COLORADO COURT OF APPEALS                                      2016COA168


Court of Appeals No. 15CA1007
Arapahoe County District Court No. 14CR695
Honorable David W. Marshall, Judge
Honorable Elizabeth Beebe Volz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tio Everette Carr,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division VII
                         Opinion by JUDGE BERGER
                         Terry and Booras, JJ., concur

                        Announced November 17, 2016


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
¶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

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 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.

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¶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




 1 It was unclear whether officers actually used a pen to explore
 Carr’s mouth. The testimony at the hearing does not support a
 finding that they used a pen. However, a police report admitted
 into evidence at the hearing does support such a finding. The trial
 court made no such finding either way. In any event, the use or
 non-use of the pen does not affect our analysis.
                                    3
  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. Carr

  appeals the denial of his motion to suppress and the judgment of

  conviction.

                        II.   Standard of Review

¶ 12   A trial court’s suppression ruling presents a mixed question of

  fact and law. People v. Medina, 25 P.3d 1216, 1223 (Colo. 2001).

  This court defers to the trial court’s findings of fact, unless they are

  clearly erroneous, but reviews its conclusions of law de novo.

  People v. Gothard, 185 P.3d 180, 183 (Colo. 2008).



                                     4
       III.   The Search Did Not Violate the Fourth Amendment

¶ 13    The Fourth Amendment to the United States Constitution and

  article II, section 7 of the Colorado Constitution protect individuals

  against unreasonable searches and seizures. People v. Brown, 217

  P.3d 1252, 1255-56 (Colo. 2009). A warrantless arrest or search

  must be supported by probable cause, People v. Turner, 660 P.2d

  1284, 1287 (Colo. 1983), and “because of the special insult to

  human dignity involved when police seek evidence in body

  apertures or bodily fluids, special rules restrict internal body

  searches.” People v. Williams, 192 Colo. 249, 257, 557 P.2d 399,

  406 (1976). The Supreme Court promulgated these special rules in

  two seminal cases: Schmerber v. California, 384 U.S. 757 (1966),

  and Winston v. Lee, 470 U.S. 753 (1985). Schmerber described the

  criteria that authorize a constitutional warrantless internal body

  search,2 384 U.S. at 768-72, and Winston refined these criteria, 470

  U.S. at 761-62.




  2The Colorado Supreme Court expressly acknowledged and
  approved these criteria in People v. Sutherland, 683 P.2d 1192,
  1194 (Colo. 1984).
                                     5
¶ 14   We first address whether the issue of probable cause is

  properly before this court. Although it appears that Carr argued in

  the trial court that there was no probable cause to arrest him prior

  to when the officers forced the bag from his mouth, our careful

  review of the appellate briefs demonstrates that any such argument

  was abandoned on appeal. Indeed, the Attorney General’s answer

  brief clearly asserts that Carr did not raise the probable cause

  determination on appeal. Despite this clear statement of position

  by the Attorney General, Carr does not take issue with the

  statement in his reply brief and he does not address at all the

  question of whether or when probable cause arose to justify his

  arrest. People v. Bondsteel, 2015 COA 165, ¶ 61 n.6 (cert. granted

  October 31, 2016). Under these circumstances, we conclude that

  the only question before us is whether the officers met the

  additional requirements imposed by Schmerber for an internal body

  search. We thus assume that probable cause supported Carr’s

  arrest and the search incident to arrest.

¶ 15   In Schmerber, the Supreme Court held that, in addition to

  probable cause for the arrest of the suspect, the Fourth Amendment

  requires the state to prove three factors to render a warrantless

                                    6
  internal body search constitutional: (1) a “clear indication” that

  incriminating evidence will be found; (2) exigent circumstances that

  justify the intrusion and make it impractical to obtain a search

  warrant; and (3) extraction of the evidence in a reasonable manner

  and by a reasonable method. Schmerber, 384 U.S. at 768-72.

       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


                                     7
  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.



                                      8
¶ 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.4



  3 Carr’s silence is significant, for these purposes, not so much
  because he was not speaking, but because he was not opening his
  mouth to do so.
  4 We recognize that the trial court did not make such a finding.

  Indeed, as Carr correctly notes, the trial court did not address the
  Schmerber factors at all. Nevertheless, we reject the Attorney
  General’s argument that the trial court’s decision prevents us from
  considering Schmerber on appeal. Carr argued in the trial court
  that Schmerber applied. The fact that the trial court did not
  address Schmerber in its order does not bar this court from
  resolving the issue. People v. Johnson, 865 P.2d 836, 840 (Colo.
  1994). The historical facts are not in substantial dispute, or in
  need of development, and the legal significance of those facts is a
  question of law that we may decide without remanding to the trial
  court. People v. Barry, 2015 COA 4, ¶ 53.
                                      9
   B.   There Were Exigent Circumstances That Negated the 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.5 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


  5 Some courts have held that officers should recognize certain types
  of packaging as being immune to dissipation in the digestive
  process. See People v. Bracamonte, 540 P.2d 624, 631 (Cal. 1975).
                                    10
  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.6 In other words, there were

  exigent circumstances that justified the search of Carr’s mouth.

      C.    The Officers Searched Carr’s Mouth in a Reasonable Manner

¶ 23       Having determined there were exigent circumstances, we now

  address whether the officers performed the search by a reasonable

  method and in a reasonable manner.

¶ 24       In Winston, the Supreme Court adopted a three-part balancing

  test to determine when a particular search method is reasonable.

  470 U.S. at 761-62. The test balances (1) “the extent to which the

  procedure may threaten the safety or health of the individual” and

  (2) “the extent of intrusion upon the individual’s dignitary interests

  in personal privacy and bodily integrity” against (3) “the

  community’s interest in fairly and accurately determining guilt or

  innocence.” Id.



  6 In view of our disposition, we need not address the alternative
  ground raised by the Attorney General that there was a colorable
  claim of an emergency threatening Carr’s health.
                                     11
¶ 25   In some cases, the amount of force used threatens the safety

  or health of the suspect to such a degree that a Fourth Amendment

  violation is obvious. For example, in Hereford v. State, the court

  held that tasing a suspect at least eight times while he was

  handcuffed, and after any exigent circumstances had passed, was

  unreasonable. 339 S.W.3d 111, 119 (Tex. Crim. App. 2011).

  Courts have reached similar results in other cases. See Conwell v.

  State, 714 N.E.2d 764, 765 (Ind. Ct. App. 1999) (holding that

  choking a suspect and macing his face twice was unreasonable);

  State v. Tapp, 353 So. 2d 265 (La. 1977) (holding that a struggle

  that lasted fifteen to twenty minutes where officers pummeled the

  suspect’s head and face and then pinched his nose to cut off his

  breathing was unreasonable).

¶ 26   The first prong of this test has mainly evolved in response to

  two particular search methods: (1) serious medical interventions or

  drug-induced vomiting and (2) the application of force to the throat

  to prevent swallowing. Alverez, 147 P.3d at 437.

¶ 27   Courts generally disapprove of the first type of method. The

  Supreme Court has held that both the surgical extraction of a bullet

  from a suspect to use as evidence against him, Winston, 470 U.S. at

                                   12
  766, and the forced pumping of a suspect’s stomach, Rochin v.

  California, 342 U.S. 165, 172-74 (1952), were unreasonable. But

  see State v. Strong, 493 N.W.2d 834, 837 (Iowa 1992) (permitting

  the pumping of the stomach).

¶ 28   In other cases, particularly when force is applied to the

  suspect’s throat — force that could curtail breathing, lead to a loss

  of consciousness, and possibly cause death — courts are divided in

  the amount of force that officers can reasonably apply. In State v.

  Lewis, the court held that applying a chokehold and slapping the

  suspect’s back was reasonable. 566 P.2d 678, 681 (Ariz. 1977);

  accord Harris, 505 N.W.2d at 731 (holding that the use of a lateral

  vascular neck restraint and Heimlich-type maneuver was

  reasonable); Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim.

  App. 1977) (holding that the choking of a suspect was reasonable).

¶ 29   In other cases, courts have permitted some pressure on a

  suspect’s throat. In Cappellia, the court held that placing pressure

  on the suspect’s throat was reasonable only if it did not restrict the

  suspect’s breathing. 256 Cal. Rptr. at 700; accord People v.

  Holloway, 330 N.W.2d 405, 410 (Mich. 1982) (holding that it was

  reasonable to apply pressure to a suspect’s throat if that pressure

                                    13
  did not cut off blood or air supply); State v. Taplin, 676 P.2d 504,

  506 (Wash. Ct. App. 1984) (holding that whether a chokehold is

  unreasonable depends on whether the hold completely obstructs

  the suspect’s breathing).

¶ 30   Here, the officers applied physical force to the back of Carr’s

  jaw and chin, in an effort to pry open his mouth, and searched his

  mouth with their fingers and then, possibly, a pen. While the

  officers caused Carr’s lip to bleed, they did not force him to undergo

  any invasive medical procedures or apply force to his throat. Under

  these circumstances, we conclude that the officers’ search

  procedure posed a minimal amount of risk to Carr’s safety and

  health.

¶ 31   The second part of the Winston test focuses on the officers’

  intrusions on Carr’s privacy and dignity, rather than his physical

  safety. Winston, 470 U.S. at 762. While officers searched Carr’s

  mouth, Winston does not prohibit all intrusions and, as the

  California Supreme Court observed, “the mouth is not a sacred

  orifice.” Bracamonte, 540 P.2d at 632 n.6. The officers’ search,

  under these circumstances, was not an unreasonable invasion of



                                    14
  his body. The officers’ intrusion on Carr’s privacy and dignity was

  relatively limited.

¶ 32   The final part of the Winston test considers the community

  interest in correctly determining guilt or innocence, which includes

  the need to preserve evidence. Winston, 470 U.S. at 762. As we

  concluded above, the officers had reason to believe that Carr would

  destroy the evidence unless they intervened. Thus, the community

  had a strong interest in retrieving the potential evidence from Carr’s

  mouth.

¶ 33   Balancing all three of the Winston considerations, we conclude

  that the officers retrieved the evidence in a reasonable manner and

  by a reasonable method. The minimal risk to Carr’s health and

  safety and the intrusions on his privacy and dignity do not

  outweigh the community’s interest in retrieving the bags in order to

  determine fairly his guilt or innocence.

                           IV.   Conclusion

¶ 34   For the foregoing reasons, we conclude that the search of

  Carr’s mouth did not violate his Fourth Amendment rights, and

  accordingly, the judgment of conviction is affirmed.

       JUDGE TERRY and JUDGE BOORAS concur.

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