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
S. Joffe, Alternate Defense Counsel, Denver, Colorado, for
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.
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
4 The officers then requested that the driver and all of his
passengers, including Carr, exit the vehicle and sit on the
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]
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. 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. ...