Coney v. State, 2D00-2099.
| Citation | 820 So.2d 1012 |
| Decision Date | 28 June 2002 |
| Docket Number | No. 2D00-2099.,2D00-2099. |
| Parties | Maurice CONEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Danilo Curz-Carino, Assistant Attorney General, Tampa, for Appellee.
In trial court case number 99-18564, Maurice Coney appeals the denial of his motion to suppress and argues that the evidence used against him was obtained as a result of an illegal, warrantless search. In trial court case number 98 14718, Coney appeals the order revoking his probation and argues that the order did not comply with the trial court's oral pronouncement. We agree as to both points.
The following evidence was presented at a hearing on Coney's motion to suppress. In October 1999, two Tampa police officers were conducting surveillance in an area where many drug arrests had previously been made. The officers observed Coney approach on a bicycle and put his closed hand into a car. The officers could not see what was in Coney's hand, but as the car left they saw that Coney held money. Based on the circumstances and their training and experience, the officers believed they had observed a drug transaction.
The officers were unable to stop the car. They lost sight of Coney for a few seconds but stopped him about a block away from where he had encountered the car. As one of the officers approached, he noticed that Coney had an object in his mouth. The officer directed Coney to spit it out. Coney complied and expectorated a "nickel size" bag of marijuana. At the hearing, the officer testified that before Coney spit out the bag, he did not know what was in Coney's mouth. He acknowledged that the object could "absolutely" have been candy or a mint. However, he stated that the mouth is a good place to hide drugs.
Coney was arrested and charged with possession of cannabis with the intent to sell or deliver. He filed a motion to suppress and asserted that his search and seizure were illegal. After hearing the officers' testimony, the trial court denied the motion. Coney entered a no contest plea, reserving the right to appeal the denial of his motion to suppress. We reverse.
There are three levels of policecitizen encounters: the first is a consensual encounter during which the citizen is free to leave and there is minimal police contact; the second is an investigative stop during which a police officer may temporarily detain a person if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime; the third is an arrest and must be supported by probable cause that a crime has been or is being committed. Popple v. State, 626 So.2d 185, 186 (Fla. 1993).
Based on all of the circumstances and the observations made by the police officers, they had a legitimate basis to conduct an investigatory stop of Coney. See Grant v. State, 718 So.2d 238, 239 (Fla. 2d DCA 1998); Burnette v. State, 658 So.2d 1170, 1171 (Fla. 2d DCA 1995). However, the officers did not have probable cause to search Coney's mouth.
Generally, in order for an officer to direct a person to spit out the contents of his or her mouth, the officer must have probable cause to arrest the person and to conduct a lawful search incident to that arrest. See Curtis v. State, 748 So.2d 370, 372 (Fla. 4th DCA 2000). The State has the burden to prove that the officer had probable cause, and the proof must be more than the "naked subjective statement of a police officer who has a `feeling' based on `experience' that the accosted citizen is 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 (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.
The State suggests that D.A.H. v. State, 718 So.2d 195 (Fla. 2d DCA 1998), and Revels v. State, 666 So.2d 213 (Fla. 2d DCA 1995), support the trial court's denial of the motion to suppress. In D.A.H., the officer observed D.A.H. exchange small packages for money in several hand-to-hand transactions with persons in vehicles. D.A.H., 718 So.2d at 195. Additionally, D.A.H. fled when he saw the officer. Id. In Revels, the officers were assigned to observe a house where the police had made numerous narcotics arrests. Revels, 666 So.2d at 214. The officers observed two separate hand-to-hand transactions in which a person sitting outside the house approached cars that pulled up to the curb. The officers saw money being exchanged for unidentified objects. Revels then approached the house on foot with money in his hand. He gave the money to the person and received an unidentified small object in exchange for the money. Id.
While we recognize that cases of this nature are often close, several factors are significant to our decision that the police officers did not have probable cause to search Coney: they did not see what was in Coney's hand when he reached into the car; they did not see what was in Coney's mouth before he spit out the object at the command of one of the officers; and they did not see Coney involved in more than one transaction.
Unlike the situations in D.A.H. and Revels, the officers here observed a single suspicious event. They did not see Coney pass drugs or other contraband to the person in the car. See Burnette, 658 So.2d at 1171; Messer v. State, 609 So.2d 164, 165 (Fla. 2d DCA 1992). Both officers admitted that before Coney spit out the marijuana, they did not have probable cause to arrest him. One officer felt that he had a basis to search Coney. The second officer stated that he had reasonable suspicion to stop and investigate Coney but not...
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...88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which was followed by Hankerson's voluntary removal of his shoes. Relying on Coney v. State, 820 So.2d 1012, 1013–15 (Fla. 2d DCA 2002) (holding there was no probable cause to search where law enforcement officers observed the defendant engage in a sing......
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State v. Hankerson
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Huffman v. State, 1D05-3200.
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