Intrusive warrantless searches of one’s body are ripe for challenge, says Fairfax criminal lawyer

Intrusive warrantless searches of one’s body are ripe for challenges. As a Fairfax drug lawyer, I am delighted that the Virginia Court of Appeals overturned a grossly bodily-invasive streetside search of a suspect, even pulling on his underwear to see his bare skin underneath, followed by an even more probing search at the jail. Hubbard v. Virginia, ___ Va. App. ___ (March 12, 2024). Perhaps thinking they had a green light to search Hubbard based on his prospective search waiver in a prior plea deal, police went hog wild looking for drugs on him, to the point of looking inside Hubbard’s underwear on the roadside (with his shorts falling down) after feeling a hard object during a patdown, and then taking him to the jail and yanking a bag of cocaine out of his rectum. The Virginia Court of Appeals set police straight on the limits of their authority to conduct such warrantless searches, after dissuading any notion that Hubbard’s general waiver of challenging searches during his previously-imposed probation somehow waived being able to challenge searches of this level of intrusiveness.

What does the Virginia Court of Appeals say about intrusive bodily searches?

A “‘warrantless search involving a bodily intrusion, even though conducted incident to a lawful arrest, violates the Fourth Amendment unless’ three criteria are met: (1) ‘the police have a “clear indication”  that evidence is located within a suspect’s body,’ (2) ‘the police face exigent circumstances,’ and (3) ‘the means and procedures employed by the authorities to conduct a search involving an intrusion into the body . . . satisfy “relevant Fourth Amendment standards of reasonableness.”‘ Commonwealth v. Gilmore, 27 Va. App. 320, 330-31 (1998) (quoting Schmerber, 384 U.S. at 768).” Hubbard. A ‘search of the person may range from a Terry-type pat-down to a generalized search of the person to the more invasive strip search or body cavity search.’ [ Hughes v. Commonwealth,] 31 Va. App. [447] at 455 [(2000) (en banc)]. We suggested that a strip search ‘generally refers to an inspection of a naked individual, without any scrutiny of his body cavities,” whereas a ‘visual body cavity search extends to a visual inspection of the anal and genital areas.’ Id… Finally, ‘[a] ‘manual body cavity search’ includes some degree of touching or probing of body cavities.’ Id.” Hubbard.  The Virginia Court of Appeals ” has understood that a defendant’s consent to search her person does not include consent to an intrusive search of the body.” Id.  Better yet is to avoid consenting to a search in the first place, unless in consultation with a qualified criminal defense lawyer.

What is the important Fourth Amendment Constitutional distinction between feeling a hard object on one’s body and pulling open their underwear without a search warrant?

Hubbard — whose deciding panel includes past Fairfax Circuit Court Judge Daniel Ortiz — invalidates the intrusive warrantless police search of Hubbard that followed after feeling a hard object in Hubbard’s groin area: “Under Gilmore, to continue the search by looking into Hubbard’s underwear and attempting to remove the item, officers needed a ‘clear indication’ that evidence was located within a suspect’s body, and exigent circumstances must have existed. Gilmore, 27 Va. App. at 330-31. Hubbard is all the more a criminal defense-friendly opinion, when considering that Hubbard invalidates the warrantless pulling of the cocaine bag out of his rectum — and will cocaine consumers stop to consider whether they want to use cocaine that was adjacent to a trafficker’s fecal matter — even though police “had a ‘clear indication’ that the hard object in Hubbard’s bottom contained illegal drugs,” where Hubbard was carrying $2000, his car smelled of marijuana (and included marijuana shake), and police in Hubbard’s car “found bags of white and brown powders that were ‘knotted up’ and appeared to contain illegal drugs.”

What if police claim exigent circumstances for conducting a warrantless search of me?

Hubbard rejects the commonwealth’s / prosecutor’s argument that exigent circumstances allowed the LEO’s warrantless intrusive search of Hubbard for exigent circumstances against evidence destruction or hiding. When police claim an exigency against property destruction (and various other exigencies), the reviewing court must consider: “(1) the degree of urgency involved and the time required to get a warrant; (2) the officers’ reasonable belief that contraband is about to be removed or destroyed; (3) the possibility of danger to others, including police officers left to guard the site; (4) information that the possessors of the contraband are aware that the police may be on their trail; (5) whether the offense is serious, or involves violence; (6) whether officers reasonably believe the suspects are armed; (7) whether there is, at the time of entry, a clear showing of probable cause; (8) whether the officers have strong reason to believe the suspects are actually present in the premises; (9) the likelihood of escape if the suspects are not swiftly apprehended; and (10) the suspects’ recent entry into the premises after hot pursuit.” Hubbard (citing Verez v. Commonwealth of Virginia, 230 Va. 405, 410-11 (1985)).

Can police successfully claim an exigency for a warrantless search upon a hunch of possible fentanyl injury?

The Hubbard prosecution also claimed that the risk of fentanyl injury to police provided an exigency to allow LEO to proceed with an intrusive search of Hubbard without a warrant. Hubbard rejects that claim: “On this record, there is no ‘actual information’ in the testimony or body camera footage that ties the hard object in Hubbard’s buttocks to something more than a ‘theoretical possibility’ about fentanyl… Nor could anecdotal evidence that there is a lot of fentanyl in circulation amount to ‘actual information’ creating an exigent circumstance. Thus, while fentanyl may be dangerous, harmful, and more present than it used to be, the mere chance that fentanyl could be lurking around the corner is not an exigent circumstance.” Hubbard (and underlining at n. 11 that other “courts that have faced this question have reached the same conclusion”).

How do I avoid an arrest, prosecution and conviction for transporting illegal drugs / controlled substances?

The obvious answer to the above question is to avoid transporting illegal drugs, whether or not you also wish to avoid an intrusive search. Whether or not you are carrying contraband or evidence of a crime, you are at great risk to do anything other than asserting your Fourth Amendment right to decline a police search (but not to physically resist), to assert your Fifth Amendment Constitutional right to remain silent with LEO, and your Sixth Amendment right to demand the assistance of a qualified Virginia criminal defense lawyer. If you are criminally charged, make it your top priority to timely identify and obtain a qualified attorney.

Fairfax drug lawyer Jonathan Katz pursues your best defense against Virginia drug, felony, misdemeanor and DUI prosecutions. Secure your free in-person consultation with Jon Katz about your court-pending case, by calling 703-383-1100.