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M.J.S. v. State

District Court of Appeal of Florida, Second District
Jun 25, 1993
620 So. 2d 1080 (Fla. Dist. Ct. App. 1993)

Summary

holding that the defendant's startled reaction to seeing the officer and subsequent attempt to conceal something in his mouth "did not give the police officer a reasonable suspicion or probable cause to believe that the [defendant] was involved in criminal activity"

Summary of this case from Peynado v. State

Opinion

No. 92-01622.

June 25, 1993.

Appeal from the Circuit Court, Polk County, Joe R. Young, Jr., J.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.


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.


Summaries of

M.J.S. v. State

District Court of Appeal of Florida, Second District
Jun 25, 1993
620 So. 2d 1080 (Fla. Dist. Ct. App. 1993)

holding that the defendant's startled reaction to seeing the officer and subsequent attempt to conceal something in his mouth "did not give the police officer a reasonable suspicion or probable cause to believe that the [defendant] was involved in criminal activity"

Summary of this case from Peynado v. State

In M.J.S. v. State, 620 So.2d 1080 (Fla. 2d DCA 1993), the appellant was standing on the porch of a house under surveillance for suspected drug activity, when police officers approached.

Summary of this case from Welch v. State
Case details for

M.J.S. v. State

Case Details

Full title:M.J.S., APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jun 25, 1993

Citations

620 So. 2d 1080 (Fla. Dist. Ct. App. 1993)

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