Commonwealth of Virginia v. Abdul Rahman Cole ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Annunziata
UNPUBLISHED
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION BY
v. Record No. 1744-14-4 JUDGE ROSSIE D. ALSTON, JR.
FEBRUARY 13, 2015
ABDUL RAHMAN COLE
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
Christopher P. Schandevel, Assistant Attorney General (Mark R.
Herring, Attorney General, on briefs), for appellant.
Kevin T. Gaynor for appellee.
Pursuant to Code § 19.2-398(A)(2), the Commonwealth appeals the trial court’s decision
to grant appellee Abdul Rahman Cole’s motion to suppress evidence obtained during a strip
search of appellee. Specifically, the Commonwealth argues that the trial court erred in granting
appellee’s motion to suppress because it applied the wrong legal standard in assessing the
constitutionality of the jail’s strip search policy in light of the Supreme Court of the United
States’ holding in Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 132 S. Ct.
1510 (2012). We agree with the Commonwealth and thus, reverse the trial court’s decision and
remand the case to the trial court for further proceedings.

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. Background1
The evidence indicated that on April 8, 2014, Alexandria Police Officer Tony Moore
stopped appellee’s vehicle for failure to maintain lane control. After stopping appellee, Officer
Moore learned that he had an outstanding warrant in Arlington County for a failure to appear on
a DUI charge. During a search of appellee’s vehicle, Officer Moore found an open container of
alcohol and a small round cigar containing what appeared to be marijuana inside of a
McDonald’s bag. After field-testing the substance in the cigar, Officer Moore told appellee that
he was charging him with possession of an open container and possession of marijuana and
transported appellee to the Alexandria Detention Center.
When Officer Moore and appellee arrived at the Alexandria Detention Center, Deputy
Robert Roland met them in the sally port and conducted a pat-down search of appellee’s outer
clothing and the inside of his pockets. Officer Moore informed Deputy Roland about the
Arlington warrant and the marijuana and open container charges. In light of the drug charge,
Deputy Roland contacted his supervisor and obtained permission to “strip search” appellee.
Once in the room designated for strip searches, along with Officer Moore, Deputy Roland
conducted a visual body cavity search of appellee, which included, among other requirements
that appellee bend or squat so that Deputy Roland could observe his genital and buttock region.
The search did not involve any physical contact from the officers. During the search, Officer
Moore and Deputy Roland observed and, after a brief struggle with appellee, recovered a baggie
from appellee’s buttocks, which contained fourteen rocks of crack cocaine and a small amount of
marijuana. After the strip search, Officer Moore then took appellee before the magistrate. There
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
-2-
is no evidence in the appendix as to whether the magistrate released appellee on bond or ordered
him held in the detention facility.2
Subsequently, appellee moved to suppress, on two separate bases, the cocaine and
marijuana found in the baggie, and the trial court held a hearing on appellee’s motion on August
28, 2014. At the hearing, Officer Moore testified consistent with the facts set forth above. In
addition, Deputy Roland testified to the Alexandria Detention Center strip search policy in place
when appellee was arrested. The policy required a strip search for any person being booked for a
drug or weapons charge, or for any crime of violence and required supervisors to approve a
requested strip search, which could be denied if the supervisor determined the immediate charge
did not justify the search. Detainees processed into the general population, however, are strip
searched regardless of the charges against them.
At the conclusion of the hearing, the trial court denied appellee’s motion to suppress on
one of the grounds, and took the motion to suppress under advisement as to the constitutionality
of the strip search. The trial court reconvened the hearing regarding the constitutionality of the
strip search on September 11, 2014. Prior to the trial court ruling on the motion to suppress, the
Commonwealth requested permission to put on more evidence in particular regarding the layout
of the jail, the strip search policy, and the supervisory process. The defense objected to
re-opening the evidence. The trial court ruled that because “everybody missed the Florence
decision” prior to the first hearing, “it would be abuse of discretion not to allow the
2
Appellee was ultimately indicted on the felony charges of possession of cocaine with
intent to sell, give, or distribute, second offense, in violation of Code § 18.2-248, and attempt to
impede a law enforcement officer by threats of bodily harm or force in violation of Code
§ 18.2-460, as well as the misdemeanor offense of possession of marijuana with intent to
distribute in violation of Code § 18.2-248.1. Pursuant to the Court’s authority to hear this appeal
under Code § 19.2-398(A)(2), we only consider appellee’s felony charges.
-3-
Commonwealth to . . . and the defense the opportunity to open the evidentiary record and make a
full and complete record.”
Lieutenant Joseph Penkey then testified in more detail regarding the layout of the jail, the
booking area in particular, as well as the jail’s strip search policy. Lieutenant Penkey testified
that the first floor of the facility is “very mixed use” and includes the booking area, some
specialized housing units, the control center, the visitor center, as well as some disciplinary and
administrative segregation. Other floors contain the general population units. Inside the booking
area there are twelve individual cells, three slightly larger cells that can each hold three
detainees, and four “fairly large cells” that can hold larger groups of detainees.
There is a small area with about eighteen to twenty seats in front of the booking counter
where people waiting to be processed, waiting to see a magistrate or waiting to be released or go
to court, may sit. People sitting in the booking area are not handcuffed unless their behavior
requires it. Nearby is a bank of phones where detainees are permitted to make phone calls.
Lieutenant Penkey noted that inmates from the general population may be held in the segregation
units or sober living unit on the first floor. Additionally, a general population inmate is usually
assigned to clean the booking cells at night.
As for the jail’s strip search policy, Lieutenant Penkey testified that when arrestees first
arrive at the detention center, they are brought into a vehicle sally port where a deputy searches
their outer clothing and pockets and takes certain property for safekeeping. If the arrestee is
being charged with weapon or drug charges or weapons or drugs are found during the initial
search of the arrestee, the deputy would contact the booking sergeant for a determination of
whether the person should be strip searched. Once it is determined that a prisoner will be strip
searched, the prisoner is escorted to a specific room for the search. If a detainee is not going to
-4-
be strip searched, he is taken to the booking area to wait to see the magistrate and then continues
with the classification process. This process can take several hours.
Prisoners waiting to see a magistrate sit in the open booking area rather than in the group
cells. Once they complete their initial processing, detainees usually are placed in group cells.
Detainees granted bail usually remain in booking for about a day to give them an opportunity to
make bail before being sent to general population. When detainees exit their cells to use the
showers or the telephones, they may be in the same vicinity as the detainees awaiting booking
who sit in the seats across from the booking desk. Detainees awaiting booking are also allowed
to walk into the bathroom, which is located in a unit adjacent to the booking station. Normally
four deputies work in the booking area. On average, about 25 detainees are in the booking area
either in the cells or waiting to be processed in or out of the jail.
At the conclusion of the second hearing, the trial court granted appellee’s motion to
suppress the drugs found as a result of the strip search, holding that Florence was distinguishable
and that this Court’s decision in King v. Commonwealth, 49 Va. App. 717, 723, 644 S.E.2d 391,
394 (2007), governed the present case. This appeal followed.
II. Analysis
We review the evidence “in a light most favorable to [appellee], the prevailing party
below, and we grant all reasonable inferences fairly deducible from that evidence.”
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991) (quoting
Commonwealth v. Holloway, 9 Va. App. 11, 20, 384 S.E.2d 99, 104 (1989)). “‘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.” McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States,
517 U.S. 690, 691 (1996)). “In performing such analysis, we are bound by the trial court’s
-5-
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.” Id. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
“Under the Fourth Amendment, an officer’s authority to conduct a ‘full search’ incident
to arrest ‘is only skin deep.’” Craddock v. Commonwealth, 40 Va. App. 539, 548, 580 S.E.2d
454, 459 (2003) (quoting Commonwealth v. Gilmore, 27 Va. App. 320, 328, 498 S.E.2d 464,
468 (1998)). “A different set of legal principles governs institutional searches of pretrial
detainees being processed for admission in the general population of a penal facility.” Id. at 549,
580 S.E.2d at 459. Even in the detainee context, “The Fourth Amendment prohibits only
‘unreasonable searches and seizures,’ Anderson v. Commonwealth, 20 Va. App. 361, 363, 457
S.E.2d 396, 397 (1995), not reasonable ones.” King v. Commonwealth, 49 Va. App. 717, 723,
644 S.E.2d 391, 394 (2007).
“The test of reasonableness . . . is not capable of precise definition
or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559
(1979). For every case, this test “requires a balancing of the need
for the particular search against the invasion of personal rights that
the search entails.” Id. Moreover, “[c]ourts 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.”3 Id.
King, 49 Va. App. at 723, 644 S.E.2d at 394 (footnote added).
The central issue before the Court is the applicability of Florence and the correct legal
standard to be applied to determine the constitutionality of the Alexandria Detention Center’s
strip search of appellee. At the outset, we note that a strip search that involves a stranger peering
3
We note that among the various types of searches performed on arrestees or detainees,
the type of search involved in the present case constituted a “visual body cavity search,” which
goes beyond a standard “strip search” (an “‘inspection of a naked individual, without any
scrutiny of his body cavities’”) and “‘extends to a visual inspection of the anal and genital
areas.’” Craddock, 40 Va. App. at 548, 580 S.E.2d at 459 (quoting Kidd v. Commonwealth, 38
Va. App. 433, 446, 565 S.E.2d 337, 343 (2002)).
-6-
without consent at a naked individual, and in particular at the most private portions of that
person’s body, is a serious invasion of privacy. The Supreme Court has said, in respect to a
schoolchild (and a less intrusive search), that the meaning of such a search, and the degradation
its subject may reasonably feel, place a search that intrusive in a category of its own demanding
its own specific suspicions. Safford Unified School Dist. #1 v. Redding, 557 U.S. 364 (2009).
The Commonwealth argues that Florence announced a broad rule authorizing blanket
policies for strip searches of classes of detainees - without requiring reasonable suspicion to strip
search individual detainees - in order to ensure jail security. Further, the Commonwealth asserts
that the trial court failed to apply the correct legal standard to its assessment of the jail’s policy in
this case, which requires that “deference must be given to the officials in charge of the jail unless
there is ‘substantial evidence’ demonstrating their response to the situation is exaggerated.”
Florence, 132 S. Ct. at 1518 (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)).
Appellee, however, argues that Florence does not apply to the facts of this case because its
holding does not extend to detainees whose detention statuses have not been reviewed by a
magistrate and who are held separately from the general population of a jail.
In Florence, the Supreme Court addressed the question of “whether undoubted security
imperatives involved in jail supervision override the assertion that some detainees must be
exempt from the more invasive search procedures at issue absent reasonable suspicion of a
concealed weapon or other contraband.” Id. The petitioner in Florence was arrested on an
apparently outdated arrest warrant for a failure to appear at an enforcement hearing and taken
first to a detention center and then transferred to a correctional facility before the warrant was
ultimately dismissed and he was released. Id. at 1514. At both facilities, petitioner was
subjected to visual body cavity searches pursuant to the facility procedures requiring these
searches of all detainees regardless of the circumstances of their arrests, their suspected offenses,
-7-
behavior, demeanor, or criminal history. Id. Petitioner argued that “persons arrested for a minor
offense could not be required to remove their clothing and expose the most private areas of their
bodies to close visual inspection as a routine part of the intake process.” Id. at 1514-15. “Rather
. . . officials could conduct this kind of search only if they had reason to suspect a particular
inmate of concealing a weapon, drugs, or other contraband.” Id. at 1515. The Court upheld the
searches and policies behind them, holding that “every detainee who will be admitted to the
general population may be required to undergo a close visual inspection while undressed.” Id. at
1513.
In support of its holding, the Court underscored the “importance of deference to
correctional officials” and acknowledged their “significant interest in conducting a thorough
search as a standard part of the intake process.” Id. at 1516, 1518. Citing several studies, the
Court discussed the health and safety reasons supporting policies requiring strip searches for
detainees prior to their admission into a detention facility, and concluded that
[i]t is not surprising that correctional officials have sought to
perform thorough searches at intake for disease, gang affiliation,
and contraband. Jails are often crowded, unsanitary, and
dangerous places. There is substantial interest in preventing any
new inmate, either of his own will or as a result of coercion, from
putting all who live or work at these institutions at even greater
risk when he is admitted to the general population.
Id. at 1520. As extensively discussed in Florence, the proliferation of drugs or weapons
throughout a jail presents a serious security and health risk to all detainees and employees of the
facility. “The difficulties of operating a detention center must not be underestimated by the
courts.” Id. at 1515 (citing Turner v. Safley, 482 U.S. 78, 84-85 (1987)). “Detecting contraband
concealed by new detainees . . . is a most serious responsibility. Weapons, drugs, and alcohol all
disrupt the safe operation of a jail.” Id. at 1519 (citation omitted). Drugs pose a specific risk in
that “[t]he use of drugs can embolden inmates in aggression toward officers or each other; and,
-8-
even apart from their use, the trade in these substances can lead to violent confrontations.” Id.
(citation omitted). Indeed, “[s]omething as simple as an overlooked pen can pose a significant
danger. Inmates commit more than 10,000 assaults on correctional staff every year and many
More among themselves.” Id. (citing Dept. of Justice, Bureau of Justice Statistics, J. Stephan &
J. Karberg, Census of State and Federal Correctional Facilities, 2000, p. v (2003)).
Given these serious concerns, the Court rejected petitioner’s argument that more invasive
strip searches need not be conducted for detainees not arrested for a serious crime or on weapon
or drug charges because “the seriousness of the offense is a poor predictor of who has
contraband” and “it would be difficult in practice to determine whether individual detainees fall
within the proposed exception.” Id. at 1520. Thus, Florence set forth a general rule that
detainees being admitted to the general population of a jail facility could be strip searched
without individualized reasonable suspicion regardless of the severity of the charges they faced.
Id. at 1513.
The Commonwealth argues that Florence directly applies to the case at hand and
authorizes the type of visual body cavity search to which appellee was subjected. We agree. In
the present case, appellee was transported to the Alexandria Detention Center booking area,
which may be populated by around 25 other detainees in various stages of the commitment
process at any given time. The detainees in the booking area may be awaiting their appearance
before a magistrate, awaiting payment of bond, going through the classification and assessment
process before admission to the general population, or waiting to go to court. These detainees
are not necessarily handcuffed and wait either in rows of plastic chairs in the common booking
area, or held in group or individual cells on the first floor of the facility. The group cells hold a
minimum of three detainees at any given time. “Most of the time,” detainees held in the booking
area are placed in the group cells rather than the individual cells, which are generally reserved
-9-
for detainees whose medical or behavioral status requires their isolation. Detainees are allowed
to exit their cells, without handcuffs, to shower, use the bathroom, or make telephone calls.
During those times they are usually escorted by officers; however there are usually only four
deputies working in the booking area.
General population inmates also travel through the booking area and other areas of the
first floor. Some are held in the segregation or sober living unit and others may be assigned to
clean the cells in the booking area at night. Additionally, general population inmates may pass
through the booking area on their way to and from court.
The facts of this case align with, and therefore our conclusion is guided by, Florence.
While appellee was not yet being processed into the “general population” of the jail, he was
being admitted to the booking area where he would commingle with detainees who committed
crimes ranging in severity, were at various stages of the booking or commitment process, and all
of whom presented possible opportunities for appellee to “pass off” the drugs hidden on his
person.  Maintaining safety and order at correctional institutions requires the expertise of
correctional officials, who must have substantial discretion to devise reasonable solutions to the
problems they face. The Florence decision has confirmed the importance of deference to
correctional officials and explained that a regulation impinging on an inmate’s constitutional
rights must be upheld if it “has a ‘valid, rational connection’ to a legitimate governmental
interest.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (quoting Turner, 482 U.S. at 89-91).
We find that from the very well developed record in this matter and the particular facts
presented, Florence authorizes a strip search here and therefore, the trial court erred by granting
appellee’s motion to suppress.
Reversed and remanded.
- 10 -