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People v. Carr

Court of Appeals of Colorado, Seventh Division

November 17, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Tio Everette Carr, Defendant-Appellant.

          Arapahoe County District Court No. 14CR695 Honorable David W. Marshall, Judge Honorable Elizabeth Beebe Volz, Judge

          Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Danyel S. Joffe, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER, JUDGE

          ¶ 1 A jury convicted defendant, Tio Everette Carr, of possession of a schedule II controlled substance with the intent to distribute and obstructing government operations. His sole contention on appeal is that the non-consensual search of his mouth, during which the police discovered unlawful drugs, violated the Fourth Amendment and the trial court thus erred in failing to suppress the evidence obtained during that search. Because the search did not violate Carr's Fourth Amendment rights, we affirm.

         I. Relevant Facts and Procedural History

         ¶ 2 A police surveillance team identified the vehicle Carr was riding in as possibly being involved in drug sales. As the vehicle left a parking lot, the driver failed to use his turn signal. The surveillance team tasked two officers to follow the vehicle. When the officers observed the vehicle speeding and weaving into another lane, they pulled it over.

         ¶ 3 The first officer approached the driver's side of the vehicle and smelled alcohol and marijuana. While the first officer was approaching the driver, the second officer approached the passenger side of the vehicle and asked Carr for his driver's license. Carr was silent while handing it to the officer and would not look at the officer or verbally respond to his questions. Throughout this interaction, Carr had an unlit cigarette hanging from his lips.

         ¶ 4 The officers then requested that the driver and all of his passengers, including Carr, exit the vehicle and sit on the curb.

         ¶ 5 While the passengers were sitting on the curb, the second officer noticed that Carr was making chewing motions with his jaw and had a "golf-ball sized" bulge in his cheek. The officer pointed this bulge out to another officer within Carr's hearing and, according to the testimony of one of the officers at the suppression hearing, upon hearing that, Carr started "squirming" and "fidget[ing] around."

         ¶ 6 From his training and experience, the second officer was aware that drug dealers sometimes would put drugs in their mouths when confronted by the police. He also knew the police surveillance team suspected the stopped vehicle was involved in drug sales. Based on his experience, Carr's silence, and Carr's actions, the second officer asked another officer to handcuff Carr.

         ¶ 7 Carr then began to attempt to chew and swallow the objects in his mouth. He refused the officers' commands to spit them out. He squirmed and thrashed to keep his head out of the officers' reach.

          ¶ 8 Fearing that Carr would swallow what was in his mouth, both destroying potential evidence and possibly harming himself by ingesting drugs, the officers attempted to retrieve whatever was in Carr's mouth. The officers forced Carr to the ground. The second officer grabbed Carr's chin with one hand and pressed on the nerve behind his jaw with the other. The pain caused Carr to open his mouth and spit out a plastic bag. While the second officer was forcing open Carr's mouth, another officer straddled Carr and searched his mouth with her fingers and then a pen.[1] At some point in this process, Carr's lip began to bleed.

         ¶ 9 One of the officers called the Aurora Fire Department to provide medical treatment for Carr. They arrived with an ambulance and placed Carr on a gurney. The second officer then saw additional bags in Carr's mouth as he again began to chew and swallow. In response, the officer pulled forward Carr's jaw so that he could not swallow. He recovered another three bags from Carr's mouth. In total, ten bags were recovered from Carr.

         ¶ 10 The contents of the bags tested positive for cocaine, and the prosecution charged Carr with possession of a schedule II controlled substance with the intent to distribute, criminal attempt to commit assault in the second degree, and obstructing government operations.

         ¶ 11 Carr moved to suppress all evidence resulting from the search of his mouth. After a hearing on the motion, the trial court found the officers had probable cause to arrest Carr, and that the search of Carr's mouth was a lawful search incident to arrest. ...


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