STATE OF FLORIDA, APPELLANT,
v.
WILLIAM N. JAMES, APPELLEE
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The state appeals an order granting the defendant's motion to suppress cocaine found in his mouth, and the appellate court reverses the suppression order.
The appellate court reversed the trial court's order granting the motion to suppress, finding that the officer's actions were justified.
[1] An officer's observation of a white powdery substance in a plastic bag, coupled with experience in street crimes, can establish probable cause to believe the substance is…
[2] Voluntary opening of a suspect's mouth at an officer's request can provide an opportunity for the officer to observe contraband.
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Join FLexlaw to unlock all legal intelligenceAn officer observed the defendant acting suspiciously after leaving a known drug location, placing a bag in his mouth, and then voluntarily opening hi…
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FULMER, Judge.
The state appeals an order granting William James’s motion to suppress the cocaine which he put into his mouth during a police encounter. We reverse.
At the hearing on the motion, Officer Gid-dens testified that he was on patrol with two other officers in an unmarked police car. The officers wore black fatigue shirts with shoulder patches and cloth silver badges that clearly identified them as police officers. As their vehicle was traveling down the street, Officer Giddens observed James walking on the sidewalk. James had just departed from Abacus Liquors, a store where a high volume of drug activity had occurred in the past. Officer Giddens testified that, when the unmarked police car drove past James and turned into a driveway, James looked into the vehicle and appeared to recognize that the occupants were police officers. He stopped suddenly as if he was scared and surprised. His mouth opened and his eyes got wide. Officer Giddens observed James immediately place a small plastic bag into his mouth as he began to walk away from the vehicle. Officer Giddens got out of the vehicle and called out to James, “Hey, could you come here?”
Officer Giddens asked James if he would mind if a warrants check was run on him. He responded, “No.” Officer Giddens also asked James if he had anything in his mouth. James answered, “No,” and voluntarily opened his mouth. Officer Giddens shined his flashlight into James’s mouth and saw a plastic bag filled with a white powdery substance concealed up near the back of James’s mouth. Officer Giddens testified that, based on his experience in the street crimes unit, he believed the bag contained cocaine. “Because of my experience and stuff, it’s very common for them to attempt to hide objects underneath their tongues. They’ll try to push it up in the roofs of their mouths, so I looked very carefully. When he gave me that opportunity, I took full advantage of it.”
After observing what he believed to be cocaine, Officer Giddens decided to detain James. However, he first returned to the vehicle to tell the other officers that James had a bag of cocaine in his mouth and to ask them to assist him in retrieving the cocaine. Officer Garcia took hold of James’s right arm and asked him what was in his mouth. James answered, “Nothing,” and again opened his mouth. Officer Giddens testified that the bag was “right on his tongue as if he was about to swallow it.” Officer Giddens told James to spit out the bag of cocaine or he would be sprayed with pepper gas. James turned away and tried to swallow the bag. Officer Giddens sprayed him twice and James spit the bag onto the ground. He was then placed under arrest.
The trial court concluded that decisions of this court required that the motion to suppress be granted:
The issue is whether the first officer had probable cause to make an arrest when he saw the object in James’ mouth. The case law dictates that this court answer that question in the negative. Under similar facts the appellate court has determined that the officer’s belief that the object 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. State, 620 So. 2d 1080 (Fla. 2d DCA 1993), are distinguishable. In each of these eases, juveniles were observed putting “something” into their mouth. The officers’ belief that the “something” was cocaine was based only on a mere hunch. This court ruled that the act of putting “something” in one’s mouth does not provide a well-founded suspicion for a detention.
In this case, Officer Giddens shined 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 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 the defendant’s mouth before the officer forced her to spit it out. The officer testified that the defendant had voluntarily consented to opening her mouth at his request, at which point he saw the cocaine. .
Id. Likewise, in this case, the officer actually saw a bag of cocaine when James voluntarily opened his mouth. On these facts, we conclude that the officer had not just a founded suspicion of criminal activity but also probable cause to arrest James for possession of cocaine.
Accordingly, we reverse the order and remand for further proceedings.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.
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Houston v. State, 925 So. 2d 404 (Fla. 5th DCA 2006)…r in a folded ten-dollar bill in one hand and in a plastic baggie in his other hand. Based on his training and experience, Dotson reasonably believed this powder to be cocaine and thus had probable cause for an arrest or seizure. See State v. James, 693 So. 2d 1086 (Fla. 2d DCA 1997) (probable cause to arrest defendant for possession of cocaine was provided by officer’s observation of white powdery substance in plastic bag in defendant’s mouth); State v. Billingsly, 542 So. 2d 444 (Fla. 5th DCA 1989) (observat…
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State v. Terrell, 731 So. 2d 800 (Fla. 4th DCA 1999)…ely identified it as cocaine, rather than a mint or lifesaver or such. Thus, it was not merely a reasonable suspicion that the object might be cocaine but an absolute conviction that what he saw was cocaine and nothing else. See also State v. James, 693 So. 2d 1086, 1087-88 (Fla. 2d DCA 1997). In Doney, the officer was unsure and only suspected that the object was cocaine. In Drayton, as here, the officer saw the object and was positive that it was cocaine. Thus, Doney is distinguishable from the instant case…
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State v. Castro-Medina, 959 So. 2d 828 (Fla. 2d DCA 2007)…a white substance, which Ser [*830] geant Rowe testified- appeared to be cocaine. This court has held that police have probable cause to arrest a suspect when they observe a bag containing what appears to be cocaine on their person. State v. James, 693 So. 2d 1086, 1087-88 (Fla. 2d DCA 1997) (holding that police had probable cause to arrest appellee after they saw a plastic bag with a white powdery substance in his mouth); Houston v. State, 925 So. 2d 404, 408 (Fla. 5th DCA 2006) (determining that there was p…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991)
- M.J.S. v. State, 620 So. 2d 1080 (Fla. 2d DCA 1993)
- A.C. v. State, 630 So. 2d 1219 (Fla. 2d DCA 1994)
- Drayton v. State, 601 So. 2d 1248 (Fla. 2d DCA 1992)