                      COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia


LYNN TAYLOR, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0961-00-2                  JUDGE RICHARD S. BRAY
                                               JUNE 5, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge

           Gregory W. Franklin, Assistant Public
           Defender, for appellant.

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


     Lynn Taylor, Jr. (defendant) was convicted in a bench trial

for possession of cocaine with intent to distribute, a violation

of Code § 18.2-248.   On appeal, he complains the trial court

erroneously denied his motion to suppress evidence

unconstitutionally obtained during a warrantless body cavity

search.   We agree and reverse the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

     In reviewing a trial court's ruling on a suppression motion,

we consider the evidence in the light most favorable to the

prevailing party below, the Commonwealth in this instance,

granting to it all reasonable inferences fairly deducible

therefrom.    Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991).

             "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. 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 v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S.

690, 691, 699 (1996)).    "On appeal, it is the defendant's burden

to show 'that the denial of [the] motion to suppress constitute[d]

reversible error.'"    Moss v. Commonwealth, 30 Va. App. 219, 223,

516 S.E.2d 246, 248 (1999) (citation omitted).

     Viewed accordingly, the instant record discloses that, on

January 11, 2000, Richmond Police Detective Kenneth L. Roane was

conducting an undercover operation intended "to make . . . street

level" controlled buys of cocaine.      A confidential informant "was

set up with audio-video assistance," instructed to engage in

purchases of the drug and transmit a description of the seller to

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a police "technician," assigned to monitor and videotape each

transaction.    In accordance with the established procedure, the

informant purchased cocaine from a drug dealer, later identified

as defendant.    A description of defendant was relayed to an

"arrest team," together with information that defendant was

"dealing [cocaine] from the crotch area," "going in his pants" for

the drugs.

     Instructed to "move in," Officers Bates and Naoroz

apprehended defendant within a few seconds of the alert, and Bates

"conduct[ed] a safety pat down."   Finding nothing, defendant was

handcuffed and placed in the patrol car for transport to police

headquarters.    En route, defendant "was moving his hands about,

sitting on his hands" and "complain[ing] about the handcuffs,"

"doing it so much" that Naoroz, "at least three times[,] . . .

instructed him to stop moving."

     Upon arrival at headquarters, defendant was taken to "the

debriefing area" and interrogated by Bates, Naoroz, and Detective

Kenneth Peterson.    Defendant denied possessing contraband but

continued to "squirm" in his chair.     Recalling a prior arrest of

defendant for distribution of cocaine, Naoroz was aware defendant

had then secreted cocaine in his "buttocks area."    Additionally,

both Naoroz and Peterson noted that illicit drugs are often

concealed in the "anal area," a practice that may endanger the

offender, although neither could cite an incident of health



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problems resulting from the anal placement of drugs, and defendant

had exhibited no difficulties.

     Confronted with such circumstances and unable to locate the

drugs upon a cursory search of defendant, Bates removed

defendant's pants, "search[ed] him" and, finding nothing, "pulled

down his underwear" and visually inspected his buttocks and

crotch, again without result.    Police then directed defendant to

"bend over" and "Detective Peterson . . . grabbed both of his butt

cheeks and spread it open.   At that time [Bates] used [his]

flashlight and looked up and . . . finally saw . . . what [he]

believed to be crack cocaine inside the small baggies."   Bates

then retrieved the offending cocaine from defendant's anus,

resulting in the instant conviction.

                                  II.

     "[A] lawful arrest of a suspect authorizes the police to

conduct 'a full search of the [arrestee's] person.'"   Commonwealth

v. Gilmore, 27 Va. App. 320, 328-29, 498 S.E.2d 464, 468 (1998).

However, "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."    Id. at 330, 498 S.E.2d at 469.

Thus, "[p]robable cause to believe a suspect possesses drugs,

which justifies a search of an individual, does not justify a

. . . body cavity search unless the evidence or circumstances

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specifically provides the officers with a 'clear indication' that

the contraband is concealed in a body cavity."    Hughes v.

Commonwealth, 31 Va. App. 447, 460, 524 S.E.2d 155, 162 (2000) (en

banc).   The requisite "clear indication" must coincide with

"additional exigencies" in justification of an "intrusion[] beyond

the body's surface." 1   Moss, 30 Va. App. at 226, 516 S.E.2d at 249

(citation omitted).

     Accordingly, defendant first contends that the officers did

not have a "clear indication" he "had drugs in his anus."     We

disagree.   Police were aware defendant was "dealing" from the

"crotch area" of his pants and effected the arrest only moments

after the informant had purchased cocaine from him.    In transit to

police headquarters, defendant was restless, "squirming around"

and "sitting on his hands," despite repeated requests to stop.

Based upon experience as police officers, Naoroz and Peterson were

aware that narcotics are often concealed in the anal cavity.

Moreover, Naoroz had discovered drugs hidden in defendant's

"buttocks area" on a prior occasion.    Repeated limited searches of

defendant's person following arrest had revealed no narcotics.

Such circumstances provided a sufficiently "clear indication" that

defendant had hidden the cocaine in his buttocks or "anal area."




     1
       Exigencies expressly recognized in Moss include "the risk
of destruction of evidence, imminent medical harm to the
suspect, or secretion of a weapon." Moss, 30 Va. App. at 226,
516 S.E.2d at 249.

                                - 5 -
     Defendant next maintains that the instant circumstances

failed to demonstrate the exigency component indispensable to

support a warrantless body cavity search.    In response, the

Commonwealth relies upon health concerns related to the absorption

of cocaine into defendant's body through the anal cavity to infuse

the requisite exigency.

     Here, like Moss, the record does not reflect either a threat

to the evidence or defendant's health resulting from any delay

attendant to issuance of a search warrant.    Defendant was in

custody and easily monitored, and no evidence suggests an

impediment to a proper warrant.   Moreover, adoption of the

Commonwealth's argument would judicially countenance warrantless

body cavity searches upon every "clear indication" that drugs were

concealed within body cavities, a result clearly at odds with

existing precedent.

     Thus, despite a clear indication that narcotics would be

found within defendant's anal cavity, the absence of attendant

exigent circumstances precluded the warrantless search.

Accordingly, the trial court erroneously denied defendant's motion

to suppress the disputed evidence, and we reverse the conviction,

remanding for further proceedings if the Commonwealth be so

advised.

                                         Reversed and remanded.




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