Objective Reasonableness, Not Search Labels: Virginia High Court Upholds Limited Underwear Retrievals Incident to Arrest Based on Safety and Evidence-Destruction Risks

Case: Commonwealth v. Hubbard, Supreme Court of Virginia (Sept. 11, 2025)

Introduction

In Commonwealth v. Hubbard, the Supreme Court of Virginia reversed the Court of Appeals and reinstated Shanta Orlando Hubbard’s conviction for possession with intent to distribute cocaine. The central Fourth Amendment issue was whether officers acted reasonably when, during a roadside search incident to arrest, they retrieved a plastic bag containing cocaine positioned between the defendant’s buttocks and his underwear—without exposing his genitals or entering any body cavity—amid concerns about officer and detainee safety (fentanyl risk) and imminent destruction of evidence.

The trial court denied Hubbard’s motion to suppress. The Court of Appeals vacated the conviction, applying a heightened “intrusive bodily search” framework and finding no exigent circumstances. The Supreme Court disagreed, emphasizing the Fourth Amendment’s “meta principle” of objective reasonableness, the deference owed to on-scene officer judgments in tense, evolving encounters, and the established authority to conduct searches incident to arrest. The Court held that, on the record and under the proper standard of review, the officer’s retrieval was constitutionally reasonable.

Summary of the Opinion

Justice D. Arthur Kelsey, writing for a unanimous Court, held:

• The ultimate touchstone of the Fourth Amendment is objective reasonableness. Courts must avoid hindsight and give due weight to the on-scene assessments of trained officers and trial judges.
• Probable cause existed to arrest Hubbard (pre-2021 law) based on the odor of marijuana and the discovery of “marijuana shake” and suspected narcotics in the vehicle; a search incident to arrest therefore required no warrant.
• The retrieval occurred without exposing Hubbard’s genitals or entering a body cavity; the bag sat between his buttocks and his underwear, not in the anus. The officer remained outside the underwear until he pulled the waistband open to see and remove the bag.
• Given articulated safety concerns (including documented fentanyl risks and the officer’s prior experience with an in-transit overdose from a ruptured bag) and the risk of imminent evidence destruction (the handcuffed defendant was actively attempting to access the item), the retrieval was reasonable under the Fourth Amendment.
• The Court declined to hinge its analysis on rigid labels (strip vs. visual vs. manual body-cavity search). The reasonableness of the officer’s conduct controlled the outcome regardless of nomenclature.
• The officer’s subjective belief that a prior “Fourth Amendment waiver” authorized a broad search was immaterial; constitutional analysis turns on objective facts, not subjective motivations.

Accordingly, the Supreme Court reversed the Court of Appeals and reinstated the conviction.

Analysis

Precedents Cited and Their Influence

• Objective reasonableness and on-scene deference: Riley v. California (2014) and Brigham City v. Stuart (2006) anchor the Fourth Amendment inquiry in objective reasonableness, independent of an officer’s subjective intent. Ryburn v. Huff (2012) cautions courts against second-guessing split-second judgments in tense, evolving situations. The Court deploys these principles to credit the officers’ safety concerns (including fentanyl) and their real-time management of a resisting detainee.
• Standard of review: Commonwealth v. White (2017) and Durham v. Commonwealth (2024) instruct appellate courts to view the evidence in the light most favorable to the Commonwealth and to consider both suppression-hearing and trial evidence. The Supreme Court criticizes the intermediate court’s approach and re-centers the proper deferential lens.
• Reasonable suspicion, probable cause, and plain-feel/plain-smell: Minnesota v. Dickerson (1993), Cost v. Commonwealth (2008), and Bunch v. Commonwealth (2008) frame how tactile and olfactory cues develop into probable cause. Here, pre-2021 odor of marijuana plus “shake” and suspected baggies sufficed to establish probable cause.
• Search incident to arrest (SITA): Birchfield v. North Dakota (2016) and Weeks v. United States (1914) affirm the categorical authority to conduct a warrantless search of an arrestee’s person. The Court underscores that SITA does not depend on ex post predictions of success; the arrest itself authorizes a full person-search. Rawlings v. Kentucky (1980), Italiano v. Commonwealth (1973), and Brown v. Commonwealth (2005) confirm the search may precede the formal arrest if probable cause existed and the events are contemporaneous.
• Intrusive body-search taxonomy: The Court canvasses Virginia Court of Appeals precedent—Moss (1999), Taylor (1998), Hughes (2000) (en banc), and Gilmore (1998)—which often apply a heightened standard (exigency) to particularly invasive searches. Rather than committing to that taxonomy, the Court applies the “meta” reasonableness standard and finds the retrieval reasonable whether labeled a strip, visual, or manual body-cavity search.
• Virginia analogs on underwear retrieval: McCloud v. Commonwealth (2001) upheld a SITA retrieval from underwear where there was no nudity, no exposure, and no genital touching. Craddock v. Commonwealth (2003) approved a strip search at a detention center when officers simply observed and removed bagged drugs located between “butt cheeks” (not within the anal cavity), emphasizing institutional safety and overdose risk. The Supreme Court favorably invokes both as guideposts.
• Destruction of evidence: Kentucky v. King (2011) recognizes imminent evidence destruction as a classic exigency. The Court uses this as an independent strand supporting reasonableness given Hubbard’s active attempts to access the bag and the realistic risk the drugs could be shaken loose and lost.
• Vehicle-occupant probable cause: Maryland v. Pringle (2003) supports probable cause for any or all occupants when contraband is found in a vehicle under joint-access circumstances, fortifying the SITA predicate here.

Legal Reasoning

The Court’s analysis proceeds in three steps:

1. Proper lens and predicate authority: Applying the deferential standard of review, the Court accepts the trial court’s factual findings and inferences and considers the full record. Probable cause existed before the retrieval. That predicate activated the categorical SITA exception, authorizing a full person-search without a warrant. The fact that the formal arrest declaration followed quickly does not matter so long as probable cause predated the search and the events were contemporaneous.
2. Nature and degree of intrusion: The Court carefully delineates the physical facts: the officer first felt the object while outside the underwear, then pulled back the waistband and retrieved a plastic bag that sat between the buttocks and underwear; there was no entry into the anus, no touching of the anal sphincter, and no public exposure of genitals. A brief, accidental drop of the shorts for two seconds did not expose the body and was immediately corrected. This positioning aligns with McCloud and Craddock and distinguishes true manual or visual cavity searches.
3. Reasonableness balancing (safety and evidence conservation):
   • Safety: The officer articulated specific, non-speculative risks: command directives against field-testing white powders due to fentanyl, the potential for aerosolization, and a prior in-transit overdose from a ruptured bag. The detainee’s active efforts to access the object amplified the risk of rupture, threatening officers, the arrestee, and a nearby passenger.
   • Evidence preservation: The supervising officer reasonably feared that the drugs could be dislodged, lost to the ground, and unrecoverable, materially affecting the charges (possession vs. distribution). Preventing imminent destruction of evidence is a recognized exigency that weighs heavily in the reasonableness calculus.
   On these facts, the Court holds that the retrieval was reasonable regardless of how one labels the search (strip/visual/manual). The Court’s “meta principle” approach prioritizes concrete circumstances over doctrinal pigeonholes.

Finally, the Court rejects arguments turning on the officer’s subjective reliance on Hubbard’s 2012 “Fourth Amendment rights waiver.” Constitutional analysis is objective; subjective motives do not govern the validity of a search that is otherwise justified by objective facts.

Impact and Implications

• Re-centering the analysis on objective reasonableness: The decision deemphasizes rigid labels for invasive searches and emphasizes a holistic reasonableness assessment that accounts for safety and evidence-preservation in real time. This pivot can reduce litigation over categorical definitions and refocus courts on the practical intrusiveness actually inflicted.
• Endorsement of limited underwear retrievals when justified: The Supreme Court aligns with McCloud and Craddock in treating retrievals from between the buttocks and underwear—performed without nudity, public exposure, or entry into a body cavity—as potentially reasonable during SITA, particularly when safety and destruction-of-evidence concerns are present.
• Fentanyl and officer/detainee safety as weighty factors: The opinion legitimizes the real-world safety concerns associated with fentanyl and similar substances, recognizing that avoiding field tests and preventing ruptures are constitutionally relevant. Officers who can articulate training, experience, and prior incidents will find strong support for prompt retrievals that minimize risk.
• Active resistance matters: The defendant’s attempt to access and manipulate the hidden contraband materially increased both safety dangers and the risk of evidence loss. This conduct can justify prompt, minimally intrusive retrievals.
• Appellate review discipline: The Court’s reminder to view facts in the light most favorable to the prevailing party and to consult both suppression and trial records will constrain reversal on close fact patterns. Trial-level credibility findings and on-scene judgments receive “due weight.”
• Temporal context and marijuana: The Court notes the search occurred in June 2020, before enactment of Code § 4.1-1302, which altered the legal consequences of marijuana odor in Virginia. Going forward, probable-cause assessments predicated on marijuana odor must account for current statutory constraints; officers will need additional facts beyond odor alone in post-2021 cases.
• Waiver doctrine left for another day: By resolving the case on objective reasonableness, the Court avoids opining on the scope of Hubbard’s 2012 waiver. Future cases may still test the outer limits of consent/waiver clauses with respect to invasive searches.

Complex Concepts Simplified

• Search Incident to Arrest (SITA): A longstanding rule allowing officers to search an arrestee’s person without a warrant once probable cause exists. The search may be conducted just before or after the formal arrest if the events are part of a single, contemporaneous sequence.
• Objective Reasonableness: The constitutional test asking whether a reasonable officer, standing in the shoes of the actual officer and viewing facts as they unfolded, would find the action justified—regardless of the officer’s subjective motives.
• Intrusive Body-Search Labels:
  • Strip search: Inspection of a naked person without examining body cavities.
  • Visual body-cavity search: Visual inspection of anal/genital areas or cavities.
  • Manual body-cavity search: Physical touching/probing of a body cavity (highest intrusion).
  Hubbard teaches that labels are not dispositive; the totality of circumstances and actual degree of intrusion control.
• Exigent Circumstances: Situations demanding immediate action—such as imminent destruction of evidence or serious safety risks—often invoked to justify warrantless measures. In SITA contexts, exigency-like factors can inform the reasonableness of how the search is conducted.
• Plain-Smell / Plain-Feel: Sensory observations (odor, tactile recognition) that, when combined with context, can contribute to probable cause. Pre-2021, marijuana odor often supported probable cause in Virginia; current law curtails that use.
• Standard of Review on Suppression: Appellate courts give deference to trial courts’ factual findings, view the record in the light most favorable to the prevailing party, and may consider the trial evidence along with suppression-hearing testimony.

Practice Considerations

• For law enforcement:
  • Articulate safety rationales (e.g., fentanyl risks, training directives, prior incidents) and evidence-preservation concerns contemporaneously.
  • Minimize exposure and intrusion: avoid disrobement, maintain privacy, and refrain from entering body cavities unless clearly justified.
  • Document resistance and attempts to access or destroy contraband; such facts significantly affect reasonableness.
  • Be mindful of current marijuana laws; odor alone may not suffice for probable cause in post-2021 encounters.
• For defense counsel:
  • Scrutinize the degree of intrusion: Was there exposure or any entry into a body cavity? Was the force or method excessive?
  • Challenge the factual foundation of safety and exigency claims; request body-worn camera footage and training materials.
  • Probe the timeline for probable cause and the contemporaneity of arrest and search.
  • Account for statutory changes (e.g., Code § 4.1-1302) when assessing probable cause based on marijuana-related cues.

Conclusion

Commonwealth v. Hubbard reinforces a pragmatic, circumstance-driven approach to the Fourth Amendment. The Supreme Court of Virginia places objective reasonableness—not rigid taxonomies of “strip” or “cavity” searches—at the center of the analysis. Where officers possess probable cause to arrest, and a minimally intrusive retrieval from within a detainee’s underwear is performed without exposure or entry into a body cavity, serious safety concerns (e.g., fentanyl risks) and imminent evidence-destruction dangers can justify prompt on-scene action. The Court’s opinion also reaffirms robust deference to trial courts and on-scene judgments, clarifies that SITA may precede the formal arrest declaration when probable cause preexists, and treats the officer’s subjective reliance on a waiver as irrelevant to the constitutional inquiry.

The decision provides practical guidance for law enforcement on how to conduct sensitive searches while preserving constitutional boundaries and offers litigants a clearer framework: focus the litigation on what actually happened—how intrusive the search really was, what risks were genuinely present, and whether the officers acted as reasonable professionals under the circumstances.