State v. Witherspoon, 2D05-3429.

• Decision Date: 24 February 2006
• Docket Number: No. 2D05-3429.,2D05-3429.
• Citation: 924 So.2d 868
• Parties: STATE of Florida, Appellant, v. Wallie M. WITHERSPOON, Appellee.
• Court: Florida District Court of Appeals

924 So.2d 868

STATE of Florida, Appellant, v. Wallie M. WITHERSPOON, Appellee.

No. 2D05-3429.

District Court of Appeal of Florida, Second District.

February 24, 2006.

Rehearing Denied April 11, 2006.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellee.

VILLANTI, Judge.

The State appeals the trial court's order granting Wallie Witherspoon's motion to suppress a baggie containing cocaine and marijuana seized from his mouth after he consented to a pat-down search. Because there was probable cause to believe that there was contraband in Witherspoon's mouth, we reverse.

At about midnight on October 8, 2004, a police officer saw Witherspoon walk across 5th Avenue South in St. Petersburg. The officer pulled his patrol car off the road and approached Witherspoon. The officer told Witherspoon that he was conducting field interrogations and wanted to ask a few questions. Witherspoon agreed. After talking for awhile, the officer asked Witherspoon if he could pat him down. Witherspoon again agreed. During the pat-down search, the officer felt what he believed to be a small baggie of marijuana in Witherspoon's pants pocket. The officer testified that he "felt a bulging, consistent with something that usually marijuana is packaged in" and that the bulge felt consistent with what could "possibly be drugs."

The officer did not immediately reach into Witherspoon's pocket or order him to remove the object from his pocket. Instead, he first asked Witherspoon what the bulge was, and Witherspoon admitted that it was marijuana.¹ Because Witherspoon was making the officer nervous with his furtive movements, the officer then decided to call for a back-up unit before searching Witherspoon's pocket. Before the back-up unit arrived, the officer asked Witherspoon to keep his hands on the car. Witherspoon kept moving his hands. According to the officer, Witherspoon "made several movements toward his pocket ... that the marijuana was in." Witherspoon then moved his hand toward his mouth; the officer believed that Witherspoon was putting the contraband in his mouth.

When the back-up unit arrived, the officer reached into Witherspoon's pocket and came up empty-handed. The marijuana the officer previously felt was gone. The officer asked Witherspoon where the marijuana was, and Witherspoon could not respond because his mouth was full. Witherspoon was asked by the officer three or four times to open his mouth, and Witherspoon eventually spit out a baggie containing marijuana and cocaine.

Witherspoon moved to suppress the evidence. The court granted his motion, finding that although Witherspoon consented to a pat down, he withdrew his consent by refusing to open his mouth.

In reviewing a motion to suppress, the standard of review for the trial court's application of the law to its factual findings is de novo. Bautista v. State, 902 So.2d 312, 314 (Fla. 2d DCA 2005). However, this court must "defer to the factual findings of the trial court that are supported by competent, substantial evidence." Id. (quoting Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003)).

The officer's initial contact with Witherspoon is a classic example of a consensual citizen encounter. See Augustin v. State, 666 So.2d 218, 220-21 (Fla. 2d DCA 1995) (describing the typical consensual citizen encounter as a voluntary meeting of two or more people in a public place when an officer "merely approach[es] an individual on the street or in another public place, by asking him if he is willing to answer some questions.... No member of the meeting is compelled to attend" the officer's "invocation of his or her freedom of public assembly."). The officer parked next to the road, he was not blocking Witherspoon, he approached Witherspoon alone, he asked Witherspoon to speak with him, and Witherspoon agreed. During a consensual encounter, a citizen may comply with a police officer's requests or ignore them. Because the citizen is free to leave, constitutional safeguards are not invoked. Mayhue v. State, 659 So.2d 417, 418 (Fla. 2d DCA 1995) (citing Popple v. State, 626 So.2d 185, 186 (Fla.1993)).

During the officer's conversation with Witherspoon, he asked for consent to pat him down. An officer need not have a reasonable suspicion of criminal activity before seeking consent to search. Watts v. State, 788 So.2d 1040, 1042 (Fla. 2d DCA 2001). The record supports the trial court's finding that Witherspoon voluntarily consented to a pat down.

During the pat down, the officer felt what he believed could "possibly" be a small baggie of marijuana in Witherspoon's pants pocket. At this point, the officer probably did not have the authority to either reach into Witherspoon's pocket or order Witherspoon to remove the object from his pocket. See E.B. v. State, 866 So.2d 200, 203 (Fla. 2d DCA 2004) ("[I]n the absence of additional circumstances which would justify a more complete search, consent to a mere patdown does not include consent to reach into...