COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bumgardner 

Argued at Richmond, Virginia 

CHARLES LEE TAYLOR 

 OPINION BY 

v. Record No. 2185-97-2 JUDGE RUDOLPH BUMGARDNER, III 

 DECEMBER 15, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Mary Katherine Martin, Senior Assistant 

Public Defender, for appellant. 

 Richard Barton Campbell, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Charles Lee Taylor appeals the denial of his motion to 

suppress evidence obtained during a strip search. The defendant 

entered a conditional plea of guilty to possession of cocaine and 

preserved his right to appeal the denial of the motion to 

suppress. He argues that the strip search violated his Fourth 

Amendment rights. We agree and reverse his conviction. 

 A police officer saw the defendant walking in a known drug 

area. When the officer said he wanted to speak with him, the 

defendant approached. While they talked, the officer noticed the 

defendant's eyes were bloodshot and he had a strong odor of 

marijuana on his breath. The defendant was cooperative and 

laughing, and admitted smoking marijuana earlier that day saying, 

"you know I smoke marijuana." The officer arrested the defendant 

for public intoxication. 
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 The officer frisked the defendant for weapons and contraband 

before placing him in the cruiser. He patted down the 

defendant's outer garments, pockets, crotch, arms, and legs. He 

found nothing, and nothing caused him to suspect the defendant 

might be concealing contraband or weapons. At the jail, the 

officer advised the defendant that he would be strip searched. 

The arresting officer called for two deputies to assist when the 

defendant objected and became combative. The officer said that 

since the defendant's lack of cooperation got worse at this time, 

it "made me think he had something on him." The officers made 

the defendant remove one item of clothing at a time. When the 

defendant removed his underwear, they observed a plastic bag 

protruding from his anus. The officers seized the plastic bag 

which proved to contain cocaine. 

 The defendant contends that the evidence should be excluded 

because the strip search was illegal pursuant to Code § 19.2-59.1 

and the Fourth Amendment. However, the fact that a search 

violates a legislative mandate without violating the Constitution 

does not provide for the exclusion of such evidence. See Hatcher 

v. Commonwealth, 14 Va. App. 487, 493, 419 S.E.2d 256, 260 

(1992). See also Troncoso v. Commonwealth, 12 Va. App. 942, 944, 

407 S.E.2d 349, 350 (1991) (Code § 19.2-60 does not authorize the 

suppression of evidence unless there is a constitutional 

violation or a violation of a statute which expressly provides 

for suppression). As a result, we turn our analysis to whether 
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the strip search violated the defendant's constitutional rights. 

 On appeal of a motion to suppress, the defendant has the 

burden of proving that a warrantless search violates his Fourth 

Amendment rights. See Fore v. Commonwealth, 220 Va. 1007, 1010, 

265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). We view 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible from 

the evidence. See Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). "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. Ornelas v. United States, 517 U.S. 690, 699 

(1996). We review de novo the application of defined legal 

standards to the particular facts of a case. See id.

 A lawful custodial arrest authorizes a full search of the 

person. See United States v. Robinson, 414 U.S. 218, 234-35 

(1973) (defendant arrested for minor traffic offense). However, 

strip searches require special justification since they are 

peculiarly intrusive. "Strip searches of detainees are 

constitutionally constrained by due process requirements of 

reasonableness under the circumstances." Logan v. Shealy, 660 

F.2d 1007, 1013 (4th Cir. 1981), cert. denied, 455 U.S. 942 

(1982). In each case we must balance "'the need for the 

particular search against the invasion of personal rights that 

the search entails.'" Id. (quoting Bell v. Wolfish, 441 U.S. 
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520, 559 (1979)). See Commonwealth v. Gilmore, 27 Va. App. 320, 

328, 494 S.E.2d 464, 468 (1998) (police authority to conduct 

warrantless search is "only skin deep"). "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." Bell, 441 U.S. at 559-60 (holding that 

both inmates and pre-trial detainees can be visually strip 

searched in the interests of "significant and legitimate security 

interests"). 

 If strip searches of minor non-jailable offenders are 

conducted without reasonable suspicion that the detainee 

possesses contraband or weapons, they fail the balancing test of 

Bell v. Wolfish, 441 U.S. 520 (1979). See Stewart v. Lubbock 

County, 767 F.2d 153, 156-57 (5th Cir. 1985), cert. denied, 475 

U.S. 1066 (1986) (strip searches conducted without reasonable 

suspicion that minor offenders had possession of contraband are 

unreasonable and violate the Fourth Amendment). See also Mary 

Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) 

(strip searches prohibited where minor offenders are not 

inherently dangerous, are not being committed to a jail 

population but are merely being briefly detained, and officers 

have no reason to believe they are hiding weapons or contraband). 

 Searches may not be conducted on the "'mere chance that desired 

evidence might be obtained.'" Gilmore, 27 Va. App. at 329, 494 

S.E.2d at 468 (quoting Schmerber v. California, 384 U.S. 757, 
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769-70 (1966)). See LaFave & Israel, Criminal Procedure

§ 3.5(c), at 177 (2d ed. 1992) (routine strip searches cannot be 

"employed against all classes of arrestees"). 

 The Commonwealth contends that the officer had reasonable 

suspicion to believe that the defendant possessed contraband. It 

contends that the defendant smelled of marijuana, admitted recent 

use of the drug, and was arrested for marijuana intoxication in 

an area known for drug dealing. The Commonwealth emphasizes that 

the defendant became belligerent when informed he would be strip 

searched, and it maintains that this constituted reasonable 

suspicion that he was hiding contraband. 

 The Commonwealth argues that this case is unique because the 

nature of the defendant's offense is commonly associated with the 

possession of contraband as compared with other non-drug offenses 

or with driving under the influence charges. It argues those 

factors outweigh the limited invasion of the defendant's personal 

rights and justify the strip search. This attempt to distinguish 

the present case from those cited herein is unpersuasive. 

 The officer suspected that the defendant possibly possessed 

contraband because the defendant became belligerent when told of 

the search. However, "post hoc rationalizations have no place in 

our Fourth Amendment jurisprudence, which demands that we 

'prevent hindsight from coloring the evaluation of the 

reasonableness of a search.'" United States v. Montoya de 

Hernandez, 473 U.S. 531, 559 (1985) (quoting United States v. 
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Martinez-Fuerte, 428 U.S. 543, 565 (1976)). The officer's main 

reason to suspect contraband did not develop until after the 

officer decided to conduct the strip search. What happened after 

the officer announced his intent to conduct the strip search 

cannot be used to justify the search; the suspicion had to exist 

before the search commenced. 

 Discarding the evidence of the defendant's reactions to the 

officer's announcement of the strip search, we are left with 

insufficient facts to constitute reasonable suspicion. The 

defendant was cooperative and congenial prior to his arrest for a 

minor, non-jailable offense. The officer had no trouble patting 

the defendant down, and nothing made him suspect contraband or 

weapons during the routine pat down. An arrest for public 

intoxication by drugs justifies a search of the arrestee 

incidental to the arrest. However, when the search reveals 

nothing and does not raise any further suspicions, no reasonable 

suspicion exists that contraband must still be on the person and 

can only be revealed by a strip search. 

 The defendant was arrested for a non-jailable offense and 

would not be placed in the general jail population, so no 

institutional security consideration existed. The officer lacked 

reason to believe the defendant possessed either contraband or 

weapons. We conclude that the officer lacked suspicion 

sufficient to outweigh the defendant's personal privacy interest. 

 The evidence should have been suppressed, and we reverse the 
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trial court's denial of the defendant's motion to suppress. 

 Reversed.