Crawford v. State

980 So. 2d 521, 2007 WL 4180876
District Court of Appeal of Florida·Decided November 28, 2007·No. 2D06-557·Published·Cited by 3 cases

Opinion

980 So.2d 521 (2007)

Chauncey CRAWFORD, Appellant,
v.
STATE of Florida, Appellee.

No. 2D06-557.

District Court of Appeal of Florida, Second District.

November 28, 2007.

*522 James Marion Moorman, Public Defender, and Alisa M. Smith, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

In this appeal from his conviction for possession of cocaine, Chauncey Crawford challenges the denial of his dispositive motion to suppress crack cocaine improperly seized after he consented to a patdown during a traffic stop. Because we agree that the seizure was unlawful under the Fourth Amendment of the United States Constitution and Article 1, section 12, of the Florida Constitution, we reverse his conviction for the possession of cocaine.

STATEMENT OF THE FACTS

Mr. Crawford was a passenger in a car St. Petersburg police stopped for running a stop sign. After the car was stopped, Mr. Crawford got out of the car. Officer Michael Bush approached Mr. Crawford who, while turning away, fumbled at his waistband. Officer Bush asked Mr. Crawford not to turn his body away and to stop fumbling at his waist. Mr. Crawford continued the behavior but volunteered to provide the officer his identification card. At that moment, Officer Bush noticed a cylindrical shaped bulge approximately five or six inches long and a few inches wide in Mr. Crawford's right pants pocket. Officer Bush testified he had not witnessed any criminal activity by Mr. Crawford but that Mr. Crawford's fidgety manner, baggy clothing, and the bulge in his pocket made him concerned for his safety. The officer testified, "I did not want to search him, but I did want to pat him down because he was making me nervous. . . . When I asked him, or when I told him that I wasn't going to search him, but I did want to pat him down, because he was making me nervous, he paused for a moment . . . then said, `Go ahead.'" During this patdown, Officer Bush felt the cylindrical tube and immediately recognized it as a cylindrical M & M candy container. The container rattled when Officer Bush patted it. He testified that he knew from the sound that the tube contained cocaine but admitted that "hearing the rattle is not based on any training at all. It's really just based on being able to hear." Officer Bush removed the tube from Mr. Crawford's pocket, opened it, and found ten pieces of crack cocaine. Officer Bush testified that he has been a police officer for sixteen years, has worked in narcotics investigations for ten years, and has made over 100 arrests where crack cocaine was found inside cylindrical candy containers. Officer Bush stated that, "I've never seen *523 anything other than crack in those containers. In fact, I've never seen M and M's [sic] in an M & Ms container." He arrested Mr. Crawford for possession of cocaine.

STANDARD OF REVIEW

Appellate review of a motion to suppress is a mixed question of law and fact. Bautista v. State, 902 So.2d 312, 314 (Fla. 2d DCA 2005). Deference is given to the trial court's factual findings if they are supported by competent and substantial evidence. Id. (citing Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003)). However, this court has an "independent obligation to review the ultimate question of probable cause and reasonable suspicion" under a de novo standard to make certain law enforcement practices remain within constitutional parameters. Connor v. State, 803 So.2d 598, 606 (Fla.2001).

Here we conclude the officer's search exceeded the scope of the search circumscribed by consent for officer safety. See Howard v. State, 645 So.2d 156, 157-58 (Fla. 4th DCA 1994). Additionally, we conclude the officer's seizure of the candy container and its contents was not justified by either probable cause or the "plain-feel" doctrine exception to the warrant requirement. See P.L.R. v. State, 455 So.2d 363 (Fla.1984); E.B. v. State, 866 So.2d 200 (Fla. 2d DCA 2004). Consequently, we conclude the subsequent search of the M & M container to determine its contents was also not valid without a warrant. See Howard, 645 So.2d at 157-58.

ANALYSIS

To validate the warrantless search of Mr. Crawford and the seizure of the M & M container, the State must prove it either falls into one of the recognized exceptions to the constitutional warrant requirement or that the police had probable cause to arrest Mr. Crawford. See E.B., 866 So.2d at 202. The two exceptions pertinent to our analysis are consent and the "plainfeel" doctrine. We also evaluate whether probable cause to arrest existed to justify the officer's search of Mr. Crawford beyond his consent.

Consent

It is not disputed that Mr. Crawford consented to a patdown for officer safety. In fact, Officer Bush testified that he told Mr. Crawford he was "not going to search him" and wanted permission to "pat him down out of a concern for officer safety." When relying upon the consent to justify a search, Officer Bush had no more authority than that reasonably conferred by the terms of Mr. Crawford's consent. See Alamo v. State, 891 So.2d 1059, 1061 (Fla. 2d DCA 2004). "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Once the officer identified that the bulge in Mr. Crawford's pocket was a candy container and not a weapon, we hold any further search was beyond the scope of Mr. Crawford's consent. See Frazier v. State, 789 So.2d 486 (Fla. 2d DCA 2001) (holding that when a patdown discovers nothing which could be a weapon, the officer's inquiry should end); Winters v. State, 578 So.2d 5 (Fla. 2d DCA 1991) (holding that cocaine was not properly seized because the search of the defendant's pocket exceeded the scope of a weapons search); Baldwin v. State, 418 So.2d 1219 (Fla. 2d DCA 1982) (holding that when an officer knows the object is not a weapon, he may not legally reach into a person's pocket and remove it); Meeks v. State, 356 So.2d 45 (Fla. 2d DCA 1978) (holding that the removal of a lump of marijuana from the defendant's pocket was improper because the officer knew that it was not a weapon).

*524 In sum, Officer Bush's search should have ended when he identified the object as a candy container. It did not. And although the officer's experience with narcotics cases might have led him to believe that the opaque candy container held crack cocaine, he was only permitted to pat down Mr. Crawford for safety. The record suggests that Officer Bush believed he was within the "plain feel" exception to the warrant requirement. We analyze this exception next.

Plain-Feel Doctrine

The "plain-feel" doctrine is derived from the "plain-view" doctrine. The rationale underlying the "plain-view" doctrine is that if the contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their advantage point." Minnesota v. Dic

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Crawford v. State, 980 So. 2d 521, 2007 WL 4180876 (Fla. Ct. App. 2007).

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