There was a clear indication that defendant had hidden drugs in his mouth, and that was exigency for a search of his mouth. When the state as appellee argues there is probable cause for defendant’s arrest and the opening brief wasn’t clear, the defendant must answer in reply or it’s conceded. People v. Carr, 2016 COA 168, 2016 Colo. App. LEXIS 1611 (Nov. 17, 2016):
A. The Officers Had a Clear Indication That There Was Incriminating Evidence in Carr’s Mouth
[*16] Neither the United States Supreme Court nor the Colorado Supreme Court has defined “clear indication.” We thus seek guidance from courts in other jurisdictions.
[*17] In State v. Alverez, the Utah Supreme Court concluded that officers had a “clear indication that a search would uncover drugs concealed in [Alverez’s] mouth.” 147 P.3d 425, 435 (Utah 2006). Alverez drove a vehicle the officers suspected was involved in drug sales. The officers observed a “representation” of the “patron saint” of unlawful drug dealings and a bottle of water (which the officers knew could be used to swallow drugs hidden in the mouth) in the vehicle. Id. at 430. When the officers questioned Alverez, they noticed he was particularly nervous and was manipulating objects in his mouth. From their training, the officers suspected Alverez had drugs in his mouth which he was attempting to swallow. The court reasoned that “it was [Alverez’s] reaction to the officers’ request to open his mouth, in addition to the earlier factors, that gave rise to a clear indication.” Id. at 435.
[*18] In State v. Harris, the Nebraska Supreme Court held there was a “clear indication” that Harris had drugs in his mouth based on similar circumstances. 505 N.W.2d 724, 731 (Neb. 1993). There, the officers searched Harris’ mouth in an interview-detention room. Harris had been arrested for a weapons violation, and police found Zig-Zag cigarette papers, sometimes used to smoke marijuana; an electronic pager; and a digital gram scale in his car. The officers also had confiscated marijuana from the passenger in Harris’ car. At least one officer at the scene suspected that someone was dealing drugs from Harris’ car. Harris was waiting to be strip-searched when [an officer] saw him chewing something. Harris refused to let [the officer] see what was in his mouth and refused to spit the crack cocaine out upon the officer’s order.
Id. at 731-32. The court concluded that these circumstances were sufficient, in addition to the officer’s experience, for her to have “a clear indication that she would find incriminating evidence in Harris’ mouth.” Id. at 732.
[*19] Here, as in the above-cited cases, the officers believed that Carr was in a vehicle that was suspected to be involved in drug dealing. They saw a large bulge in his mouth. He refused to speak to the officers3 or reveal what was in his mouth. He was trying to chew or swallow what was in his mouth. The officers had experience or training that indicated that suspects would attempt to swallow drugs. And as in Alverez, the suspect began to act furtively once an officer pointed out the bulge in his mouth. 147 P.3d at 435.
[*20] On these facts, we conclude that there was a “clear indication” that searching Carr’s mouth would uncover drugs.
B. There Were Exigent Circumstances That Negated the [**10] Officers’ Need to Acquire a Warrant
[*21] In the absence of exigent circumstances, warrantless internal body searches violate the Fourth Amendment. Schmerber, 384 U.S. at 770. “Exigent circumstances may exist when (1) the police are engaged in a bona fide pursuit of a fleeing suspect, (2) there is a risk of immediate destruction of evidence, or (3) there is a colorable claim of emergency threatening the life or safety of another.” People v. Crawford, 891 P.2d 255, 258 (Colo. 1995).
[*22] No one, much less a police officer without medical training, can know with certainty what will happen when packaged drugs are swallowed. People v. Cappellia, 256 Cal. Rptr. 695, 700 (Cal. Ct. App. 1989). The police officers were not physicians, and they were required to make an immediate judgment of whether exigent circumstances existed. They did not know whether the evidence was packaged in a manner such that it would successfully pass through Carr’s digestive tract. Even if it was so packaged, when the officers pointed out the bulge in Carr’s mouth, he began to try to chew and swallow, which may have broken the seal of one of the bags in his mouth. Under these circumstances, it was reasonable for the officers to believe that the evidence would be destroyed unless they took immediate action. In other words, there were exigent circumstances that justified the search of Carr’s mouth.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)