In a recent case in Florida, a police officer was on patrol in a “well-known and well-documented” drug area when he observed the suspect walking on the side of the road. The officer told the suspect he wanted to talk to him because he was actively chewing something in his mouth. The police asked the suspect what he was chewing, but the suspect didn’t say anything. The officer then told the suspect to show him what he was chewing and the suspect opened to show an off-white rock (crack). The officer told him to spit it out and the suspect was arrested. The suspect was then convicted of tampering with evidence and resisting an officer without violence.
An appeals court looked at this case and found that the observations the officer made were the result of an illegal search. The court held that the initial encounter with the officer was consensual, meaning the suspect could have walked away without responding to the officer. When the officer told the suspect to open his mouth, the consensual encounter transformed into an investigatory stop. In order to hold a suspect against his will (where he is not free to leave), the officer must have reasonable suspicion the suspect is committing, has committed, or is about to commit a crime. In this case, all the officer saw was a guy walking late at night chewing something.