### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

T.T., a c hild,

Appellant,

v.

STATE OF FLORIDA, Appellee

.

No. 4D 18

- 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, W est Palm Beach, for appellee.

H ARPER
, B RADLEY
, 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 the re 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, a n 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 sus pect 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 v ehicle 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, ”2 “ cylindrical ” objects he believed to be containers

. The officer knew the two objects were not weapon s

. 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 subs tance ; he

later determined the substance to be marijuana.

At the suppression hearing, the officer testified that he h ad 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 drug s 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

, con cluded that juveniles tend to place illegal

substances in hard containers and hide the containers in the ir scrotal

area. Based on these conclusions

, the officer testified that he “ immediately

knew ” that the objects in T.T. ’ s scrotal area contained an ille gal 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 an d 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 c ourt defer s to the trial court ’ s factual findings but review s 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 unr easonable

searches and seizures. ” U.S. Const. amend. VI. “ [ N ] o right is hel d 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. ” Te rry v. Ohio

, 392 U.S. 1, 26 (1968) ( citing Union Pac. R.

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

, 508 U.S. 366, 379

- 83 (1993) (S calia , J. concurring) ( not ing 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)

.3 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 se a rch exception

or the narrow plain vi ew and plain touch ex tension s of that exception

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

In Terry v. Ohio , a plurality of t he United States Supreme Court recognized a “ narrow ly 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 t o 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. Lat er, the Court noted that

t he justification of a protective search is gone once it is determined that a
suspect is not armed. See Dickerson

, 508 U.S. at 373 ( c i ting 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); Coolidg e v. New Hampshire , 403 U.S. 443, 466 (1971) . The doctrine , however, may not be used to extend a general expl or atory search from one object to another until something incriminating emerges. Cooli d ge , 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

v antage 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 ex tension arises from the same rationale and practical considerations as the plain view doctrine. Dickerson

, 508 U.S. at 375 . By analogy, the p lain touch ex tension 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

-4 76. U nder 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 cy lindrical 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 s tate 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 contraban d

. See B rine gar v. U.S. , 338 U.S. 160 , 176 (1949).

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

C onstitution

, 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 ‘ feelin g ’ based on ‘ experience ’

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

. Id.

In G.M.

, this c ourt consider ed 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. T he arrest ing 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 C ourt 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.5 This Court reasoned that “ [t]he officer ’ s perception th at 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 , 3 56

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 s tate, in G.M ., failed to elicit evidence to explain how the

officer ’ s training and experience informed his u ltimate conclusion that the plantlike material was marijuana. G.M. , 172 So. 3d at 968

- 69; s ee 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 pr ovide 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 f or possession of paraphernalia).

Here , the s tate 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 i n T.T. ’ s pants. Moreover, he did not testify regarding his experience with containers during drug arrests.

T he 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 8 00 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 experienced6 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 f elt 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 t ype feeling in it. ”

Doctor

, 596 So. 2d at 445.

The C ourt 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. T he Court noted that the o fficer ’ 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 a s with this type of conc ealment. ” Id. at 445.

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

not sufficient for the lower c ourt 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 i f 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 hid e drug s in the scrotal area

, his conclusory

statement without more is the type of bare

, subjective statement that this

C ourt ha s held to be insufficient to o vercome the protections of the Fourth

A mendment

. 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 t he 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

.7 M AY
, J., concur s

. C IKLIN
, J

. , dissents with opinion

.

C IKLIN
, J

. , dissent s

.

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 experi ence 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 blood shot 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, 124 9 (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.