Opinion
No. 1D18-4998
12-10-2019
Jevin HILLIARD, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.
B.L. THOMAS, J.
Appellant challenges the trial court's denial of his motion to suppress evidence found after a pat down of Appellant and retrieved by cutting a hole in Appellant's underwear. We affirm.
Officer White responded to a traffic stop in progress at an apartment complex in Alachua County, Florida. When he approached the vehicle, he smelled the faint odor of cannabis. Based on the odor of cannabis, Officer White and the other officers decided to conduct a search of the vehicle.
As Appellant exited the vehicle, Officer White noticed a very strong smell of cannabis emanating from him. Officer White decided to conduct a search of Appellant's person. While searching Appellant, Officer White felt a foreign object in Appellant's clothing. Officer White placed Appellant in handcuffs and then attempted to retrieve the object in Appellant's underwear by reaching up Appellant's pant leg and shaking his shorts repeatedly. When this was unsuccessful, Officer White retrieved the object by cutting a hole in Appellant's underwear. Officer White cut about a one-inch hole in the underwear and pulled a baggie of methylenedioxymethamphetamine (MDMA) from Appellant's underwear.
Appellant moved to suppress the evidence, which alleged that the search was unreasonable. Appellant then pled no contest to the charge, reserving his right to appeal the denial of his motion to suppress.
Appellant argues here that the search and the cutting of his underwear were unreasonable under the Fourth Amendment and the trial court erred in denying his motion to suppress. "In reviewing a trial court's ruling on a motion to suppress, the appellate courts defer to the trial court's factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question of whether there was probable cause given the totality of the circumstances." State v. Hankerson , 65 So. 3d 502, 506 (Fla. 2011). "The ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski , 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Determining reasonableness requires balancing the need for the particular search against the invasion of personal rights that the search entails. Id.
"[T]he odor of burnt cannabis emanating from a vehicle constitutes probable cause to search all occupants of that vehicle." State v. Williams , 967 So. 2d 941 (Fla. 1st DCA 2007). Thus, Officer White had probable cause to search Appellant based on the odor of marijuana coming from the vehicle and the odor coming from Appellant's person. The issue is whether the method Officer White used in conducting the search and retrieving the contraband from Appellant's underwear was reasonable.
The Florida Supreme Court upheld a "reach-in" search where a confidential informant informed officers that the defendant sold cocaine and no drugs were found as a result of a pat-down search and the search of the defendant's vehicle. Jenkins v. State , 978 So. 2d 116, 118 (Fla. 2008). The officer pulled back the defendant's boxer briefs and observed a sandwich bag sticking out from the defendant's body. Id. The officer removed a sandwich bag containing crack cocaine. Id.
Here, Officer White had more probable cause to conduct a "reach-in" search of Appellant's underwear than the officer in Jenkins . Id. He smelled a strong odor of cannabis coming from Appellant, and he felt an object in Appellant's underwear. Officer White also attempted to retrieve the contraband by shaking Appellant's shorts before he resorted to cutting his underwear. Once Officer White failed to retrieve the contraband by shaking Appellant's shorts, he could lawfully have used the "reach-in" method to retrieve the contraband. See Powell v. State , 898 N.E.2d 328, 335 (Ind. Ct. App. 2008) (finding a search reasonable where an officer used a pocket knife to retrieve contraband from a defendant's underwear where he could not figure out another way to get it out and none of the defendant' skin was exposed); Partlow v. State , 199 Md.App. 624, 24 A.3d 122, 133-34 (2011) (upholding a search where the officer was unable to retrieve contraband from defendant's underwear, so he used a pocket knife to remove a portion of the defendant's underwear which left part of his body exposed); Harden v. Flowers , No. 01 C 7878, 2003 WL 1989616, at *5 (N.D. Ill. Apr. 29, 2003) (finding a search reasonable where an officer pulled the defendant's pants down after he was unable to retrieve the contraband and sliced a hole in the defendant's underwear).
Officer White's actions were proper in this case. Therefore, the search and seizure was reasonable under the Fourth Amendment.
AFFIRMED .
Rowe, J., concurs; Bilbrey, J., concurs in result with opinion.
Bilbrey, J., concurring in result.
As the majority opinion points out, based on existing caselaw, there was clearly probable cause to stop and frisk Appellant due to the odor of marijuana. See Johnson v. State , 275 So. 3d 800 (Fla. 1st DCA 2019). And when that frisk revealed the likelihood of contraband in Appellant's underwear, additional searching including a "reach-in" search was permissible. See Jenkins v. State , 978 So. 2d 116 (Fla. 2008). As the United States Supreme Court has stated, in determining whether a search is reasonable, an appellate court must evaluate each case "based ‘on its own facts and circumstances.’ " Missouri v. McNeely , 569 U.S. 141, 150, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (citing Go-Bart Importing Co. v. United States , 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931) ). "[T]here is ‘no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.’ " Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citing Camara v. Municipal Court , 387 U.S. 523, 534-35, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ).
A few factors are key to my determination that the search was reasonable. First, the officer who conducted the search was an experienced officer who had conducted a number of drug searches in the past. Second, upon frisking the Appellant the officer clearly felt a foreign object. Third, the Appellant after being frisked became, according to the officer, "very squirmy and closing the legs and moving around." Fourth, before cutting the hole the officer pulled Appellant's underwear away from Appellant's body because, as the officer testified, he did not "want to take any risk of cutting him or anything like that, so I was very careful to pull the underwear down away from his body the best I could."
I do not opine whether what occurred was or was not a best police practice. But given that the officer could have, under Jenkins , reached into Appellant's underwear and presumably touched Appellant's genitals, I cannot say under the totality of the circumstances here that the search was unreasonable as a matter of law. I therefore agree we are correct to affirm the denial of Appellant's motion to suppress.