Supreme Court of Virginia Addresses Fourth Amendment Limits on Intrusive Searches Incident to Arrest
Commonwealth v. Hubbard, Record No. 240310 (Va. Sept. 11, 2025)
Officer Waterman stopped Shanta Orlando Hubbard’s rental truck after observing dangerous driving and noticing dark window tint. During the stop, the officer detected a marijuana odor and discovered that Hubbard had previously agreed to waive his Fourth Amendment rights as part of a 2012 plea agreement. The officer searched the vehicle and found marijuana residue and suspicious bags of white and brown powder. When searching Hubbard personally, Officer Waterman discovered approximately $2,000 in cash. These factors—drugs in the vehicle, large amounts of cash, and the rental car leaving a high-crime area early morning—heightened the officer’s suspicions about drug trafficking. The critical moment came when Officer Waterman conducted what he called a protective search of Hubbard’s groin and buttocks area. Using the blade of his hand outside Hubbard’s underwear, the officer felt what he described as a “large rock-like object” that seemed like drugs. When Hubbard began physically resisting and trying to reach for the item, Officer Waterman pulled back the waistband of Hubbard’s underwear and visually located a plastic bag containing cocaine and crack cocaine.
Hubbard filed a motion to suppress this evidence, which the trial court denied. It found that the officer had sufficient justification based on the cash, marijuana evidence, and potential danger from fentanyl exposure. The trial judge concluded that exigent circumstances justified the intrusive search. The Court of Appeals of Virginia reversed this decision, applying a “heightened standard” for intrusive bodily searches. The Court of Appeals recognized that Officer Waterman had a clear indication that Hubbard was concealing drugs but disagreed that true exigent circumstances existed. The Supreme Court of Virginia, however, reversed the Court of Appeals and reinstated the conviction.
In its opinion, the Supreme Court recognized the fundamental tension in Fourth Amendment law between two competing principles. On one side, is the well-established rule that police can search an arrested person without a warrant—a “search incident to arrest.” This doctrine has existed for over a century and generally allows officers broad authority to search arrestees for weapons and evidence. On the other side, is the principle that highly intrusive bodily searches require special justification because they can violate human dignity and privacy in particularly offensive ways. Courts typically categorize these searches into strip searches, visual body cavity searches, and manual body cavity searches, with each category requiring increasingly stronger justification.
But, rather than getting bogged down in technical distinctions between different types of body searches, the Supreme Court focused on the overarching Fourth Amendment principle of “objective reasonableness.” The Supreme Court emphasized several key factors that made Officer Waterman’s actions reasonable. First, Hubbard was never fully undressed or publicly exposed—his underwear remained on throughout the search. Second, the officer had probable cause to arrest Hubbard for drug possession before the intrusive search occurred. Third, and perhaps most importantly, the court found compelling safety justifications for the officer’s actions.
The Supreme Court was particularly persuaded by Officer Waterman’s testimony about a previous incident where he had delayed removing suspected drugs from an arrestee’s underwear. In that earlier case, the bag burst during transport, causing the person to overdose in the police vehicle. This personal experience, combined with department instructions not to field-test white powder due to fentanyl dangers, provided concrete rather than theoretical justification for immediate action. The Supreme Court also noted that Hubbard was actively resisting the search, creating a foreseeable risk that he might damage or destroy the evidence. Preventing destruction of evidence is a well-recognized “exigent circumstance” that can justify otherwise problematic police actions.
Finally, the Supreme Court rejected any inquiry into Officer Waterman’s subjective motivations. Hubbard had argued that the officer was really relying on the Fourth Amendment waiver rather than proper constitutional analysis. However, the Supreme Court applied the established principle that Fourth Amendment reasonableness depends solely on objective circumstances, not on what the officer was thinking.