant for dist ribution of cocaine, Naoroz was aware defendant had then secreted coca ine in his "buttocks ar ea." Addi tionally, both Naoroz and Pete rson noted that illi cit drugs are often concealed in the "anal area," a practice that may endanger the offender, alth ough neither coul d cite an incide nt of health

- 3 -problems resulting from the anal placement of drugs, and defendant had exhibited no difficulties. Confronted with such circumstances and unable to locate the drugs upon a cursor y search of defend ant, Bates removed defendant's pa nts, "search[ed] hi m" and, finding nothing, "pulled down his underwear" and visual ly inspected hi s buttocks and crotch, again with out result. Police then directed defendant to "bend over" and "D etective Peterson . . . gr abbed both of his butt cheeks and spread it open. At that time [Bates] used [his] flashlight and looked up and . . . finally saw . . . what [he] believed to be crack cocaine inside the sm all baggies." Bates then retrieved the offending cocain e from defend ant's anus, resulting in the in stant conviction.

II. "[A] lawful arrest of a suspect authorizes the police to conduct 'a full search of the [arres tee's] person.'" Commonwealth v. Gilmore , 27 Va. App. 320, 328-29, 498 S. E.2d 464, 46 8 (1998). However, "a warr antless search involving a bodily intrusion, even though conducted incide nt to a lawful arrest , violates the Fourth Amendment unless (1) the police have a 'clear in dication' that evidence is loca ted within a suspect's bo dy and (2) the police face exigent ci rcumstances." Id. at 330, 498 S. E.2d at 469. Thus, "[p]robabl e cause to believe a su spect posses ses drugs, which justifies a search of an individu al, does not justify a . . . body cavity sear ch unless the eviden ce or circ umstances - 4 -specifically provides the officers with a 'c lear indication' that the contraband is concealed in a body cavity." Hughes v. Commonwealth , 31 Va. App. 447, 460, 52 4 S.E.2d 155, 162 (2000) ( en banc ). The requis ite "clear indication" must coincide with "additional exig encies" in justification of an "intrusion[] beyond the body's surface." 1 Moss , 30 Va. App. at 226, 516 S.E.2d at 249 (citation omitted). Accordingly, defendant first co ntends that th e officers did not have a "clear indication" he "had drugs in his anus." We disagree. Police we re aware defendant wa s "dealing" from the "crotch area" of his pants and effe cted the arrest only moments after the informan t had purchased co caine from him. In transit to police headquarters, defendant was re stless, "squir ming around" and "sitting on his hands," despit e repeated reques ts to stop. Based upon experience as police officers, Naor oz and Peterson were aware that narcotics are often concea led in the anal cavity. Moreover, Naoroz had discovered drugs hidden in defendant's "buttocks area" on a prior occasion . Repeated limi ted searches of defendant's pe rson following arre st had revealed no narcotics. Such circumstances prov ided a sufficiently "c lear indication" that defendant had hidd en the cocaine in his bu ttocks or "a nal area."

1 Exigencies expressly recognized in Moss include "the risk of destruction of evidence, imminent medical harm to the suspect, or secretion of a weapon." Moss , 30 Va. App. at 226, 516 S.E.2d at 249. - 5 -Defendant next maintains th at the instant circumstances failed to demons trate the exigen cy component in dispensable to support a warran tless body cavity sear ch. In re sponse, the Commonwealth relies upon health concerns re lated to the absorption of cocaine into defendan t's body through the an al cavity to infuse the requisite exigency. Here, like Moss , the record does not reflect ei ther a threat to the evidence or de fendant's health resulting from any delay attendant to issuance of a search warrant. Defendan t was in custody and easi ly monitored, and no evidence suggests an impediment to a proper warrant. More over, adopti on of the Commonwealth's argument would judicial ly countenanc e warrantless body cavity searches up on every "clear indica tion" that drugs were concealed with in body cavities , a result clearl y at odds with existing precedent. Thus, despite a clear indicati on that narcot ics would be found within defendan t's anal cavity, the absence of attendant exigent circumstances preclude d the warrantl ess search. Accordingly, the trial court erroneousl y denied defend ant's motion to suppress the disput ed evidence, an d we reverse th e conviction, remanding for fu rther proceeding s if the Common wealth be so advised. Reversed and remanded.

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