Cole v. Commonwealth, 294 Va. 342

Background

On April 8, 2014, Alexandria police arrested Abdul Rahman Cole on an outstanding warrant and charged him with an open container and possession of marijuana; an inventory search of his car produced marijuana and other items.
At the jail, a deputy authorized a strip search based on the drug-related charge; during the search Cole refused to squat, officers observed a plastic bag protruding from his anus, and Cole put the bag in his mouth before it was recovered.
The bag contained 14 "bag corners" of suspected crack cocaine; five were tested and confirmed as cocaine totaling 5.1606 grams; the remaining nine untested corners weighed 5.2905 grams (packaging weight included).
Cole moved to suppress evidence from the strip search, arguing Florence v. Board of Chosen Freeholders did not authorize suspicionless strip searches of detainees who had not yet been assigned to general population and who were arrested for minor offenses.
The circuit court granted suppression; on pretrial appeal the Court of Appeals reversed, citing Florence and the mixed-use booking area; Cole was tried, convicted of possession with intent to distribute, and appealed.
The Virginia Supreme Court held the Court of Appeals erred to the extent it refused to reconsider its pretrial ruling on direct appeal, but affirmed the Court of Appeals’ substantive holding that the strip-search evidence was admissible and that the conviction was supported by sufficient evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of Appeals was bound by "law of the case" and thus barred from reconsidering its pretrial ruling on a direct appeal after conviction	Cole: Court of Appeals erred in invoking law of the case to refuse reconsideration	Commonwealth: Court of Appeals had authority but does not contest reconsideration; argues conviction should be affirmed on other grounds	Court: Statutes permit reconsideration on direct appeal; Court of Appeals erred to refuse reconsideration (reversed on this narrow point)
Whether the warrantless strip search at booking violated the Fourth Amendment	Cole: Florence does not authorize suspicionless strip searches of detainees who have not been placed in general population and arrested for minor offenses; needed particularized suspicion	Commonwealth: Jail's policy and Florence justify a visual strip/body-cavity inspection of detainees entering booking who may commingle with others; security interests predominate	Court: Florence and Bell principles apply to booking area here; no substantial evidence officials exaggerated response; admission of strip-search evidence was constitutional (affirmed)
Whether Flores/Federal precedents permit strip searches of detainees who may not be assigned to general population	Cole: Florence left open searches for those held apart from general population; here detainee might not enter general population so Florence inapplicable	Commonwealth: Booking area was mixed-use with commingling risk, so Florence factors apply	Court: Booking area had group cells, free movement, and real risk of passing contraband; Florence factors apply; search reasonable
Sufficiency of evidence for possession with intent to distribute	Cole: Quantity and circumstances consistent with personal use; no direct evidence of distribution	Commonwealth: Amount (~5+ g), individually packaged baggies, $600 cash, expert testimony inconsistent with personal use supports intent to distribute	Court: Viewing evidence in Commonwealth’s favor, quantity, packaging, cash, and expert opinion sufficed to support conviction (affirmed)

Key Cases Cited

Florence v. Board of Chosen Freeholders, 566 U.S. 318 (2012) (upholding reasonable, suspicionless strip searches of detainees admitted to a jail’s general population)
Bell v. Wolfish, 441 U.S. 520 (1979) (Fourth Amendment reasonableness of searches in detention balanced against institutional security)
Pell v. Procunier, 417 U.S. 817 (1974) (deference to prison administrators on policies to preserve internal order)
Dukes v. Commonwealth, 227 Va. 119 (1984) (quantity alone may establish intent to distribute if greater than typical personal use)
McCain v. Commonwealth, 261 Va. 483 (2001) (factors probative of intent to distribute include quantity, packaging, and large amounts of cash)