Marron Franklin Anthony Nowlin v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
MARRON FRANKLIN ANTHONY NOWLIN
MEMORANDUM OPINION* BY
v. Record No. 3050-05-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 12, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
Joan C. Ruff, Senior Assistant Public Defender, for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
Appellant, Marron Franklin Anthony Nowlin (Nowlin), was convicted of possession of
cocaine. He appeals his conviction and argues that the trial court erred by denying his motion to
suppress because the police conducted a warrantless strip and body cavity search. Finding no
error, we affirm the judgment of the trial court.
BACKGROUND
On appeal of the denial of a motion to suppress, we consider the evidence adduced at
both the suppression hearing and the trial, DePriest v. Commonwealth, 4 Va. App. 577, 583, 359
S.E.2d 540, 542-43 (1987), and we view that evidence in the light most favorable to the
Commonwealth, Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48
(1991). “[W]e are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or
without evidence to support them,” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
259, 261 (1997) (en banc), but we review de novo the trial court’s application of defined legal
standards such as reasonable suspicion and probable cause to the particular facts of the case, see
Ornelas v. United States, 517 U.S. 690, 699 (1996).
On March 26, 2005, Officers Seth Weinstein and Kha Le were dispatched to an
apartment building after Nowlin’s wife contacted the police, informing them Nowlin was armed
and under the influence of drugs. Prior to arriving at the scene, Weinstein learned there was an
outstanding warrant against Nowlin.
Weinstein apprehended Nowlin, handcuffed him, and placed him in his police cruiser,
intending to transport him to the police station for booking. Another officer on the scene
informed Weinstein that Nowlin’s wife reported Nowlin was concealing cocaine in his buttocks
area.
Weinstein and Le took Nowlin to an area hidden from public view. Weinstein pulled
Nowlin’s pants and underwear straight out from his body and shined a flashlight in the area.
Weinstein observed a clear plastic bag protruding several inches from between Nowlin’s
clenched buttocks. Based on his experience and the information received from Nowlin’s wife,
Weinstein suspected the bag contained narcotics. Le reached into Nowlin’s pants, grabbed the
protruding portion of the bag, and removed the item. The bag contained eleven rocks of crack
cocaine.
ANALYSIS
Nowlin argues he was subjected to an impermissible, warrantless strip and body cavity
search.
We note that the Fourth Amendment proscribes only “unreasonable searches and
seizures,” McNair v. Commonwealth, 29 Va. App. 559, 563, 513 S.E.2d 866, 868 (1999) (en
banc), not reasonable ones. A standard “not capable of precise definition or mechanical
-2-
application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), reasonableness hinges on the facts of
each case. Depending upon the circumstances, reasonableness may permit police officers to
conduct warrantless searches ranging from “a generalized search of the person to the more
intrusive strip search or body cavity search.” Hughes v. Commonwealth, 31 Va. App. 447, 455,
524 S.E.2d 155, 159 (2000) (en banc).
“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).
McCloud v. Commonwealth, 35 Va. App. 276, 282-83, 544 S.E.2d 866, 868-69 (2001).
Strip Search
In McCloud, this Court declined to treat a search as an improper strip search when the
evidence established that the officers only “pulled back [McCloud's] underwear in the front.” 35
Va. App. at 279, 544 S.E.2d at 867. There, we noted that “[w]e have found no cases, nor has
appellant cited any, that include ‘arranging’ of the suspect’s clothing in a definition of ‘strip
search.’” Id. at 282, 544 S.E.2d 868. Similarly, in this case, Weinstein pulled back the
waistband of appellant’s underwear and looked inside, immediately spotting the bag containing
narcotics.
Nowlin’s reliance on Kidd v. Commonwealth, 38 Va. App. 433, 565 S.E.2d 337 (2002),
is misplaced. In Kidd, the officer conducting the search “[l]ook[ed] into Kidd’s underwear for
drugs” and “inspect[ed] Kidd’s partially-naked body.” Id. at 446, 565 S.E.2d at 343. In this
case, the evidence indicates that the officers could not see Nowlin’s genitals or anus when
pulling back his underwear. Thus, as in McCloud, and unlike in Kidd, the officers did not view
Nowlin’s genital or anal area and he simply was not subjected to a “strip search.”
-3-
Body Cavity Search
In Hughes, upon which Nowlin relies, we held Hughes was subjected to a visual and
physical body cavity search when the police
had Hughes bend over to expose his anus, enabling [the officer] to
visually inspect the anus. The visual search became more intrusive
when [the officer] “told” Hughes to cough in order to expand the
officer’s view of the anus and an even more intrusive physical
body cavity search when [the officer] removed the plastic bag from
Hughes’ anal cavity.
Hughes, 31 Va. App. at 455-56, 524 S.E.2d at 159.
In this case, Weinstein and Le merely looked into Nowlin’s underwear and immediately
observed a bag protruding several inches from Nowlin’s clenched buttocks, not his anal cavity.
The officers neither viewed nor touched Nowlin’s anus or anal cavity. Instead, Le touched only
the protruding portion of the bag and removed the item from Nowlin’s underwear. Therefore,
the officers did not subject Nowlin to either a visual or physical body cavity search.
Exigent Circumstances
Nowlin properly notes that “a warrantless search involving a bodily intrusion, even
though conducted incident to a lawful arrest, violates the Fourth Amendment unless (1) the
police have a ‘clear indication’ that evidence is located within a suspect’s body and (2) the police
face exigent circumstances.” Commonwealth v. Gilmore, 27 Va. App. 320, 330-31, 498 S.E.2d
464, 469 (1998). However, Nowlin’s argument that the search in this case failed to meet these
two conditions is unavailing under the facts of this case, as no strip or body cavity search
occurred.
For the reasons noted above, the trial court did not err by denying Nowlin’s motion to
suppress the evidence obtained during the search incident to his arrest. Therefore, we affirm the
decision of the trial court.
Affirmed.
-4-