Cummo v. State

In Cummo v. State, 581 So. 2d 967 (Fla. 2d DCA 1991)the defendant was stopped by Officer Mohaupt of the Punta Gorda Police Department for operating his pickup truck with only one headlight. Since the stop occurred in a high crime area, backup officers were called to the scene as a matter of routine. Detective Wright was one of the backup officers dispatched. Upon his arrival at the scene, Detective Wright was informed by Officer Mohaupt that he, Mohaupt, had stopped Cummo in the same area approximately one month earlier. At that time, Cummo had admitted to Officer Mohaupt that he was in the area to buy cocaine. Detective Wright approached the vehicle and began talking with Cummo. He observed Cummo had something in his mouth which he appeared to be trying to hide. When Detective Wright asked him a question, Cummo manipulated the object by moving it with his tongue from one cheek to the other and making "a swallowing motion." Suspecting Cummo was attempting to conceal rock cocaine and was thus trying to swallow it, Detective Wright grabbed Cummo "around the throat, bottom of the jaw, trying to lock his jaw so he couldn't swallow." As a result, Cummo "spit out a small amount of crushed crack cocaine on the hood of his vehicle." A field test indicated the substance was, indeed, crack cocaine. In reversing the trial court's denial of the motion to suppress, the Second District Court of Appeal concluded that a police officer, when making a valid stop, may conduct a search incident to the stop if he has probable cause to believe that the person detained is armed with a dangerous weapon. However, the court concluded that there was no testimony in the record indicating that Detective Wright believed that the defendant was armed with a dangerous weapon and further that Wright did not see the object in the defendant's mouth and acknowledged that it could have been a lifesaver or a mint. Since there was no evidence other than the detective's bare suspicion that the object in Cummo's mouth was rock cocaine, the search in this instance was not based on probable cause and, therefore, was invalid.