VA: Roadside partial strip search too intrusive and unreasonable

A roadside search ended up with officers searching in the back of defendant’s underwear looking for an object that could be felt but not retrieved because he clenched his buttocks. His shorts fell down but not his underwear. It was drugs found at the jail. This strip search on the roadside was too intrusive. Hubbard v. Commonwealth, 2024 Va. App. LEXIS 137 (Mar. 12, 2024):

The standard for assessing the constitutionality of warrantless intrusive bodily searches under the Fourth Amendment is higher than it is for other types of warrantless searches. First, the officer conducting the search must have a clear indication that the concealed object is present. Second, exigent circumstances must justify the search. Finally, the search must be conducted in a reasonable manner, consistent with the Fourth Amendment. Applying the test for intrusive searches here, we agree with the trial court that officers had a clear indication that drugs were likely present in Hubbard’s bottom. But we disagree with the trial court that exigent circumstances existed based on the mere speculation that the concealed item could have contained fentanyl. We cannot find support in the record for any other exigent circumstances without the development of other facts—a task we cannot take up on appeal. Finally, while Hubbard waived his right against warrantless searches of his person in a prior plea agreement, we have already held that a general consent to a warrantless search does not include an intrusive search of private areas. Thus, the Fourth Amendment requires reversal.