People v. Allen

86 Cal. App. 3d 948, 150 Cal. Rptr. 568, 1978 Cal. App. LEXIS 2143

Opinions

Opinion

LILLIE, Acting P. J.

The trial court found defendant guilty of possession for sale of heroin. Both defendant and the People appeal from the judgment (order granting probation), defendant challenging the denial of his motion to suppress pursuant to section 1538.5, Penal Code, the People, the validity of the order granting probation.

Defendant’s Appeal

Based on information that one Reeves was dealing heroin from his residence and that he had previous narcotic arrests, Officers Gilbert and Seegers went to Reeves’ house and knocked; in response to a voice asking who was there, Officer Gilbert identified himself; they heard the sound of running from the door and a toilet flushing and believing narcotics were being destroyed, kicked open the door and observed Reeves just outside of the bathroom; Reeves hedged but finally admitted he had just flushed heroin down the toilet; asked if he had any dope in the house, Reeves responded no; asked, “You don’t care if we search, do you?” Reeves answered “No, knock yourself out. You can search all you want”; the residence was searched and no narcotics were found.

Reeves was never arrested, handcuffed, told that the officers would take him to the station for investigation or threatened. Officer Gilbert told Reeves he had no case on him because he “got rid” of the heroin but “the guy I’m really interested in is the guy you’re getting your stuff from”; they talked and became “pretty friendly,” and Reeves told him about “Blue,” he had been buying heroin from him for sometime and the time and place of sale were always set up by telephone, and he offered to call “Blue.” Reeves had no telephone and voluntarily went to the station to make the call.

By telephone Reeves made arrangements with “Blue” to meet him for the sale of $50 worth of heroin at a certain liquor store where “Blue” intended to meet others for the same purpose; Reeves told Officer Gilbert that “Blue” packaged heroin in small balloons; the officers were informed that “Blue” often carried narcotics in his mouth as is common practice among dealers. Reeves was taken to the liquor store and instructed to signal when he saw “Blue;” an automobile matching the description given by Reeves and driven by defendant, who matched the description of “Blue,” moved into the area; Reeves gave his signal and Officer Elliott approached defendant, identified himself, pointed his revolver “real close to his head” and ordered him to open his mouth whereupon defendant spit out five balloons of heroin; the gun did not touch defendant’s throat; at the same time Officer Gilbert pointed his gun at defendant’s head ordering him to spit out the balloons, but he denied anyone said “Spit it up or I’ll blow your head off.”

Defendant testified that Officer Elliott stuck a gun in his face through the car window, and Officer Gilbert jumped into the car and stuck the gun in his neck and said “Spit it out, you mother, or I’ll blow your F-ing brains out.”; three guns in all were jammed in his neck and he was frightened; he could not swallow because the guns were stuck in his neck; had he the opportunity, he “probably” would have swallowed the balloons of heroin.

There is substantial evidence in the record to support the trial court’s finding that “even assuming arguendo that the original entry into Mr. Reeves’ home was illegal,. . . the chain leading to [defendant] is quite an attenuated one and that any taint has been dissipated because of the independent [voluntaiy] conduct of Mr. Reeves,” and that defendant’s arrest was lawful.

On the issue of the admissibility of the evidence, the trial court found that the officers “held a gun near [defendant’s] head, possibly at his throat, possibly only a few inches from his head” and, notwithstanding the denial of Officer Gilbert, was “inclined to believe [defendant] that they said in words and substance, ‘Spit it out or I’ll blow your head off.’ ” We are bound by this factual finding because it is supported by the evidence. In denying the motion the court commented that this conduct was very “disturbing” from a safety standpoint and a “very dangerous practice,” but concluded it was not unlawful conduct.

Appellant attacks the admissibility of the evidence on both due process (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 15) and unreasonable search and seizure (U.S. Const., 4th Amend., 14th Amend., § 1; Cal. Const., art. I, § 13) grounds under Rochin v. California (1952) 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396] and People v. Bracamonte, 15 Cal.3d 394 [124 Cal.Rptr. 528, 540 P.2d 624]. He identifies with defendant in those cases in which police intrusion into the human body was condemned. (Rochin v. California, supra, 342 U.S. 165, 166 [96 L.Ed. 183, 186-187] [stomach forcibly pumped out]; People v. Bracamonte, supra, 15 Cal.3d 394, 398; People v. Rodriguez, 71 Cal.App.3d 547, 549 [139 Cal.Rptr. 509] [emetic administered through nasal tube]; People v. Kraft, 3 Cal.App.3d 890, 896 [84 Cal.Rptr. 280] [blood sample forcibly obtained]; People v. Sanders, 268 Cal.App.2d 802, 805 [74 Cal.Rptr. 350] [judo choking technique to prevent swallowing]; United States v. Cameron (9th Cir. 1976) 538 F.2d 254, 256 [rectal cavity probed and enema administered].)

In Rochin v. California, supra, 342 U.S. 165, the high court held that the administration of an emetic solution—“ ‘stomach pumping’ produced vomiting” (p. 166 [96 L.Ed. p. 187])—constituted impermissible police activity which shocked the conscience and offended basic concepts of due process under the due process clause of the Fourteenth Amendment, and reversed the conviction. Although such conduct presented an issue of constitutional dimensions under the Fourth Amendment, the court did not consider it because the exclusionary rule was not then applicable to the states. (See People v. Bracamonte, 15 Cal.3d 394, 399-400 [124 Cal.Rptr. 528, 540 P.2d 624].) In 1975 the California Supreme Court decided People v. Bracamonte on the search and seizure ground finding it unnecessary to reach the due process contentions. In People v. Scott (1978) 21 Cal.3d 284 [145 Cal.Rptr. 876, 578 P.2d 123] the high court barred evidence obtained by a prostate massage administered in the rectum of a suspect. The facts in Bracamonte differ from those at bench but we detect the same coercion in both cases and the same elements that bring into focus the Fourth and Fourteenth Amendments and California parallel provisions under which “[s]earches are proscribed which are not justified under the circumstances or which are made in an improper manner. [Citation.]” (People v. Bracamonte, supra, 15 Cal.3d 394, 400.) As in Bracamonte, it cannot be asserted here that defendant willfully and voluntarily ejected the balloons from his mouth. On the search and seizure issue, the court said at page 403 “not only must there be more than probable cause to believe that contraband will be found [citations], but to justify a search incident to a lawful arrest, there must also be the need to prevent the arrested person from obtaining a weapon or destroying evidence.” (People v. Bracamonte, 15 Cal.3d 394.)

The trial court found, and properly so, there was probable cause to believe defendant was concealing the contraband in his mouth. But the weapon possibility, is not here applicable even though the trial court commented it was appropriate to have guns drawn at the time of a felony arrest of one unknown to them who “may be armed or dangerous or present some kind of threat.” Though an officer may use such force as is necessaiy to accomplish a felon’s arrest (§ 835a, Pen. Code), it was never contended here that the officers’ conduct was for that purpose. Nor did either officer articulate any fear for himself or others or any belief defendant might be armed or dangerous. The conclusion is inescapable that the guns and threat were used for neither the arrest nor protection but to force defendant to spit out the evidence. Nor, under the circumstances, is the destruction of evidence possibility applicable here. Defendant did testify that he spit out the balloons because he was scared and had no choice but admitted that had he had the opportunity he “probably” would have swallowed them. Assuming, however, that he had swallowed the balloons, there was no reason to believe that the evidence would be destroyed. While there is no right to conceal or destroy .evidence of criminal conduct (People v. Bracamonte, supra, 15 Cal.3d 394, 404) nothing in the record supports any fear of destruction of evidence which might justify the action taken herein. “It thus appears that defendant in the instant case easily could have been transported to jail and placed in an isolation cell and kept under proper surveillance.” (People v. Bracamonte, supra, 15 Cal.3d 394, 404; People v. Rodriguez, supra, 71 , 557-558.) Actually the prosecutor in his argument on the section 1538.5 motion flirted with this resolution of the situation as “the better course ... to let it pass out of the body and then recover them.”¹

The People contend that defendant was not choked or brutalized as in Rochin, Bracamonte, Rodriguez, Kraft, Sanders and Cameron, the force used was no more than was reasonably necessary to prevent destruction of the evidence and the conduct of the officers simply does not descend to the level of indignities found in those cases. There is little comfort for the People in their quote from People v. Bass, 214 Cal.App.2d 742 [29 Cal.Rptr. 778], “Although we agree that physical evidence, like verbal confessions, may not be ‘tortured’ from the lips of the accused, it does not follow that merely because a suspect has placed a substance behind his lips, he necessarily is entitled to cry ‘sanctuary’ when the officer of the law, under appropriate circumstances, directs him to surrender it.” (P. 746.) Of course each case must be decided on its own factual situation, and the “appropriate circumstances” in Bass included no weapon, threat, use of force or choking. The officer merely placed his hand on defendant’s neck to prevent him from swallowing and ordered him to “Spit it out,” which he did. Further, the People assert, calling attention to People v. Rand, 23 Cal.App.3d 579 [100 Cal.Rptr. 473] and cases cited therein, that the officer’s threat to blow defendant’s head off “was never intended to be carried out if defendant resisted,” but was simply “a ruse,” proper under the circumstances. First, nothing in the record supports the assertion that it was “a ruse” or concerns the officer’s intention in connection with the threat. All that the evidence shows is that the officers were surprised when defendant immediately spit out the contraband. Second, defendant did not know it was “a ruse” and that the threat was “never intended” to be carried out, nor do we.² Third, the “ruse,” trick or strategy referred to in People v. Rand, supra, 23 Cal.App.3d 579 and cases cited therein (pp. 582-583) cannot be equated with two officers holding guns at a suspect’s head ordering him to spit out contraband or they would blow his head off.

Defendant was not handcuffed and suffered no physical pain—the trial court discounted his claim that the guns were jammed in his throat preventing him from swallowing—but it cannot be denied that he suffered fear, anxiety and the real prospect that he would suffer physical harm or death. (See United States v. Cameron (9th Cir. 1976) 538 F.2d 254, 258.) Only pure speculation would support either the People’s assertion that the police did not intend to shoot or the reality of defendant’s fear that they would carry out their threat, but we agree as asserted by the trial judge, that such conduct is very “disturbing” and “a dangerous practice,” and by appellant that the physical and emotional response such threat could evoke well might cause the officer with an “itchy trigger finger” to believe that he had justifiable cause to follow through with the threat which he was capable of immediately carrying out. We also agree with the trial court that had defendant not spit out the contraband there would have been “no basis whatsoever for following through any such threat. It would be totally without justification to pull the trigger.” Needless to say, on the record here, the officers were aggressive beyond all need; their conduct can do no less than encourage violent confrontations between suspects and police.

We are unable to conclude that there is any basis upon which to uphold this search, and the balloons should not have been received in evidence. In light of the foregoing we deem it unnecessary to reach the merits of appellant’s due process claims, or to examine the substance of the People’s appeal.

The judgment (order granting probation) is reversed.

1 It was never contended, and there is no evidence that defendant would have been in any danger had he swallowed the rubber balloons. Of course, there is always a possibility that the rubber balloon can break open while in the digestive tract but it is a common practice among dealers to carry heroin in balloons in the mouth for the obvious purpose of swallowing the evidence if apprehended.

2 Defendant who is black testified that the officers were Caucasian, he was alone in his car in the area of Century and Figueroa, it was dark, he was scared, his main concern was “survival,” not getting “hurt,” “shot or killed,” three guns (the officers testified there were only two) were aimed at his head and “If they’d shot me, it was dark and ... I would have been just another dead person” without any “witnesses.” Defendant assumed, and under the circumstances we cannot say he had no right to make the assumption, that had he physically resisted or failed to obey the order he would have been shot in the head.