McCloud v. Commonwealth

544 S.E.2d 866, 35 Va. App. 276, 2001 Va. App. LEXIS 213
CourtCourt of Appeals of Virginia
DecidedApril 17, 2001
Docket1368001
StatusPublished
Cited by16 cases

This text of 544 S.E.2d 866 (McCloud v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCloud v. Commonwealth, 544 S.E.2d 866, 35 Va. App. 276, 2001 Va. App. LEXIS 213 (Va. Ct. App. 2001).

Opinions

[278]*278FRANK, Judge.

Deshawn Eugene McCloud (appellant) was convicted in a bench trial of possession of cocaine with the intent to distribute, in violation of Code § 18.2-248. On appeal, he contends the trial court erred in denying his motion to suppress evidence obtained during a “strip search” of his person, in violation of his statutory and Fourth Amendment rights. Finding no error, we affirm the conviction.

I. BACKGROUND

On October 5, 1999, Norfolk Police Officers Christopher Hatman and T.L. Sterling were on duty in an unmarked police car in the area of Virginia Beach Boulevard and Ballentine Boulevard in Norfolk. At approximately 6:15 a.m., the officers were traveling on Virginia Beach Boulevard near its intersection with Ballentine Boulevard. The officers testified appellant ran a red light when turning right onto Virginia Beach Boulevard from Ballentine Boulevard. When appellant made the right turn, he pulled out in front of the police car, which was driven by Hatman. Appellant also was exceeding the speed limit by ten miles per hour.

The police officers followed appellant’s vehicle and ran a license plate check. The check revealed that the vehicle was stolen. The officers were in an unmarked police car that did not have emergency lights, so they followed appellant’s vehicle and directed marked police units to assist. Before the marked units arrived, appellant turned down a side street, parked and exited his vehicle. The officers exited their vehicle and approached appellant. After identifying themselves, the officers arrested appellant for possessing a stolen vehicle.1

After arresting appellant, Officer Hatman began to search appellant’s person pursuant to the arrest. During the initial [279]*279pat-down, he heard “crinkling material” in the area of appellant’s “crotch.” The officer testified that from his past experience, he knew it was common for those carrying illegal substances to keep contraband in their groin area or buttocks. Once the officer heard the “plastic rustling,” he “pulled [appellant’s] belt line back and observed the plastic baggies in the groin area.” Hatman reached in “two inches” and pulled the plastic bag out of the front of appellant’s underwear. Although the officer pulled back appellant’s underwear in the front, he did not see appellant’s genitals.

Hatman continued his search of appellant’s person. In appellant’s jacket pocket, he found a small plastic bag that contained “assorted [narcotics] packaging material,” consistent with the packaging material used to package the cocaine retrieved from appellant’s underwear. Hatman also found $140 in U.S. currency in appellant’s wallet. The officers testified that no one was in the area at the time of the search of appellant’s person. “[A]fter everything was over,” a woman came outside and told the officers that she knew appellant.

Appellant disagreed with the officers’ version of the search. He testified the police spread his body across the car with his chest on the hood and his legs apart. He maintained that his pants were hanging down to his mid-thigh. He also stated that Hatman pulled his “boxers” away from his body and looked inside his underwear using a flashlight. Appellant testified that Hatman “started feeling underneath [his] genitals,” “felt something in [his] buttocks,” and then pulled the plastic bag out of his buttocks. According to appellant, during the search, people were present on the street and the “bottom part” of his body was naked. Appellant stated that his pubic hair was showing and his boxers were barely covering his “private area.”

At the suppression hearing, appellant argued that the search was a warrantless “strip search,” which violated Code § 19.2-59.1 and the Fourth Amendment. The trial court, in denying the motion to suppress, stated:

[280]*280The Court will first say that it seems to me perfectly clear that the stop and arrest were perfectly appropriate. The officers had information that they validated the dispatcher of the stolen vehicle and certainly gave them the probable cause to make the arrest and so the Court finds that the arrest was appropriate based on the information that was available to the officers and certainly had the right to do that. And having made the arrest, certainly had the right to, for their own safety and within reasonable grounds for contraband, pat down the defendant in the way they did and to conduct reasonable search of the defendant.
In this case, the Court finds there was no invasion of any bodily cavities in any way. The Court finds that this was not a strip search. The baggies’ packaging was discovered on pat down and the Court accepts the testimony that the defendant’s pants were pulled back in the front, that the officer only had to reach in a short distance, two inches, I think was the testimony, to get the top of the baggies and get that out.
The Court finds from the evidence that the search itself given the valid and proper arrest was appropriate, and did not result in any — result in any depravation of any constitutional rights, statutory rights of the defendant and, therefore, would overrule the motion to suppress both as to arrest and as to the search that was conducted.

II. 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. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). The findings of the trial court will not be disturbed unless plainly wrong or without evidence to support them. See Mier v. Commonwealth, 12 Va.App. 827, 828, 407 S.E.2d 342, 343 (1991). When reviewing the trial court’s denial of a defendant’s motion to suppress evidence, “[t]he burden is upon [the defendant] to show that th[e] [281]*281ruling, 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) (quotation marks and citations omitted).

Debroux v. Commonwealth, 32 Va.App. 364, 370-71, 528 S.E.2d 151, 154, aff'd, 34 Va.App. 72, 537 S.E.2d 630 (2000) (en banc).

“[W]e 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 v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996)). However, 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.

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544 S.E.2d 866 (Court of Appeals of Virginia, 2001)

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Bluebook (online)
544 S.E.2d 866, 35 Va. App. 276, 2001 Va. App. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccloud-v-commonwealth-vactapp-2001.