The Virginia Supreme Court heard oral arguments in Commonwealth v. Hubbard over whether a roadside search that exposed part of the defendant’s buttocks and involved an officer reaching into the defendant’s underwear violated the Fourth Amendment.

The case matters because the court’s decision could clarify when roadside searches cross the line into strip searches and when exigent circumstances—such as the risk of evidence being destroyed or a person ingesting fentanyl—permit on-the-spot intrusions that would otherwise be intrusive and potentially unconstitutional.

Assistant Attorney General Jay Brady Hess, arguing for the Commonwealth, urged the court to reverse the Court of Appeals and reinstate the Lynchburg Circuit Court judgment. Hess told the justices that “each day, law enforcement officers across the Commonwealth must make decisions during tense, uncertain, and rapidly evolving circumstances” and that reasonableness must be judged at the time of the search, not with hindsight. He emphasized facts the Commonwealth says justified immediate action: visible white powder, the bag’s location between the defendant’s buttocks and underwear, the defendant’s motions “trying to get there with his hands,” and an officer’s prior experience in which a similar bag “popped” and an arrestee overdosed. Hess argued those facts supported exigent circumstances and cited a Court of Appeals precedent, Craddick, as a controlling decision the Commonwealth says the Court of Appeals ignored.

W. Cameron Warren, counsel for the appellee, argued the roadside intrusion was an improper “roadside strip search” and urged the court to affirm the Court of Appeals. Warren said there were no exigent circumstances that required an immediate search at the roadside and noted alternatives: the officer could have taken the handcuffed man about a half mile to the jail where privacy and departmental procedures apply. “Roadside strip searches are simply wrong,” Warren said, and he repeated that the facts established the search occurred while the man was handcuffed on the side of a public street with his pants at or near his ankles.

Justices pressed both sides on two recurring legal questions: (1) whether the conduct here qualifies as a strip search for Fourth Amendment purposes or a less intrusive “search,” and (2) how to apply the Fourth Amendment reasonableness test across a range of encounters from Terry-type patdowns to highly intrusive searches. A member of the court asked whether Craddick—an earlier Court of Appeals decision holding that officers had sufficient justification for a strip search when a bag protruded from an arrestee’s body cavity—controlled the outcome. Warren acknowledged Craddick’s similar facts but argued the roadside context and visibility to passersby made the search unreasonable; Hess said Craddick supported treating the risk of bodily harm from the drugs as an exigent circumstance.

The record facts the parties identified include: officers saw a white powder bag lodged between the defendant’s underwear and buttocks; the man was handcuffed and on the roadside; testimony and body-worn camera footage differ over how visible the intrusion was to passersby; the Lynchburg Police Department policy and a Virginia statute were discussed by defense counsel as relevant background but neither counsel treated those sources as determinative of Fourth Amendment suppression remedies; and the Commonwealth pointed to the retrieval being done while officers attempted to limit the intrusion (for example, the officer wore gloves and the retrieval occurred at the vehicle’s passenger-side fender, the Commonwealth said).

Both sides debated the effect of the defendant’s general Fourth Amendment waiver. Hess told the court the Commonwealth did not press the waiver line because the Court of Appeals had treated the encounter as a strip search; Warren argued a general waiver to warrantless searches did not justify a strip search and would not permit the degree of intrusion at issue.

The justices also raised the policy concern—posed by one justice—that treating the risk of fentanyl exposure as an exigent circumstance could allow “fentanyl” to become a near-automatic justification in many cases. The Commonwealth responded that its argument rests on the totality of the circumstances shown by the record here, including the officer’s experience with prior overdose incidents and the defendant’s movements that suggested attempts to dispose of the bag.

No decision was announced at the hearing. The court’s questions focused on clarifying factual findings below (including what the body-worn camera shows about visibility and whether officers initiated or merely reacted to the defendant’s pants falling down), the proper legal label for the intrusion (strip search versus search), and how precedent such as Craddick should apply in a roadside setting.

The justices recessed without issuing an opinion; the court’s written decision will determine whether the Court of Appeals correctly found a Fourth Amendment violation and whether the Lynchburg Circuit Court judgment should be reinstated.