MEMORANDUM OPINION ^[*] BY v. Record No. 1209-01-2 JUDGE WILLIAM H. HODGES MAY 14, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Margaret P. Spencer, Judge

Cynthia E. Payne, Assistant Public Defender, for appellant.

Marla Graff Decker, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Andrew Burney entered conditional guilty pleas for possession of heroin with the intent to distribute, possession of cocaine with the intent to distribute, and failure to appear in court. The trial court denied his motion to suppress the evidence obtained during a search of his person. On appeal, he argues that the trial court erred in denying his motion and admitting the Commonwealth's evidence. Burney contends the evidence was obtained as a result of an illegal search. For the reasons that follow, we disagree and affirm his convictions. ^[1] en banc, 34 Va. App. 72, 537 S.E.2d 630 (2000). "'The burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.'" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (alterations in original) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

"'Ultimate questions of reasonable suspicion and probable cause to make a warrantless search' involve questions of both law and fact and are reviewed de novo on appeal." Id. (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). However, "we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).

In this case, the threshold issue is whether the police conducted a "strip search." Burney contends the search violated Code § 19.2-59.1. However, by its own terms, Code § 19.2-59.1 does not apply to Class 1 or Class 2 misdemeanor offenses. ^[2] Burney was arrested for reckless driving and driving with a suspended license, Class 1 and 2 misdemeanors, respectively, at the time of the offenses. See Code §§ 46.2-301, 46.2-852, and 46.2-868. These offenses do not constitute traffic infractions. See Code §§ 46.2-100 and 46.2-113. Consequently, the definition of a strip search in Code § 19.2-59.1 does not apply to this case. See McCloud v. Commonwealth, 35 Va. App. 276, 281, 544 S.E.2d 866, 868 (2001).

"A search of the person may range from a Terry-type pat-down to a generalized search of the person to the more intrusive strip search or body cavity search. 'A strip search generally refers to an inspection of a naked individual, without any scrutiny of his body cavities. A visual body cavity search extends to a visual inspection of the anal and genital areas.' Commonwealth v. Thomas, 429 Mass. 403, 708 N.E.2d 669, 672 n.4 (1999). 'A "manual body cavity search" includes some degree of touching or probing of body cavities.' Cookish v. Powell, 945 F.2d 441, 444-45 n.5 (1st Cir. 1991)."

Id. at 282-83, 544 S.E.2d at 868-69 (quoting Hughes v. Commonwealth, 31 Va. App. 447, 455, 524 S.E.2d 155, 159 (2000) (en banc)). We characterized the search of Hughes' person as a "strip search" because he was forced to disrobe while the police inspected his underwear. Because McCloud's "clothing was not removed, and his genital area was not exposed," we found he was not subjected to a strip search. McCloud, 35 Va. App. at 283-84, 544 S.E.2d at 869. Where officers merely "arrange" a suspect's clothing, a strip search has not occurred. Id.

In McCloud, the officers only "pulled back [McCloud's] underwear in the front." Id. at 279, 544 S.E.2d at 867. Similarly, Intagliato pulled back the waistband of Burney's underwear and looked inside, immediately spotting two bags containing suspected narcotics. Contrary to Burney's contention, the evidence does not indicate that Intagliato could see Burney's genitals when the officer pulled back Burney's underwear. The officer did not touch Burney's genitals. As in McCloud, Burney was not subjected to a "strip search." The trial court did not err by denying Burney's motion to suppress the evidence obtained during the search incident to his arrest. Therefore, we affirm the decision of the trial court.

Affirmed.

Benton, J., concurring.

For the reasons stated in McCloud v. Commonwealth, 35 Va. App. 276, 284-86, 544 S.E.2d 866, 869-70 (2001) (Benton, J., concurring), I concur in the judgment affirming the conviction.