Hubbard v. Commonwealth

898 S.E.2d 386

80 Va.App. 384

Shanta Orlando HUBBARD, a/k/a Shawn Hubbard

v.COMMONWEALTH of Virginia

Record No. 0795-23-3

Court of Appeals of Virginia, Lexington.

March 12, 2024

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, F. Patrick Yeatts, Judge

W. Cameron Warren (M. Pack Law, PLLC, on brief), Bedford, for appellant.

J. Brady Hess, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Ortiz, Lorish and Senior Judge Petty

OPINION BY JUDGE LISA M. LORISH

₃₉₃During a traffic-related stop, officers searched Shanta Orlando Hubbard on the side of the road. An officer patted down Hubbard, examined his pockets, put his hand between Hubbard’s shorts and underwear and "swiped" his buttocks, all while Hubbard stood by the side of the road. After feeling a hard object in his bottom, the officer struggled to remove the item as Hubbard resisted by clenching his posterior. During this engagement, the officer looked and reached inside Hubbard’s underwear. Hubbard’s shorts (though not his underwear) dropped to the ground. Officers gave up after more than a minute and a half of trying to remove the item and decided to take Hubbard to the jail for further processing. After a ₃₉₄pause, the search resumed, and an officer again reached inside Hubbard’s underwear, proclaiming that he could feel the item but could not remove it because Hubbard was clenching his bottom together. Ultimately, the officer extracted a plastic bag filled with smaller plastic bags containing crack and powder cocaine.

[1–4] The standard for assessing the constitutionality of warrantless intrusive bodily searches under the Fourth Amendment is higher than it is for other types of warrant- less searches. First, the officer conducting the search must have a clear indication that the concealed object is present. Second, exigent circumstances must justify the search. Finally, the search must be conducted in a reasonable manner, consistent with the Fourth Amendment. Applying the test for intrusive searches here, we agree with the trial court that officers had a clear indication that drugs were likely present in Hubbard’s bottom. But we disagree with the trial court that exigent circumstances existed based on the mere speculation that the concealed item could have contained fentanyl. We cannot find support in the record for any other exigent circumstances without the development of other facts—a task we cannot take up on appeal. Finally, while Hubbard waived his right against warrantless searches of his person in a prior plea agreement, we have already held that a general consent to a warrantless search does not include an intrusive search of private areas. Thus, the Fourth Amendment requires reversal.

BACKGROUND¹

[5] In June 2020, City of Lynchburg Police Officer Waterman stopped Shanta Hubbard’s truck for a suspected traffic infraction. As he approached the truck, Officer Waterman smelled "the odor of marijuana." After identifying Hubbard as ₃₉₅the driver, Officer Waterman ran his license through a database to determine whether Hubbard had any active warrants. The officer learned that Hubbard had an active Fourth Amendment rights waiver from a 2012 plea agreement in which Hubbard waived his Fourth Amendment rights and consented to warrantless searches of his person and property for ten years. Based on the smell of marijuana and the rights waiver, Officer Waterman ordered Hubbard and his passenger out of the truck and began to search it. Officer Waterman found green plant material on the floorboards as well as bags of white and brown powders that were "knotted up" in a manner consistent with the appearance and packaging of illegal drugs.

Officer Waterman then began to search Hubbard, while another officer searched the passenger. Officer Waterman found about $2,000 in Hubbard’s pockets, and then told Hubbard that he would unbutton his shorts to check his "groin area." Officer Waterman put his hand "inside of" Hubbard’s shorts to "swipe" his buttocks over the outside of Hubbard’s underwear. He "felt a large rock-like object" consistent with a controlled substance. At that point, Hubbard clenched his buttocks together and tried to reach inside his shorts with his hands that were handcuffed behind his back. Another officer came to assist Officer Waterman during the search by holding Hubbard’s wrists to prevent him from reaching down.

Officer Waterman then pulled back Hubbard’s boxer shorts and looked inside as his body camera confirms. Officer Waterman said he was "trying to see where it went," and the Commonwealth later introduced stills from the body camera footage of the view inside Hubbard’s boxer shorts as exhibits at trial. While looking inside, Officer Waterman also reached inside and tried to retrieve the hard object, but struggled with Hubbard, who was clamping his buttocks together tightly. During this struggle, the officers lost their grip on Hubbard’s outer shorts, which fell down to his ankles for a few seconds before the officers could pull them back up again. After about two minutes, officers paused the search and decided to "try and get it out at the jail." Testifying at the later motion to ₃₉₆suppress hearing, an officer explained this was because "you know, we’re sitting here reaching in the back of his shorts [and] [h]e’s not letting us get it" and "we understand the dynamics of it and how it looks when we’re trying to retrieve this item."

While two of the officers focused on securing the truck’s other passenger, a third officer remained next to Hubbard. The officer saw Hubbard shaking his leg and reaching toward the back of his shorts. While Hubbard’s arms remained handcuffed together behind his back, the officer believed Hubbard was trying to remove the item from his shorts. The officer feared that Hubbard would shake out the item and then "kick it, stomp it out" or "destroy it." Officer Waterman testified that his concern was that if the drugs in Hubbard’s buttocks were "fentanyl and he had stomped it out and a gust of wind would have came by, it could have killed all of us."

Thus, officers resumed the search, again reaching into Hubbard’s boxers. It took about a minute for them to extract the object, as Hubbard was again tightly clenching his buttocks to prevent the removal. Officer Waterman testified that the item was "partially clenched between his buttocks and then it was laid up against his boxer shorts" when they finally removed it. The item was packaged in a plastic bag containing 87 smaller bags of crack and powder cocaine, later confirmed through lab testing.

Before trial, Hubbard moved to suppress all the evidence obtained because of the search. Hubbard conceded that the Fourth Amendment waiver he agreed to in a previous plea agreement was valid but argued that "a warrantless body cavity search is peculiarly intrusive and does not fall within the scope and consent of the waiver."

The trial court found that it was objectively reasonable for the police to believe they had consent to remove the item from Hubbard’s buttocks, considering Hubbard’s agreement to warrantless searches in his prior plea agreement, but ultimately finding that the officers had a clear indication that Hubbard was concealing drugs and that there were exigent circumstances.₃₉₇ Emphasizing the wide-spread presence and dangerousness of fentanyl (and noting that it would be a "closer call" in a pre-fentanyl era), the trial court found that the possibility that the drugs were fentanyl created an exigent circumstance justifying the police reaching into Hubbard’s underwear and retrieving the item from his buttocks. This was necessary to ensure the item was transported "safely and securely" without exposing "other individuals to a harmful substance." Thus, the trial court denied the motion to suppress.

Following the jury’s finding of guilt, the trial court convicted Hubbard of possession with intent to distribute. Hubbard appeals.

ANALYSIS

Hubbard challenges the trial court’s denial of his pretrial motion to suppress. He argues that Officer Waterman publicly strip searched him without sufficient justification and that this warrantless search violated his Fourth Amendment² right against unreasonable searches and seizures. On brief, the Commonwealth argues that the search was constitutional because Hubbard consented to warrantless searches in his prior plea agreement, and, alternatively, because the officers met the criteria to carry out a valid public strip search—the officer had a clear indication that drugs were present, and there were exigent circumstances.

[6–8] In evaluating a trial court’s decision on a motion to suppress, "an appellate court must give deference to the factual findings of the [trial] court and give due weight to the inferences drawn from those factual findings; however, the appellate court must determine independently whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." Moore v. Commonwealth, 69 Va. App. 30, 36, 813 S.E.2d 916 (2018) (quoting Commonwealth₃₉₈ v. Robertson, 275 Va. 559, 563, 659 S.E.2d 321 (2008)). Because the officers searched Hubbard without a warrant, "the Commonwealth ha[d] the burden of proving the legitimacy of [the] warrantless search and seizure." Reittinger v. Commonwealth, 260 Va. 232, 235-36, 532 S.E.2d 25 (2000) (quoting Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656 (1989)). On appeal, Hubbard "bears the burden of establishing that reversible error occurred." Williams v. Commonwealth, 71 Va. App. 462, 474, 837 S.E.2d 91 (2020).

We begin by reviewing our caselaw with respect to Fourth Amendment waivers, and we ultimately agree with the position the Commonwealth conceded was correct at oral argument—that consent to warrantless searches in a plea agreement does not include consent to intrusive searches of private areas. Then we consider whether the warrantless search of Hubbard’s person was constitutional in...