JANICE ERMA DRAYTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in denying the defendant's motion to suppress cocaine, as the officer had probable cause to believe the defendant possessed cocaine.
The defendant was arrested for possession of cocaine after an officer saw what appeared to be cocaine in her mouth and compelled her to spit it out. T…
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LEHAN, Judge.
Defendant, who pled nolo contendere to possession of cocaine, a violation of section 893.18, Florida Statutes (Supp.1990), argues that the trial court erred in denying defendant’s motion to suppress cocaine which the arresting officer forced her to spit out of her mouth. We affirm.
Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991), upon which defendant relies, is distinguishable. In Cummo, the officer merely suspected that the defendant was attempting to hide rock cocaine in his mouth before the officer forced him to spit it out. Id. at 968. The officer admitted that the object also could have been a lifesaver or a mint. Id. In the instant case, however, the officer had already seen what the officer identified as cocaine in defendant’s mouth before the officer forced her to spit it out. The officer testified that defendant had voluntarily consented to opening her mouth at his request, at which point he saw the cocaine. Contrary to defendant’s position, the trial court was entitled to believe the officer’s testimony. Thus, it cannot be said that the officer in this case had a mere bare suspicion. He had probable cause as an eyewitness to prima facie evidence of the crime — possession of cocaine.
The officer’s action regarding the cocaine can be further justified as a search incident to a lawful arrest, State v. Williams, 516 So. 2d 1081, 1083 (Fla. 2d DCA 1987), or as an attempt to prevent the obstruction or destruction of evidence under exigent circumstances. See and compare State v. Bamber, 592 So. 2d 1129, 1131 (Fla. 2d DCA 1991).
Finally, we do not agree that the arrest in this case stemmed from an illegal stop. On the contrary, there was sufficient evidence that the arrest arose from a voluntary encounter. Affirmed.
RYDER, A.C.J., and BLUE, J., concur.
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Coney v. State, 820 So. 2d 1012 (Fla. 2d DCA 2002)…. State, 630 So. 2d 1219, 1220 (Fla. 2d DCA 1994). Had the officers observed marijuana in Coney’s mouth, they would have had probable cause to arrest him and to conduct a search, including of his mouth, incident to the arrest. See Drayton v. State, 601 So. 2d 1248, 1249 (Fla. 2d DCA 1992); Curtis, 748 So. 2d at 374; State v. Terrell, 731 So. 2d 800, 801 (Fla. 4th DCA 1999). But the fact that Coney had an unknown object in his mouth was not a sufficient basis to conduct a search. See Cummo, 581 So .2d at 968.…
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State v. James, 693 So. 2d 1086 (Fla. 2d DCA 1997)…a flashlight into James’s mouth and clearly observed a white powdery substance in a plastic bag which, based on his experience in the street crimes unit, he believed to be cocaine. These facts are more akin to those, we reviewed in Drayton v. State, 601 So. 2d 1248, 1249 (Fla. 2d DCA 1992). In that case, Judge Lehan wrote: [Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991)], upon which the defendant relies, is distinguishable. In Cummo, the officer merely suspected that the defendant was attempting to hide ro…
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State v. Terrell, 731 So. 2d 800 (Fla. 4th DCA 1999)…fficer in Cummo apparently never actually saw the object in Cummo’s mouth, but merely surmised that Cummo was trying to hide something which the officer suspected might be cocaine. Later, the second district distinguished Cummo in Drayton v. State, 601 So. 2d 1248, 1249 (Fla. 2d DCA 1992). In Dray-ton, the court said: Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991), upon which defendant relies, is distinguishable. In Cummo, the officer merely suspected that the defendant was attempting to hide rock cocaine…
Authorities Cited
- State v. Bamber, 592 So. 2d 1129 (Fla. 2d DCA 1991)
- Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991)
- Alario & Assocs., Inc. v. Jorge Resendiz, Inc., 516 So. 2d 1081 (Fla. 2d DCA 1987)