CHRISTOPHER CUMMO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Cummo was stopped for a traffic violation, and during the stop, a detective physically restrained him to prevent him from swallowing an object in his mouth, which turned out to be crack cocaine. The court reversed the denial of his suppression motion, holding that the detective lacked probable cause to search Cummo because there was no reason to believe he was armed with a dangerous weapon.
The court held that the search was invalid because Detective Wright lacked probable cause to search Cummo. A police officer may conduct a search incident to a valid detention only if he has probable cause to believe the person is armed with a dangerous weapon. Here, Detective Wright testified only that he suspected the object was cocaine based on his experience, and explicitly acknowledged it could have been a lifesaver or mint. There was no evidence he believed Cummo was armed, so the search was unconstitutional.
[1] A police officer may conduct a search incident to a valid stop only if probable cause exists to believe the person detained is armed with a dangerous weapon.
[2] An officer's suspicion that a person is concealing drugs in their mouth, without more, does not establish probable cause to believe the person is armed with a dangerous w…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The right to search an individual pursuant to a valid detention is not automatic.”
Establishes the foundational principle that a lawful stop does not automatically permit a search.
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Join FLexlaw to unlock all legal intelligenceCummo was stopped for operating a pickup truck with one headlight in a high crime area. Detective Wright responded as backup and learned from the init…
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HALL, Judge.
The appellant challenges the denial of his motion to suppress crack cocaine found in his possession, contending the police lacked probable cause to search him for drugs. We agree and reverse.
The appellant, Christopher Cummo, was stopped by Officer Mohaupt of the Punta Gorda Police Department for operating his pickup truck with only one headlight. Since the stop occurred in a high crime area, backup officers were called to the scene as a matter of routine. Detective Wright was one of the backup officers dispatched. Upon his arrival at the scene, Detective Wright was informed by Officer Mohaupt that he, Mohaupt, had stopped Cummo in the same area approximately one month earlier. At that time, Cummo had admitted to Officer Mohaupt that he was in the area to buy cocaine.
Detective Wright approached the vehicle and began talking with Cummo. He observed Cummo had something in his mouth which he appeared to be trying to hide. When Detective Wright asked him a question, Cummo manipulated the object by moving it with his tongue from one cheek to the other and making “a swallowing motion.” Suspecting Cummo was attempting to conceal rock cocaine and was thus trying to swallow it, Detective Wright grabbed Cummo “around the throat, bottom of the jaw, trying to lock his jaw so he couldn’t swallow.” As a result, Cummo “spit out a small amount of crushed crack cocaine on the hood of his vehicle.” A field test indicated the substance was, indeed, crack cocaine. Thereafter, Cummo was arrested, Mirandized, and charged with possession. Upon the denial of his motion to suppress, Cummo pled no contest to the charge and was sentenced to five years’ probation.
In its order denying Cummo’s motion to suppress, the trial court found that pursuant to a proper traffic stop “the further conduct of the officer in stopping the defendant from swallowing that which was in his mouth fell well within the range of knowledge and experience of the officer in handling such matters.”
The right to search an individual pursuant to a valid detention is not automatic. Thomas v. State, 533 So. 2d 861 (Fla. 2d DCA 1988). A police officer may conduct a search incident to a valid stop only if he has probable cause to believe the person detained is armed with a dangerous weapon. See Michigan v. State, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); § 901.151(5), Fla.Stat.; and Thomas v. State. See also Lemon v. State, 580 So. 2d 292 (Fla. 2d DCA 1991).
Cummo does not dispute the validity of his detention; however, he was stopped only for a traffic violation. Though Detective Wright was knowledgeable and possessed considerable experience in handling narcotics investigations, the record is silent as to any circumstances which would give rise to probable cause to search Cummo. There is no testimony in the record indicating Detective Wright believed Cummo was armed with a dangerous weapon. He testified only that he knew Cummo had something in his mouth and based on his experience, he suspected it might be cocaine. He further testified that the object in Cummo’s mouth could have been a lifesaver or a mint.
We find as the Fifth District did in Ricks v. State, 549 So. 2d 789 (Fla. 5th DCA 1989), that “[t]his case is analogous to those invalidating a seizure where the officer upon stopping the defendant reached inside the defendant’s pocket to seize an item which the officer did not believe was a weapon.” (Citations omitted.) Id. at 790.
Since there was no evidence other than the detective’s bare suspicion that the object in Cummo’s mouth was rock cocaine, and the detective did not believe reasonably or otherwise that Cummo was armed with a dangerous weapon, the search in this instance was not based on probable cause and was therefore invalid.
Accordingly, we set aside the trial court’s order denying Cummo’s motion to suppress and remand the cause with directions to grant said motion.
THREADGILL and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Curtis v. State, 748 So. 2d 370 (Fla. 4th DCA 2000)…ed to raise probable cause to the level of an absolute certainty. The reference to positive identification and absolute conviction were used merely to distinguish Terrell from Doney. In deciding Doney, this court relied heavily upon Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991). In Cummo the defendant was stopped by Officer Mohaupt of the Punta Gorda Police Department for operating his pickup truck with only one headlight. Since the stop occurred in a high crime area, backup officers were called to the s…
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Doney v. State, 648 So. 2d 799 (Fla. 4th DCA 1994)…put something in his mouth was not sufficient to justify a detention). Further, even if the officer had founded suspicion to detain Doney, the search would have exceeded the scope of what is allowed during an investigatory stop. See Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991) (since there was no evidence other than detective’s bare suspicion that the object in Cummo’s mouth was rock cocaine, and the detective did not reasonably believe that Cummo was armed with a dangerous weapon, the search was invali…
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Coney v. State, 820 So. 2d 1012 (Fla. 2d DCA 2002)…committing a crime.” Doctor v. State, 596 So. 2d 442, 445 (Fla.1992). , An officer’s suspicion that a person is carrying illegal drugs in his mouth is not a sufficient basis to order the person to spit out the contents of his mouth. Cummo v. State, 581 So. 2d 967, 968 (Fla. 2d DCA 1991). In Cummo, as here, the officer suspected that the individual had drugs in his mouth, but the officer acknowledged that the object could also have been a lifesaver or a mint. Id. See also A.C. v. State, 630 So. 2d 1219, 1220…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Michigan v. Long, 463 U.S. 1032 (U.S. 1983)
- Thomas v. State, 533 So. 2d 861 (Fla. 2d DCA 1988)
- Deleon v. State, 580 So. 2d 292 (Fla. 4th DCA 1991)
- Lemon v. State, 580 So. 2d 292 (Fla. 2d DCA 1991)
- Jenkins v. State, 549 So. 2d 789 (Fla. 5th DCA 1989)
- Ricks v. State, 549 So. 2d 789 (Fla. 5th DCA 1989)