                       COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


WILLIE LOUIS JOHNSON
                                              MEMORANDUM OPINION * BY
v.   Record No. 2617-99-1                     JUDGE NELSON T. OVERTON
                                                  AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                     AND COUNTY OF JAMES CITY
                 Samuel Taylor Powell, III, Judge

          Deborah M. Wagner (McDermott & Roe, on
          brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Willie Louis Johnson, appellant, appeals his conviction for

possession of cocaine.   On appeal, he contends the trial court

erroneously denied his motion to suppress "evidence seized by

police pursuant to an unauthorized strip search" in violation of

"his Fourth Amendment rights."    We disagree, and affirm the

conviction.

                            I.   BACKGROUND

     "In reviewing a trial court's denial of a motion to suppress,

'the burden is upon the defendant to show that the ruling, when

the evidence is considered most favorably to the Commonwealth,

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
constituted reversible error.'"    McGee v. Commonwealth, 25 Va.

App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation

omitted).   "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."    Hayes v.

Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999)

(citation omitted).   "In performing such analysis, we 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, 25 Va. App. at 198, 487

S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 699

(1996)).

     On June 14, 1999, the trial court heard evidence on

appellant's suppression motion.    Investigator Peterson testified

that he executed a search warrant at 126 Jackson Street on January

24, 1999.   Upon entry, police officers located appellant asleep on

a sofa and handcuffed him.   Appellant "was wearing only a pair of

pants."    Peterson "took his pants down."   "In his pants [Peterson]

found a metal smoking device, a small metal smoking device."

Appellant wore no underwear, and the object was located in the

"gap between the fold of the leg, like the split, a little

section, when you pulled [his pants] down you could see it sitting

right there."   Peterson explained that he took appellant's pants

down because he was "[l]ooking for contraband and hidden smoking

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devices and any drugs."    According to Peterson, persons involved

with narcotics "[c]ommonly put the smoking devices in their pants

or belt area or in the crack of the buttock . . . for concealment

purposes."   At the time of the search there were no females

present and appellant's pants were pulled down "[t]o his knee

area" for "a matter of seconds."

     Although appellant was not specifically named in the search

warrant, the search warrant authorized the search of all persons

present at the location and was directed at locating cocaine,

currency, drug paraphernalia and firearms.   Peterson indicated

that the search included all persons upon the property.

     In argument to the trial court, appellant contended that the

strip search was unreasonable and, therefore, unconstitutional.

Appellant also asserted that Peterson "was in no fear for his

safety."   However, appellant conceded that he was "in a home and

under a search warrant."

     The trial court ruled that "[i]t's not a strip search,"

because the officer "pulled his pants down" and did not take "all

of his clothes off."   Noting the brevity and minimal intrusiveness

of the search, and the officer's testimony that people involved in

drugs often store drugs "in their clothes," the trial court found

the search reasonable "under the circumstances."

     Appellant never attacked the validity of the warrant

authorizing the search of all pesons present or the affidavit(s)

upon which the magistrate relied to issue it.    Moreover, the

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record contains neither the search warrant nor the supporting

affidavit(s).

                           II.   DISCUSSION

     The Fourth Amendment to the United States Constitution

guarantees "[t]he right of the people to be secure in their

persons, house, papers, and effects, against unreasonable

searches and seizures."    U.S. Const. amend. IV; see also Va.

Const. art. I, § 8.

                          A. Burden of Proof

     In Lebedun v. Commonwealth, 27 Va. App. 697, 710-11, 501

S.E.2d 427, 433-34 (1998), we addressed which party has the

burden of proof when a defendant moves to suppress evidence that

was seized pursuant to a search warrant.       We held that

          the government bears the burden to justify a
          warrantless search as an exception to the
          warrant requirement. However, a presumption
          of validity attaches when a search is
          conducted pursuant to a warrant issued by a
          neutral and detached magistrate or judicial
          officer. Therefore, where the police
          conduct a search pursuant to a judicially
          sanctioned warrant, the defendant must rebut
          the presumption of validity by proving that
          the warrant is illegal or invalid.

Id. at 711, 501 S.E.2d at 434 (citations omitted).       Thus,

appellant bears the burden of establishing that the search was

beyond the scope of the warrant and unreasonable.       See id.; see

also United States v. Taylor, 882 F.2d 1018, 1032-33 (6th Cir.

1989) (holding that motion to suppress properly denied where

defendant "failed to carry his burden of demonstrating that the

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[evidence] was in fact obtained by a search beyond the scope of

the warrant").

                            B.   Analysis

      We are faced with the question whether removing the outer

pants of the target of a search warrant was an unreasonable

search.

      The scope of a lawful search is "defined by the object of

the search and the places in which there is probable cause to

believe that it may be found."     United States v. Ross, 456 U.S.

798, 824 (1982).   In order to determine whether a search is

reasonable, the individual's Fourth Amendment interest must be

weighed against the necessity for a particular type of search.

See Bell v. Wolfish, 441 U.S. 520, 559 (1979) (approving visual

strip-searches of pretrial detainees even though there was no

probable cause to believe the person possessed contraband or

weapons).   In Wolfish, the Supreme Court explained the procedure

for determining the reasonableness of a search:

            In each case it requires a balancing of the
            need for the particular search against the
            invasion of personal rights that the search
            entails. Courts 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.

Id.




                                 - 5 -
     Here, the search warrant authorized the search of all

persons present.   We have approved such warrants when adequately

supported by information provided to the issuing magistrate.

See Morton v. Commonwealth, 16 Va. App. 946, 950, 434 S.E.2d

890, 893 (1993) (following examination of factual allegations

contained in the affidavits, holding that "probable cause

existed to search all of the persons found inside the apartment

when the warrant was executed").   Because the record does not

contain a copy of the search warrant or the accompanying

affidavit(s), and because appellant failed to contest the

validity of the warrant, we are constrained to find that the

warrant was valid and based upon adequate probable cause to

search all persons present.   Moreover, we are unable to

determine what information the police possessed and presented to

the issuing magistrate.

     Absent the warrant or affidavit(s) and applying the test

put forth in Wolfish, we find that appellant has failed to

demonstrate that the search was beyond the scope of the warrant

or was unreasonable.    Although the scope of the search involved

taking appellant's pants down to his knees, the search was

brief, lasting seconds, and it did not require removing all of

appellant's clothing.   Upon these facts, we find the search

minimally intrusive.    The officers could not have been aware

that appellant was not wearing underwear under his blue jeans.

The objects of the warrant and the search included illegal drugs

                                - 6 -
and paraphernalia, things that are easily concealed.

Investigator Peterson was aware from past experience that such

items are often concealed inside the inner waistband of a

suspect's trousers.   Finally, the search was conducted inside

the house and a limited number of officers were present, none of

whom were females.

                            CONCLUSION

     Absent a copy of the search warrant or affidavit(s) so we

can review the basis for issuance of the search warrant,

appellant has failed to establish that the search was beyond the

scope of the warrant or that the search was unreasonable.

Because the search was reasonable and based on a valid warrant

supported by probable cause, we affirm the trial court.

                                                           Affirmed.




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Coleman, J., dissenting.

     The majority holds that the police officer's "removing the

outer pants of the target of a search warrant" was reasonable

under the Fourth Amendment because the search was based on an

"all persons present" search warrant and because the search was

"minimally intrusive" under the circumstances.    I disagree with

the majority that the search was reasonable under the facts of

this case.   In my opinion, the search was not reasonable because

neither the search warrant nor the circumstances preceding the

search provided probable cause to strip search the appellant.

The search warrant, which specifically named two people to be

searched at the residence, did not mention Johnson; it specified

the residence to be searched, two named individuals, and "all

persons present" at the residence.     The circumstances

surrounding the appellant when the James City County swat team

was executing the search warrant provided no individualized

probable cause or reason to suspect that the appellant possessed

drugs, weapons, or other contraband, much less a "clear

indication" that the appellant might be secreting drugs on his

person in a manner to justify strip searching him.    Accordingly,

I dissent from the majority's holding.

     The trial court held that the search of appellant was "not

a strip search."   The Attorney General, on brief and at oral

argument, defends the trial court's ruling that the search of

appellant was not a strip search.    Now, the majority carefully

                               - 8 -
avoids characterizing the search of appellant as a strip search

and concludes that the search was "minimally intrusive."     By

doing so, the majority disregards our prior holdings which

require a "clear indication" that the suspect has secreted the

contraband at a location where a strip search is necessary to

find it.    The trial court and majority concluded that the search

was not a strip search because "it did not require removing all

of appellant's clothing."   Here, the officers lowered the

appellant's blue jeans to his knees exposing his genitalia and

buttocks.   In my view, that constitutes a strip search and,

thus, our holdings in Moss v. Commonwealth, 30 Va. App. 219, 516

S.E.2d 246 (1999), Taylor v. Commonwealth, 28 Va. App. 638, 507

S.E.2d 661 (1998), and Commonwealth v. Gilmore, 27 Va. App. 320,

498 S.E.2d 464 (1998), although involving warrantless searches,

are applicable and controlling.

            [S]trip searches require special
            justification since they are peculiarly
            intrusive. . . . In each case we must
            balance the need for the particular search
            against the invasion of personal rights that
            the search entails. Courts 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.

Taylor, 28 Va. App. at 642, 507 S.E.2d at 663-64 (internal

quotations and citations omitted).      We further explained the

"special justification" requirement for a strip search

enunciated in Taylor, when we held in Moss that "clear


                                - 9 -
indication" must exist that the evidence or contraband is

secreted on the person to justify a strip search.    See Moss,

30 Va. App. at 224-25, 516 S.E.2d at 249 (adopting the "clear

indication" requirement for body cavity searches which we

announced in Gilmore).    As we stated in Moss, for a strip search

to be lawful under the Fourth Amendment, the officers must have

a "clear indication" that evidence is at a location on the

suspect's body that justifies a strip search and "'the means and

procedures employed by the authorities to conduct a search

involving an intrusion into the body [or strip search] must also

satisfy relevant Fourth Amendment standards of reasonableness.'"

Id. (quoting Gilmore, 27 Va. App. at 330-31, 498 S.E.2d at 469).

Strip searches are demeaning and may be dehumanizing.   Because

no "clear indication" existed in Moss to believe that the

defendant had secreted drugs on his body, we held that the strip

search was unjustified and impermissible.   We did not reach

whether it was conducted in a reasonable manner under the

circumstances.

     Here, Johnson was asleep on a couch when the officers

entered the residence to execute the search warrant.    He was not

named in the search warrant as a person to be searched.   The

officers did not observe any furtive movements or have any

specific reason to believe that Johnson possessed drugs, much

less that he was secreting them in a place that would justify a

strip search.    Johnson did not resist, made no attempt to flee,

                               - 10 -
and made no statement justifying a belief that he possessed

drugs.      The officers did not frisk Johnson, instead they

immediately lowered his pants.     As the majority notes, the only

reason given by the officer to justify the strip search was that

"from past experience . . . such items are often concealed

inside the inner waistband of a suspect's trousers."     If that

reason provides justification for a strip search, then every

warranted search or every warrantless search in which probable

cause of possession existed would justify a strip or body cavity

search. 1    "Searches may not be conducted on the '"mere chance

that desired evidence might be obtained."'"      Taylor, 28 Va. App.

at 643, 507 S.E.2d at 664 (citations omitted).

     The trial judge erred, in my opinion, in not holding that

the search was a strip search and that the search was

unreasonable and in violation of the Fourth Amendment.     For

these reasons, I would reverse the conviction and dismiss the

indictment.




     1
       The majority contends that appellant never attacked the
validity of the "all persons present search warrant." To the
contrary, the appellant, citing Ybarra v. Illinois, 444 U.S. 85,
88 (1979), makes an even broader challenge to the authority of
the officers to search him at all where there is no
particularized probable cause to believe that he possessed drugs
or was engaged in drug activity. While I would also hold that
the "all persons present" warrant did not provide probable cause
to search Johnson when they were executing the warrant without
some particularized reason to suspect that he possessed drugs,
the more compelling issue is the unreasonableness of the strip
search.

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