GEORGE W. GRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Gray entered a nolo contendere plea to cocaine trafficking while reserving the right to appeal the denial of his suppression motion. The court reversed, finding that while the initial traffic stop and consent to view appellant's genitals were lawful, the trooper lacked probable cause to seize and search the bag containing cocaine without a warrant.
The court affirmed the lawfulness of the traffic stop and appellant's consent to display his genitals, but reversed because appellant's consent did not include seizure or searching of the bag, and the state failed to establish probable cause to seize the bag without a warrant.
[1] A defendant's consent to an officer viewing a suspicious object does not extend to the seizure or search of that object.
[2] Probable cause to seize an object without a warrant cannot be established solely by the suspicious location or appearance of an ordinary-looking object without additional…
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Join FLexlaw to unlock all legal intelligence“We find error in that appellant's consent for the troopers to look did not include the seizure or searching of the bag.”
Establishes that consent to view genitals does not extend to seizure of items discovered during that viewing.
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Join FLexlaw to unlock all legal intelligenceAppellant was a passenger in a car stopped for speeding. A trooper noticed a large bulge in appellant's genital area. After appellant consented to sho…
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GARRETT, Judge.
Appellant entered a plea of nolo conten-dere to trafficking in cocaine but specifically reserved the right to appeal the trial court’s denial of his motion to suppress.
Appellant was a passenger in a car stopped by trooper Veltri (Veltri) for speeding. After a second trooper arrived at the scene, appellant got out of the car. Veltri noticed a large bulge in the genital area of appellant’s pants. A search of the car revealed no contraband. Veltri remarked on the size of the bulge and asked to see appellant’s genitals.1 After appellant pulled his underwear away from his stomach, Veltri, using a flashlight, saw a portion of a brown, opaque plastic bag. Appellant did not answer when asked what was in the bag. Appellant was again asked to show his genitals. When appellant complied, Veltri took and opened the bag which was marked “Toys’ R’ Us.” Inside the “Toys’ R’ Us” bag he found a second bag containing the cocaine.
We reverse. However, we affirm the trial court’s rulings as to the stopping of the car, the encounter between appellant and the troopers, and appellant’s consent for the troopers to look at his genitals. We find error in that appellant’s consent for the troopers to look did not include the seizure or searching of the bag. Hutchinson v. State, 505 So. 2d 579 (Fla.2d DCA 1987), review denied, 519 So. 2d 603 (Fla. 1988). We also find error from the absence of probable cause to seize the bag without a warrant. Williams v. State, 338 So. 2d 233, 235 (Fla. 4th DCA 1976).
Since appellant did not consent to the taking of the bag, the state had. to establish probable cause to justify Veltri’s seizure. During a motion to suppress a warrantless search and seizure of an ordinary looking object found to contain drugs, the state is required to establish probable cause through an officer’s testimony that prior to the seizure he or she believed the object contained contraband. The officer usually bases his or her belief upon knowledge gained through training and experience about how drugs are carried or packaged by traffickers. Seeing a bag stuffed in the genital area of someone’s underwear is highly suspicious even to the average citizen. But without testimony that the location, type of packaging, or other articulable facts led Veltri to reasonably believe the bag contained contraband, his suspicion never rose to the level of probable cause. Cf. Robbins v. California, 453 U.S. 420, 427-29, 101 S.Ct. 2841, 2846-47, 69 L.Ed.2d 744, 751-52 (1981) (officer’s vague testimony as to what two plastic wrapped green blocks contained did not establish probable cause to search without warrant).
Accordingly, we reverse the trial court’s order denying the motion to suppress and remand with directions to discharge appellant after permitting the withdrawal of his conditional plea.
REVERSED AND REMANDED WITH DIRECTIONS.
DELL and GUNTHER, JJ., concur. . Trooper Veltri testified, "Like I said, I remember telling him I had never seen anything like that, and I would be curious, if he would show it to me. I said, would he mind, he responded by unsnapping his pants and he unzipped them.”
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Terrtric Doctor v. State, 573 So. 2d 157 (Fla. 4th DCA 1991)…the officer’s conduct was constitutionally permissible. The officers believed a bulge to be a weapon and felt it, only to discover that it felt like contraband, not a weapon. [*161] There is a factual difference between this case and Gray v. State, 550 So. 2d 540 (Fla. 4th DCA 1989), Dunn v. State, 382 So. 2d 727 (Fla. 2d DCA 1980), Fraley v. State, 374 So. 2d 1122 (Fla. 4th DCA 1979), and State v. Broadnax, 98 Wash.2d 289, 654 P. 2d 96 (1982), which last mentioned case discusses the inappropriateness of the…
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Blair v. State, 563 So. 2d 824 (Fla. 2d DCA 1990)…el he was in danger, therefore, he had no probable cause to conduct a search. Thomas v. State, 533 So. 2d 861 (Fla. 2d DCA 1988). Observing the bulge in Blair’s pants does not amount to probable cause which would justify a search. See Gray v. State, 550 So. 2d 540 (Fla. 4th DCA 1989). Because Livingston had no probable cause to search Blair and she did not consent to the search, the cocaine was illegally seized. The judgment and sentence are reversed and set aside and the case is remanded for entry of an orde…
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Silva v. State, 641 So. 2d 482 (Fla. 5th DCA 1994)…d charged with possession of LSD. A hearing was held on the motion to suppress and denied by the trial judge. There were sufficient additional circumstances to establish probable cause to justify the warrantless search of Silva. Cf. Gray v. State, 550 So. 2d 540 (Fla. 4th DCA 1989) (trooper who had consent to inspect the genital area of defendant had no probable cause to seize and search an opaque plastic bag discovered during the inspection). The two investigators met with the innocent confidential identif…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robbins v. California, 453 U.S. 420 (U.S. 1981)
- Hutchinson v. State, 505 So. 2d 579 (Fla. 2d DCA 1987)
- State v. Hutchinson, 519 So. 2d 603 (Fla. 1988)
- Williams v. State, 338 So. 2d 233 (Fla. 4th DCA 1976)