VA: Retrieving drugs from def’s underwear wasn’t unreasonable

Retrieving a bag of drugs from defendant’s underwear with probable cause was still reasonable. The court of appeals erred in reversing. Commonwealth v. Hubbard, 2025 Va. LEXIS 44 (Sep. 11, 2025) (revg Hubbard v. Commonwealth, 80 Va. App. 384, 898 S.E.2d 386 (2024) (posted here)):

… We are confident that the meta principle — “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” U.S. Const. amend. IV — provides sufficient guidance to determine whether Officer Waterman’s retrieval of the bag of drugs from Hubbard’s underwear was reasonable under the circumstances of this case. After hearing the evidence and weighing the credibility of the witnesses, the trial court held it was legally and factually reasonable. Applying the governing Fourth Amendment principles and viewing the record through the proper standard of appellate review, we agree.

The evidence established that the physical search of Hubbard occurred after the officers had probable cause to arrest him for drug possession due to the smell of marijuana and the discovery of marijuana shake and suspected bags of controlled substances in the vehicle. See generally Maryland v. Pringle, 540 U.S. 366, 372 (2003) (finding probable cause for arresting “any or all three of the occupants” in a vehicle for the “crime of possession of cocaine, either solely or jointly”). The officers thus had the authority to conduct a search incident to arrest.

During this search, Officer Waterman did not undress Hubbard fully or partially. His naked body was never exposed to the public. The officer discovered the “large rock-like object,” J.A. at 123, while Hubbard was fully clothed. At that time, the officer was patting down the outside of Hubbard’s underwear underneath his shorts. The officer later pulled the waistband of Hubbard’s underwear out far enough to see the suspected bags of contraband and retrieve them. At no point were Hubbard’s underwear pulled down or off. The bags of cocaine were “just sitting down between [Hubbard’s] buttocks and his underwear.” Id. at 298; see also id. at 126. The bags were not “up inside of his anus.” Id. at 126. The officer could easily see the bags and “didn’t have to go inside his buttocks to feel the item.” Id. at 332. The plastic bag (containing 87 smaller baggies) was not damaged and did not have “bodily fluid or other bodily items” on it. Id. at 135.