CO: Officers had clear indication def had drugs in mouth for body search on exigency

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.

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