                                                                      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UNPUBLISHED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 -
