M.J.S., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the officer's actions constituted an illegal search and seizure under the Fourth Amendment, requiring suppression of the evidence.
An officer approached the appellant, who attempted to conceal something in his mouth. The officer touched the appellant and ordered him to spit it out…
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PATTERSON, Judge.
The appellant challenges the trial court’s denial of his motion to suppress. He argues that the evidence was obtained during an illegal search and seizure. We agree and reverse.
The testimony at the suppression hearing reveals that Officer Michael Samms of the Lakeland Police Department approached the appellant, who was standing on the porch of a house under surveillance for drug activity. The appellant was startled by the officer’s appearance and attempted to conceal something in his mouth. The officer put his hand on the appellant’s shoulder and told the appellant that if he had just put drugs in his mouth he needed to “spit it out” because they would make him “real ill.” The appellant spit out several pieces of rock cocaine and Officer Samms placed him under arrest.
The appellant’s movements did not give the police officer a reasonable suspicion or probable cause to believe that the appellant was involved in criminal activity. See Williams v. State, 564 So. 2d 593 (Fla. 2d DCA 1990). Although the officer’s actions started out as a permissible police/citizen encounter, once the officer put his hand on the appellant’s shoulder, the appellant was seized within the meaning of the fourth amendment. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Thereafter, the officer’s order to “spit it out” constituted an illegal search. Williams, 564 So. 2d at 594.
Accordingly, we reverse and remand to the trial court for the suppression of the evidence.
SCHOONOVER, A.C.J., and ALTENBERND, J., concur.
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Doney v. State, 648 So. 2d 799 (Fla. 4th DCA 1994)…on the officers observed the defendant and another man at the foot of some stairs near an intersection, the defendant made eye contact with one of the officers and then turned his back simultaneously putting something in his mouth); M.J.S. v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993) (officer did not have reasonable suspicion or probable cause to believe the defendant was involved in criminal activity, where officer approached the defendant who was standing on the- porch of a house under surveillance for drug…
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D.G. v. State, 714 So. 2d 644 (Fla. 4th DCA 1998)…cion of loitering or prowling where he observed defendant walking beside a closed grocery store which had been burglarized in the past and which was located in a high crime area where people regularly congregated at night); see also M.J.S. v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993) We conclude that, on these limited facts, the officer’s subjective belief that the juveniles were concealing themselves did not furnish a factual basis for a well-founded suspicion. Jones, 570 So. 2d at 434 (stating that a founde…
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State v. James, 693 So. 2d 1086 (Fla. 2d DCA 1997)…ct was contraband is a “mere hunch”, A.C. v. State, 630 So. 2d 1219 (Fla. 2d DCA 1994), and does “not give the police officer a reasonable suspicion or probable cause to believe that the appellant was involved in criminal activity”, M.J.S. v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993). I do not believe these decisions comport with the harsh reality of street level drug use and drug enforcement, but that is beside the point. We do not agree. Both A.C. v. State, 630 So. 2d 1219 (Fla. 2d DCA 1994), and M.J.S. v.…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- California v. Hodari D., 499 U.S. 621 (U.S. 1991)
- Anthanase Williams v. State, 564 So. 2d 593 (Fla. 2d DCA 1990)