Willie Louis Johnson v. Commonwealth of Virginia ( 2000 )

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.
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,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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.
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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.
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