When Hardy refused to answer investigatory questions, the police officer sought to confirm his suspicion that Hardy might be in possession of drugs through his own observation of Hardy's mouth. Because the request for Hardy to open his mouth constituted a warrantless search, we must determine whether it was supported by one of the exceptions to the warrant requirement. One of these exceptions is a search incident to arrest. An arresting officer may search the arrestee and the area within the immediate control of the arrestee in order to prevent destruction of evidence or to remove any weapons that the arrestee might use to resist arrest or effect escape. This search may precede arrest as long as the results of the search are not necessary to establish probable cause for the arrest.
Mere suspicion is insufficient to establish probable cause.
In establishing probable cause to believe that a suspect is in possession of drugs, this court has required more than location in a high crime neighborhood and the presence of an unidentified item on the suspect's person. For example, in Dickerson, this court held that police permissibly stopped a suspect and frisked him for weapons after he was observed to leave a known crack house and exhibit evasive behavior. However, these circumstances, combined with the discovery of a small, unidentified lump in the suspect's pocket during the frisk, were insufficient to support an extensive search of the suspect's person. In determining that probable cause for the search was lacking, this court noted that there was no visual sighting of contraband, no effort by the defendant to hide anything, and no accomplice in possession of contraband. In contrast, in State v. Ludtke, this court upheld the search of a suspect's body following a Terry frisk which uncovered a plastic bag containing an unidentified substance.