Smith v. State

• Decision Date: 17 March 2000
• Docket Number: No. 2D98-3188.,2D98-3188.
• Citation: 753 So.2d 713
• Parties: Paul SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

753 So.2d 713

Paul SMITH, Appellant, v. STATE of Florida, Appellee.

No. 2D98-3188.

District Court of Appeal of Florida, Second District.

March 17, 2000.

David R. Parry of Jordan Hills Professional Center, Clearwater, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

Paul Smith appeals his conviction for possession of cocaine, asserting that the trial court erred in concluding that he consented to a search of his mouth. We agree and reverse.

On January 9, 1998, Officer Michael Tull of the Tarpon Springs Police Department was on drug surveillance patrol in the vicinity of Lime and Stafford streets, a documented location for crack cocaine sales. The officer was in an unmarked vehicle and was attired in a tactical uniform that was marked "police"; he carried a weapon in his gun belt. While stopped at a location on the 100 block of Lime Street, Officer Tull first observed Mr. Smith, a white male, who was unknown to him at that time. Mr. Smith then left the area. Several minutes later, the officer observed Mr. Smith returning to the area. As Mr. Smith was walking through a parking lot, Officer Tull drove to within 25 feet of him, stopped his car, and asked Mr. Smith if he could speak with him. Mr. Smith walked to the front of the unmarked patrol car and, after a short conversation, the officer asked Mr. Smith if he could search him. Mr. Smith said he "didn't mind," which the officer interpreted as verbal consent.

As a result of the search, the officer located a pack of cigarettes and some twenty dollar bills in Mr. Smith's right front pocket, which the officer placed on his vehicle and did not return to Mr. Smith.¹ Because the officer was aware through his experience that crack cocaine might be concealed in a person's mouth, he then asked Mr. Smith to open his mouth. Mr. Smith did so but cupped his tongue so that the officer could not see beneath it. Because "obviously he appeared to be concealing something," the officer began to give further instructions to Mr. Smith, including a demonstration of what he wanted Mr. Smith to do so that he could see under his tongue. Mr. Smith did not comply. Ultimately, a piece of off-white substance popped up from beneath Mr. Smith's gum line, which the officer recognized as crack cocaine. When requested by the officer to spit it out, Mr. Smith did not do so. Rather, he closed his mouth and began to back up. Fearing that he might run, the officer "took custody" of Mr. Smith's right arm, then took his thumb and pressed it against Mr. Smith's mouth, causing the pieces to "come flying out." The officer, because Mr. Smith resisted, "escorted him down to the ground."

Officer Tull testified that at no time during this situation did he observe or reasonably suspect any illegal conduct, nor had he seen any substance, legal or illegal, in Mr. Smith's mouth prior to the search.

This case does not involve a search based upon either probable cause or a reasonable suspicion. Instead, the issue is whether the search was justified as consensual. We conclude that it was not.

"[T]he most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.'" Coolidge v. New Hampshire, 403 U.S. 443, 454-5, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). To validate a warrantless search, the government must prove that the search falls into one of the recognized constitutional exceptions, one of which is consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)

. After the government first shows that the suspect gave law enforcement consent to search, see Phuagnong v. State, 714 So.2d 527, 531 (Fla. 1st DCA 1998), it must next prove that the consent was voluntary, an act of free will and not mere acquiescence to police authority. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Consent is not lightly to be inferred, see United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979), and it is the government's burden to prove the existence of effective consent, see Sims v. State, 743 So.2d 97 (Fla. 1st DCA 1999). Consent, once given in a consensual encounter, may be revoked by the citizen, see Phillips v. State, 707 So.2d 774 (Fla. 2d DCA 1998); and the limits of consent are defined by the extent of the consent given, see Jacobs v. State, 733 So.2d 552 (Fla. 2d DCA 1999).

When Mr. Smith failed to comply with the officer's command to lift his tongue, a command with which he had no legal duty to comply and which the officer had no legal authority to compel, Officer Tull attempted to procure compliance by issuing instructions, all the while holding Mr. Smith there with his mouth apparently open. In seeking compliance, the officer was not seeking consent. Mr. Smith had the right to rescind his consent or to limit his consent. Through his non-verbal conduct, Mr. Smith denied or withdrew consent for the officer to see beneath his tongue by holding his tongue to obscure the officer's view.

We fear that similar situations will arise in the future, perhaps because most citizens hold it to be their duty to cooperate with law enforcement, a belief with which we join. But once engaged in the process, few citizens know the boundaries that law enforcement may not legally exceed or the means to stop conduct they may perceive to be unduly intrusive. The Supreme Court of the United States has held that police officers are not required to inform citizens of their right to refuse consent to a search. See Schneckloth, 412 U.S. at 248-249,

93 S.Ct. 2041. Thus, ignorance of one's rights may lead to a denial of those rights. To avoid similar occurrences and to define rules for determining "whether an invasion of privacy is justified in the interest of law enforcement," see New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), we would suggest that our supreme court consider adopting a bright line rule that requires clear verbal consent before the search of any body orifice.² The rule, to insure an individual's right to privacy, should impose a duty upon law enforcement to inform a person of the right to refuse consent as well as the concomitant right to withdraw previously given consent.

Reversed and remanded.

ALTENBERND, A.C.J., Concurs specially.

DAVIS, J., Dissents with opinion.

ALTENBERND, Acting Chief Judge, concurring.

I concur in the majority decision. Law enforcement has a vital need to engage citizens on the street and to conduct field interrogations. Citizens should be encouraged to cooperate with such encounters. The methods demonstrated in this case, however, by which an initial encounter subtly evolves into an oral cavity search, serve to discourage reasonable, law-abiding citizens from cooperating during a field interrogation. Neither the Fourth Amendment nor the policies of neighborhood policing should authorize this method.

I am inclined to believe that our case law explaining consensual encounters is unintentionally expanding the parameters of these encounters beyond the "minimal police contact" authorized by the supreme court in Popple v. State, 626 So.2d 185, 186 (Fla.1993). Although Justice Grimes, writing for the majority, stated that "no litmus-paper test" exists to separate encounters from seizures, he emphasized that "a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person's freedom to leave or freedom to refuse to answer inquiries." Id. at 187. This analysis should be performed from the perspective of a reasonable person, untrained in the law, deciding whether he or she is free to end the encounter. It is helpful to remember that such an encounter is permissible and is not regarded as a seizure because it is the equivalent of two ordinary citizens engaging in a personal discussion. See United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In this case, I believe that the consensual encounter ended prior to the oral cavity search. The oral cavity search exceeded the scope of the search Mr. Smith authorized during the "minimal" encounter. I agree that a lawful citizen encounter existed when the officer first asked if Mr. Smith "minded" if the officer "conducted a search of him." The officer did not explain, however, that his search was intended to find drugs, but only asked whether Mr. Smith had anything "illegal on his person." A reasonable person engaged in "minimal" contact with an officer might well expect that the officer wanted to perform a pat-down of "his person," and not a dental examination.

I place considerable importance upon the fact that the officer took Mr. Smith's cigarettes and money away from him and did not ask to perform an oral cavity search until he had possession of this property. Most reasonable people would not feel free to walk away from an officer who had their money. I conclude that the combination of retaining the money and cigarettes on the hood of the police car after an initial physical search, while expanding the search request to include an oral cavity search, transforms this "minimal" encounter into an illegal seizure. I recognize that this analysis tends to blur the distinction between the issue of seizure and the issue of consent to search, but when considering all the circumstances surrounding the officer's "show of authority," these two factors are both relevant. Only a person possessing a degree of authority can legitimately ask a stranger on the street if he may conduct an oral cavity search. There is no dispute about the facts within this record. I believe, as a matter of law, we are entitled to reject the trial court's conclusion and to hold that these...