Andrew Burney v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
ANDREW BURNEY
MEMORANDUM OPINION * BY
v. Record No. 1209-01-2 JUDGE WILLIAM H. HODGES
MAY 14, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Cynthia E. Payne, Assistant Public Defender,
for appellant.
Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Andrew Burney entered conditional guilty pleas for
possession of heroin with the intent to distribute, possession
of cocaine with the intent to distribute, and failure to appear
in court. The trial court denied his motion to suppress the
evidence obtained during a search of his person. On appeal, he
argues that the trial court erred in denying his motion and
admitting the Commonwealth's evidence. Burney contends the
evidence was obtained as a result of an illegal search. For the
reasons that follow, we disagree and affirm his convictions. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant did not challenge on appeal his conviction for
failure to appear.
BACKGROUND
Viewed in the light most favorable to the Commonwealth,
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991), the evidence proved that on August 20, 1998,
Officer Jack Intagliato and his partner observed Burney
traveling in a car at a high rate of speed. Intagliato
initiated a traffic stop and discovered Burney's license had
been suspended. Intagliato placed Burney under arrest for
reckless driving and driving with a suspended license and
conducted a search of his person incident to arrest.
Intagliato searched Burney for illegal contraband, escape
devices, and weapons. During the search, he pulled Burney's
waistband out in the front and immediately saw two plastic bags
in front of Burney's genital area. One bag contained crack
cocaine and the other bag contained heroin. Intagliato
testified he did not unbuckle Burney's belt, that Burney's pants
did not fall down during the search, and that Burney was not
disrobed.
ANALYSIS
"On appeal from a trial court's denial of a motion to
suppress, we must review the evidence in the light most
favorable to the Commonwealth, granting to the Commonwealth all
reasonable inferences fairly deducible from it." Debroux v.
Commonwealth, 32 Va. App. 364, 370, 528 S.E.2d 151, 154, aff'd
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en banc, 34 Va. App. 72, 537 S.E.2d 630 (2000). "'The burden is
upon [the defendant] to show that th[e] 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) (alterations
in original) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010,
265 S.E.2d 729, 731 (1980)).
"'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." Id. (quoting
Ornelas v. United States, 517 U.S. 690, 691 (1996)). However,
"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, 517 U.S. at
699).
In this case, the threshold issue is whether the police
conducted a "strip search." Burney contends the search violated
Code § 19.2-59.1. However, by its own terms, Code § 19.2-59.1
does not apply to Class 1 or Class 2 misdemeanor offenses. 2
2
Code § 19.2-59.1(A) states:
No person in custodial arrest for a
traffic infraction, Class 3 or Class 4
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Burney was arrested for reckless driving and driving with a
suspended license, Class 1 and 2 misdemeanors, respectively, at
the time of the offenses. See Code §§ 46.2-301, 46.2-852, and
46.2-868. These offenses do not constitute traffic infractions.
See Code §§ 46.2-100 and 46.2-113. Consequently, the definition
of a strip search in Code § 19.2-59.1 does not apply to this
case. See McCloud v. Commonwealth, 35 Va. App. 276, 281, 544
S.E.2d 866, 868 (2001).
"A search of the person may range from a
Terry-type pat-down to a generalized search of
the person to the more intrusive strip search or
body cavity search. 'A strip search generally
refers to an inspection of a naked individual,
without any scrutiny of his body cavities. A
visual body cavity search extends to a visual
inspection of the anal and genital areas.'
Commonwealth v. Thomas, 429 Mass. 403, 708 N.E.2d
669, 672 n.4 (1999). 'A "manual body cavity
search" includes some degree of touching or
probing of body cavities.' Cookish v. Powell,
945 F.2d 441, 444-45 n.5 (1st Cir. 1991)."
misdemeanor, or a violation of a city,
county, or town ordinance, which is
punishable by no more than thirty days in
jail shall be strip searched unless there is
reasonable cause to believe on the part of a
law-enforcement officer authorizing the
search that the individual is concealing a
weapon. All strip searches conducted under
this section shall be performed by persons
of the same sex as the person arrested and
on premises where the search cannot be
observed by persons not physically
conducting the search.
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Id. at 282-83, 544 S.E.2d at 868-69 (quoting Hughes v.
Commonwealth, 31 Va. App. 447, 455, 524 S.E.2d 155, 159 (2000)
(en banc)). We characterized the search of Hughes' person as a
"strip search" because he was forced to disrobe while the police
inspected his underwear. Because McCloud's "clothing was not
removed, and his genital area was not exposed," we found he was
not subjected to a strip search. McCloud, 35 Va. App. at
283-84, 544 S.E.2d at 869. Where officers merely "arrange" a
suspect's clothing, a strip search has not occurred. Id.
In McCloud, the officers only "pulled back [McCloud's]
underwear in the front." Id. at 279, 544 S.E.2d at 867.
Similarly, Intagliato pulled back the waistband of Burney's
underwear and looked inside, immediately spotting two bags
containing suspected narcotics. Contrary to Burney's
contention, the evidence does not indicate that Intagliato could
see Burney's genitals when the officer pulled back Burney's
underwear. The officer did not touch Burney's genitals. As in
McCloud, Burney was not subjected to a "strip search." The
trial court did not err by denying Burney's motion to suppress
the evidence obtained during the search incident to his arrest.
Therefore, we affirm the decision of the trial court.
Affirmed.
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Benton, J., concurring.
For the reasons stated in McCloud v. Commonwealth, 35 Va.
App. 276, 284-86, 544 S.E.2d 866, 869-70 (2001) (Benton, J.,
concurring), I concur in the judgment affirming the conviction.
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