DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

T.T., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-442

[August 29, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Stacy M. Ross, Judge; L.T. Case No. 17-003976 DLB.

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Paul Patti, III, 

Assistant Attorney General, West Palm Beach, for appellee.

HARPER, BRADLEY, Associate Judge.

This case presents the question of whether the plain touch exception to 

the Fourth Amendment permits an officer, without a warrant, to seize 

objects felt during a weapons search, when the objects are not weapons 

and there is insufficient evidence of contraband. It does not. We reverse 

the defendant’s conviction.

The following evidence was adduced at a hearing on T.T.’s motion to 

suppress. While responding to a traffic stop, an officer observed T.T. 

sitting in the rear passenger seat. The officer engaged T.T. in conversation 

and observed that T.T. had “slurred speech” and “red bloodshot eyes.” The 

officer did not suspect T.T. of criminal activity; however, the officer noticed

that T.T. was nervous and fidgeting with his waistband. Although the 

officer did not see any weapons, he “[f]igured . . . [T.T.] probably had 

something there that was a concern.”

The officer asked T.T. to step out of the vehicle and place his hands on 

the trunk. He conducted a “top to bottom” pat-down search for weapons. 

The officer’s search extended to T.T.’s scrotal area where he felt two “hard,”
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“cylindrical” objects he believed to be containers. The officer knew the two 

objects were not weapons. He could not feel what, if anything, was inside 

the objects. Likewise, there was no testimony that he smelled an odor 

emanating from the objects. The officer subsequently removed the hard 

objects from T.T.’s scrotal area and observed a green, leafy substance; he 

later determined the substance to be marijuana.

At the suppression hearing, the officer testified that he had been 

involved in “probably 50, 100” stops dealing with drugs. Also, he testified 

that “[p]robably eight, five percent of those stops involved marijuana.” 

There was no evidence that he had any experience identifying marijuana 

or illegal cylindrical objects using tactile perception. There was no 

evidence he had previously stopped a juvenile, or anyone else, who hid a 

container with drugs in the scrotal area. There was no testimony to detail 

the experience the officer had, if any, that would allow him to conclude 

that the illegal nature of the containers was immediately apparent based 

on tactile perception.

The officer, nevertheless, concluded that juveniles tend to place illegal 

substances in hard containers and hide the containers in their scrotal 

area. Based on these conclusions, the officer testified that he “immediately 

knew” that the objects in T.T.’s scrotal area contained an illegal substance.

T.T. was charged, by petition for delinquency, with possession of 

cannabis. He filed a pretrial motion to suppress the evidence, arguing that 

the officer conducted a warrantless search without probable cause in 

violation of the Florida and United States Constitutions. The trial court 

denied the motion and T.T. pled no contest to the charges, reserving his 

right to appeal. On review, this court defers to the trial court’s factual 

findings but reviews legal conclusions de novo. See State v. Abbey, 28 So.

3d 208, 210 (Fla. 4th DCA 2010).

The Fourth Amendment protects “[t]he right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable 

searches and seizures.” U.S. Const. amend. VI. “[N]o right is held more 

sacred, or is more carefully guarded, by the common law, than the right of 

every individual to the possession and control of his own person, free from 

all restraint or interference of others, unless by clear and unquestionable 

authority of law.” Terry v. Ohio, 392 U.S. 1, 26 (1968) (citing Union Pac. R. 

Co. v. Botsford, 141 U.S. 250, 251 (1891)); see also Minnesota v. Dickerson, 

508 U.S. 366, 379-83 (1993) (Scalia, J. concurring) (noting that there 

appears to be no clear support at common law for physically searching a 

suspect absent arrest or the degree of cause needed for that purpose).
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Thus, searches and seizures conducted, without prior approval by 

judge or magistrate, are per se unreasonable under the Fourth 

Amendment except when involving the narrow protective search exception 

or the narrow plain view and plain touch extensions of that exception. 

Horton v. California, 496 U.S. 128, 134 (1990).

In Terry v. Ohio, a plurality of the United States Supreme Court 

recognized a “narrowly drawn” exception to the warrant requirement

permitting officers to briefly stop suspicious persons and make 

“reasonable inquiries” aimed at confirming or dispelling suspicions. Terry,

392 U.S. at 26. Given the danger to policemen during these brief stops 

the Court construed this authority also to extend to “[a] reasonable search 

for weapons, where the police officer has reason to believe he is dealing 

with an armed and dangerous individual.” Id. Later, the Court noted that 

the justification of a protective search is gone once it is determined that a 

suspect is not armed. See Dickerson, 508 U.S. at 373 (citing Sibron v. New 

York, 392 U.S. 40, 65–66 (1968)) (finding that when “[t]he protective search 

goes beyond what is necessary to determine if the suspect is armed, it is 

no longer valid under Terry and its fruits will be suppressed”).

The plain view exception allows officers to seize contraband if they can 

view the contraband from a lawful position and the unlawful nature of the 

contraband is “immediately apparent.” Horton, 496 U.S. at 134; Arizona 

v. Hicks, 480 U.S. 321, 338 (1987); Coolidge v. New Hampshire, 403 U.S. 

443, 466 (1971). The doctrine, however, may not be used to extend a 

general exploratory search from one object to another until something 

incriminating emerges. Coolidge, 403 U.S. at 466. Thus, if the 

incriminating character of the object in “plain view” is not “immediately 

apparent,” without conducting some further search of the object, the plain 

view doctrine cannot justify its seizure. Horton, 496 U.S. at 138. 

“[T]he rationale of the plain-view doctrine is that if contraband is left in 

open view and is observed by a police officer from a lawful vantage point, 

there has been no invasion of a legitimate expectation of privacy and thus 

no ‘search’ within the meaning of the Fourth Amendment—or at least no 

search independent of the initial intrusion that gave the officers their 

vantage point.” Dickerson, 508 U.S. at 375 (citing Illinois v. Andreas, 463 

U.S. 765, 771 (1983)); see also Texas v. Brown, 460 U.S. 730, 740 (1983).

The plain touch extension arises from the same rationale and practical 

considerations as the plain view doctrine. Dickerson, 508 U.S. at 375. By 

analogy, the plain touch extension allows officers to seize illegal objects

discovered during a protective pat-down search when the illegality of the 

object is, using the sense of touch, “immediately apparent.” Id. at 375-
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76. Under the circumstances, there is no invasion of a suspect’s privacy 

beyond that already authorized by the officer’s search for weapons. Id.

With this background in mind, we turn to the application of these 

doctrines in the instant case. As an initial matter, T.T. does not challenge 

the validity of the stop or the legitimacy of the officer’s pat-down search 

for weapons. T.T. argues that this Court should reverse the lower court’s 

denial of his motion to suppress because the officer’s testimony regarding 

his training and experience was insufficient to support the conclusion that 

he was immediately aware, through tactile perception, that the cylindrical 

objects were illegal. See Jordan v. State, 664 So. 2d 272 (Fla. 5th DCA 

1995) (the “plain feel” doctrine requires specific expert testimony as to the 

arresting officer’s tactile experience with the particular contraband in 

question.)

The state argues that the officer’s “knowledge,” attributable to his 

training, the feel and location of the objects, and his observations of T.T.’s 

slurred speech and bloodshot eyes, amounted to a “practical, 

nontechnical” probability that the objects were contraband. See Brinegar 

v. U.S., 338 U.S. 160, 176 (1949).

To seize an object under the plain touch exception to the United States 

Constitution, an officer must know, through the use of tactile perception, 

that the object is contraband. G.M. v. State, 172 So. 3d 963, 968-69 (Fla. 

4th DCA 2015). Testimony regarding an officer’s training and experience 

is relevant to explain that the officer has developed the ability to know how 

the illegal object feels by using the sense of touch. Doctor v. State, 596 So.

2d, 445 (Fla. 1992).

 Accordingly, “[t]he State must present more than the naked subjective 

statement of a police officer who has a ‘feeling’ based on ‘experience’ . . .”

to support a seizure under the plain touch extension. Id.

In G.M., this court considered whether the trial court erred in refusing 

to suppress marijuana found in a juvenile’s pocket during a weapons 

search. G.M. v. State, 172 So. 3d at 968-69. G.M. was the passenger in a 

stolen vehicle. The arresting officer removed G.M. from the vehicle and 

conducted a protective pat-down search. The arresting officer testified that 

he felt a baggie containing plant-like material in G.M.’s pocket which, 

based on his training and experience, he believed to be marijuana. Id.

This Court reversed the trial court’s denial of the motion to suppress the 

evidence because the testimony that the officer believed the substance was 

marijuana amounted to no more than a hunch. Id.
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This Court reasoned that “[t]he officer’s perception that the material in 

the plastic bag was contraband did not come as a result of his tactile

perception, but from an educated hunch . . . .” Id. (citing C.A.M. v. State, 

819 So. 2d 802, 805 (Fla. 4th DCA 2001) (reversing denial of a motion to 

suppress where the officer’s unadorned conclusion was that he 

immediately knew the packaging in the defendant’s pocket contained 

marijuana); State v. J.D., 796 So. 2d 1217, 1220 (Fla. 4th DCA 2001)

(officer stated substance could possibly be marijuana); Meeks v. State, 356 

So. 2d 45, 46 (Fla. 2d DCA 1978) (officer stated the lump in defendant’s 

pocket was not a weapon and believed it to be marijuana.).

Thus, the state, in G.M., failed to elicit evidence to explain how the 

officer’s training and experience informed his ultimate conclusion that the 

plantlike material was marijuana. G.M., 172 So. 3d at 968-69; see also

Doctor, 596 So. 2d at 445 (Fla. 1992) (noting that “[n]ot all concealed 

objects in a person’s possession are contraband.”).

Similarly, Florida courts have declined to find probable cause when an 

object, commonly used for drugs, is seen or touched. Caplan v. State, 531 

So. 2d 88 (Fla. 1988) (several small rolled burnt cigarette wrappings on the 

floor of defendant’s automobile did not provide probable cause of 

marijuana), cert. denied, 489 U.S. 1099, (1989); Walker v. State, 514 So.

2d 1149 (Fla. 2d DCA 1987) (plain view of pipe did not constitute probable 

cause to arrest for possession of paraphernalia).

Here, the state failed to elicit evidence regarding the officer’s experience 

with drug containers and his prior use of tactile perception to identify 

contraband. The officer did not feel any plantlike material in T.T.’s pants. 

Moreover, he did not testify regarding his experience with containers 

during drug arrests. 

The Florida Supreme Court in Doctor v. State evaluated whether an 

officer’s testimony was sufficient to support the seizure of a bag of crack

cocaine hidden in a suspect’s groin area. The Court noted as follows: 

[D]eputy Aprea testified that he had made approximately 250 

arrests for possession of a controlled substance, had been 

present during approximately 1000 arrests and had seen or 

felt crack cocaine approximately 800 times. He further stated 

that during the course of 130 search warrant arrests, he had 

discovered cocaine hidden in the groin area on 70 occasions. 

Thus, Deputy Aprea’s testimony regarding his experience in 

apprehending drug offenders went well beyond a generalized 

statement or mere conclusion that he was an experienced 
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officer. Rather, he offered specific statistics evidencing his

significant experience with this particular aspect of drug

trafficking. Deputy Aprea concluded that in this case he

believed the object he felt was crack cocaine because of 

“[b]eing in contact with it so many times, the texture of it, the 

texture of the plastic bag that it’s in, the little rock formations 

of it, it was-if you could imagine, it was almost like a peanut 

brittle type feeling in it.”

Doctor, 596 So. 2d at 445.

The Court reasoned that Deputy Aprea’s testimony was more than a 

mere generalized statement in support of probable cause. Id. Accordingly, 

the Court found that the trial court correctly denied the defendant’s 

motion to suppress. Id. The Court noted that the officer’s testimony was 

sufficient to conclude that “[D]eputy Aprea had knowledge acquired 

through specific experience with the unique texture of crack cocaine as

well as with this type of concealment.” Id. at 445.

Here, the officer’s testimony regarding his training and experience was 

not sufficient for the lower court to determine that his conclusion was more 

than a “feeling” or a “hunch.” See Steadman v. State, 997 So. 2d 1258, 

1260 (Fla. 5th DCA 2009) (holding that if the officer “discover[s]” the item’s

identity as contraband only after removing it from the defendant’s person,

the seizure “runs afoul of the dictates of Dickerson”). Although the officer

testified that juveniles hide drugs in the scrotal area, his conclusory 

statement without more is the type of bare, subjective statement that this 

Court has held to be insufficient to overcome the protections of the Fourth 

Amendment. See State v. J.D., 796 So. 2d 1217, 1219 (Fla. 4th DCA 2001) 

(citing Doctor, 596 So. 2d at 445 (noting that “[t]he state must present more 

than the “naked subjective statement of a police officer who has a ‘feeling’

based on ‘experience’” that the item was contraband).

In making probable cause determinations, courts must conscientiously 

evaluate the sufficiency of evidence and decline to ratify naked conclusions

or the use of “buzz words” that imply certainty. See, e.g., State v. Rabb, 

920 So. 2d 1175, 1181 (Fla. 4th DCA 2006) (quoting Illinois v. Gates, 462 

U.S. 213, 239 (1983)).

Accordingly, we reverse the trial court’s decision denying the motion to 

suppress, and this case is remanded for the trial court to grant the motion 

and suppress the fruits of the search.

Reversed and remanded.
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MAY, J., concurs.

CIKLIN, J., dissents with opinion.

CIKLIN, J., dissents.

I would affirm. According to his testimony, the officer’s pat-down led 

him to discover cylindrical containers hidden in T.T.’s groin area, and his 

experience taught him that young people often hide drugs in these types 

of containers and in the groin area. Also, the pat-down must be viewed in 

light of the officer’s prior observation of T.T. fidgeting with his pants, and 

of his slurred speech, red and bloodshot eyes, and nervous demeanor. 

Armed with this knowledge, the totality of the circumstances provided the 

officer with a reasonable certainty that the canisters he felt in T.T.’s groin 

area contained contraband. See Harris v. State, 790 So. 2d 1246, 1249 

(Fla. 5th DCA 2001) (noting probable cause arises where an officer feels 

an object that he or she is “reasonably certain . . . is contraband”). 

* * *

Not final until disposition of timely filed motion for rehearing.