LILLIE, J.
An information charging defendant with possession of heroin in violation of section 11500, Health and Safety Code, was dismissed on defendant’s motion under section 995, Penal Code. The People appeal from the order granting the motion.
While cruising in a narcotics car, A. F. Van Court, a narcotics officer of six years and familiar with narcotic transactions and the manner in which narcotics are received by users and addicts, observed defendant, whom he had known over five and one-half years, had “handled” on several occasions as an arrestee and investigated for use and possession, walk south on Haddon Street. From then until he later lost sight of him, Van Court, by “walkie talkie” radio, transmitted in detail everything he observed of defendant’s actions to a felony unit consisting of four or five police ears cruising in the vicinity. He saw defendant enter and walk up a drive[572]*572way at 10384 Haddon Street, stand by the stairway and back around the corner of the building; one Heredia, a known narcotic addict whom Van Court had arrested approximately three times over the past six years, came out onto the front porch. The two engaged in a conversation, and the officer saw a meeting of hands and defendant give something to Heredia; it also appeared that defendant dropped something, for he went to the ground and looked around, stood up and put his hand to his left shirt pocket. Defendant then walked north on Haddon; as ears approached him from the south, he ducked, ran between the houses and hid behind a hedge; when they passed he continued down the street. Van Court testified that it was his opinion that defendant’s actions constituted a '‘ narcotic transaction sale, ’ ’ and he told the moving units he “thought the peddler Junie (Heredia) had a customer coming,” and that he “ ‘Baby’ (defendant’s street name) had scored.” As he crossed Van Nuys, defendant faded from Van Court’s sight.
Sergeants Olsen and Johnson were cruising in a narcotics car approximately one and one-half blocks from 10384 Had-don; they listened to Van Court’s description of defendant’s conduct and whereabouts, and when he lost sight of defendant, Olsen, who had “worked” on defendant for three and a half or four years, drove to the area and observed him hurrying— dog trotting—down Pinney Avenue. He swung his car across the sidewalk into a driveway blocking defendant, stopped the vehicle, “yelled” “police officer,” jumped out of the car directly in front of defendant and arrested him. Defendant, who was about a foot away, reached into his left shirt pocket with his right hand and put it to his mouth; at the same time Olsen moved forward, placed his right arm around defendant’s neck “pretty tight” and “whirled him around against the side of the police ear,” at which time he ordered defendant to ‘ ‘ spit it out. ” A “ rolling ’ ’ struggle ensued wherein Olsen and defendant turned around as they moved backward toward the rear of the ear. They covered a distance of 7 feet, 3 or 4 toward the car and 2 or 3 feet to its rear. Olsen again unsuccessfully ordered defendant to spit out the narcotics. With Olsen’s arm tight around defendant’s neck the two, turning around, slid along the door of the car to the rear, both bodies struggling against the side of the car; in the scuffle they leaned over the back of the trunk breaking off the aerial. During all of the time Olsen had his right arm around defendant’s [573]*573neck and with his left hand he was trying to hold one of defendant’s hands, with which he “was taking a heating,” until he received assistance from Sergeant Johnson who took hold of defendant. Leaning over the fender, facing the rear of the ear, with Olsen’s arm around his neck and Johnson holding him, defendant, upon order from Olsen, then spat out onto the back of the car a cellophane package containing two capsules of heroin. The struggle lasted less than a minute during which time the officer held his arm around defendant’s neck “trying to stop him from swallowing it”; three or four times the officer ordered defendant to spit out the object before he did so. In response to the question: “You were choking him and trying to keep him from swallowing; isn’t that correct?” Sergeant Olsen testified, “I wasn’t choking but my arm was around pretty tight, yes, but he was yelling. ”
In consideration of their past experience as narcotics officers, their knowledge of defendant and Heredia and their past activities, and their observations of the suspicious and furtive conduct of defendant, we find that the officers were justified in believing that defendant had committed a felony— a violation of the narcotic laws; and we conclude therefrom that there was reasonable and probable cause for defendant’s arrest without a warrant. (People v. Green, 183 Cal.App.2d 736 [7 Cal.Rptr. 235] ; People v. Wilkins, 178 Cal.App.2d 242 [2 Cal.Rptr. 908]; People v. Fabela, 175 Cal.App.2d 543 [346 P.2d 847].)
The basis of defendant’s motion under section 995, Penal Code, was a denial of due process of law under the Fourteenth Amendment of the United States Constitution by the method the officers used in obtaining the evidence. The trial judge concluded that it had been obtained in a manner condemned by the Supreme Court in Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], and granted the motion. Appellant herein argues “that the circumstances of the present case fall far short of the Rochin rule,” citing in support of its contention numerous California eases wherein the reasoning of the Rochin ease, supra, 342 U.S. 165, was rejected.
The official conduct denounced by the Supreme Court in Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], (reversing People v. Rochin, 101 Cal.App.2d 140 [225 P.2d 1, 913]) included the deputies’ actions from the time they observed Rochin put the capsules in his [574]*574mouth to the time he disgorged them. At the outset, the officers “jumped upon” him in an effort to extract the narcotics from his mouth; unsuccessful, they immediately took Bochin to a hospital where an emetic solution was forced through a tube into his stomach causing him to vomit into a pail from which were taken two capsules of morphine. Holding that the use of the capsules to obtain Bochin’s conviction of illegal possession of the narcotic violated the due process clause of the Fourteenth Amendment, the Supreme Court said at page 172, “. . . we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about com-batting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—■ this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities . . .”
It is true that Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed.
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LILLIE, J.
An information charging defendant with possession of heroin in violation of section 11500, Health and Safety Code, was dismissed on defendant’s motion under section 995, Penal Code. The People appeal from the order granting the motion.
While cruising in a narcotics car, A. F. Van Court, a narcotics officer of six years and familiar with narcotic transactions and the manner in which narcotics are received by users and addicts, observed defendant, whom he had known over five and one-half years, had “handled” on several occasions as an arrestee and investigated for use and possession, walk south on Haddon Street. From then until he later lost sight of him, Van Court, by “walkie talkie” radio, transmitted in detail everything he observed of defendant’s actions to a felony unit consisting of four or five police ears cruising in the vicinity. He saw defendant enter and walk up a drive[572]*572way at 10384 Haddon Street, stand by the stairway and back around the corner of the building; one Heredia, a known narcotic addict whom Van Court had arrested approximately three times over the past six years, came out onto the front porch. The two engaged in a conversation, and the officer saw a meeting of hands and defendant give something to Heredia; it also appeared that defendant dropped something, for he went to the ground and looked around, stood up and put his hand to his left shirt pocket. Defendant then walked north on Haddon; as ears approached him from the south, he ducked, ran between the houses and hid behind a hedge; when they passed he continued down the street. Van Court testified that it was his opinion that defendant’s actions constituted a '‘ narcotic transaction sale, ’ ’ and he told the moving units he “thought the peddler Junie (Heredia) had a customer coming,” and that he “ ‘Baby’ (defendant’s street name) had scored.” As he crossed Van Nuys, defendant faded from Van Court’s sight.
Sergeants Olsen and Johnson were cruising in a narcotics car approximately one and one-half blocks from 10384 Had-don; they listened to Van Court’s description of defendant’s conduct and whereabouts, and when he lost sight of defendant, Olsen, who had “worked” on defendant for three and a half or four years, drove to the area and observed him hurrying— dog trotting—down Pinney Avenue. He swung his car across the sidewalk into a driveway blocking defendant, stopped the vehicle, “yelled” “police officer,” jumped out of the car directly in front of defendant and arrested him. Defendant, who was about a foot away, reached into his left shirt pocket with his right hand and put it to his mouth; at the same time Olsen moved forward, placed his right arm around defendant’s neck “pretty tight” and “whirled him around against the side of the police ear,” at which time he ordered defendant to ‘ ‘ spit it out. ” A “ rolling ’ ’ struggle ensued wherein Olsen and defendant turned around as they moved backward toward the rear of the ear. They covered a distance of 7 feet, 3 or 4 toward the car and 2 or 3 feet to its rear. Olsen again unsuccessfully ordered defendant to spit out the narcotics. With Olsen’s arm tight around defendant’s neck the two, turning around, slid along the door of the car to the rear, both bodies struggling against the side of the car; in the scuffle they leaned over the back of the trunk breaking off the aerial. During all of the time Olsen had his right arm around defendant’s [573]*573neck and with his left hand he was trying to hold one of defendant’s hands, with which he “was taking a heating,” until he received assistance from Sergeant Johnson who took hold of defendant. Leaning over the fender, facing the rear of the ear, with Olsen’s arm around his neck and Johnson holding him, defendant, upon order from Olsen, then spat out onto the back of the car a cellophane package containing two capsules of heroin. The struggle lasted less than a minute during which time the officer held his arm around defendant’s neck “trying to stop him from swallowing it”; three or four times the officer ordered defendant to spit out the object before he did so. In response to the question: “You were choking him and trying to keep him from swallowing; isn’t that correct?” Sergeant Olsen testified, “I wasn’t choking but my arm was around pretty tight, yes, but he was yelling. ”
In consideration of their past experience as narcotics officers, their knowledge of defendant and Heredia and their past activities, and their observations of the suspicious and furtive conduct of defendant, we find that the officers were justified in believing that defendant had committed a felony— a violation of the narcotic laws; and we conclude therefrom that there was reasonable and probable cause for defendant’s arrest without a warrant. (People v. Green, 183 Cal.App.2d 736 [7 Cal.Rptr. 235] ; People v. Wilkins, 178 Cal.App.2d 242 [2 Cal.Rptr. 908]; People v. Fabela, 175 Cal.App.2d 543 [346 P.2d 847].)
The basis of defendant’s motion under section 995, Penal Code, was a denial of due process of law under the Fourteenth Amendment of the United States Constitution by the method the officers used in obtaining the evidence. The trial judge concluded that it had been obtained in a manner condemned by the Supreme Court in Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], and granted the motion. Appellant herein argues “that the circumstances of the present case fall far short of the Rochin rule,” citing in support of its contention numerous California eases wherein the reasoning of the Rochin ease, supra, 342 U.S. 165, was rejected.
The official conduct denounced by the Supreme Court in Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], (reversing People v. Rochin, 101 Cal.App.2d 140 [225 P.2d 1, 913]) included the deputies’ actions from the time they observed Rochin put the capsules in his [574]*574mouth to the time he disgorged them. At the outset, the officers “jumped upon” him in an effort to extract the narcotics from his mouth; unsuccessful, they immediately took Bochin to a hospital where an emetic solution was forced through a tube into his stomach causing him to vomit into a pail from which were taken two capsules of morphine. Holding that the use of the capsules to obtain Bochin’s conviction of illegal possession of the narcotic violated the due process clause of the Fourteenth Amendment, the Supreme Court said at page 172, “. . . we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about com-batting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—■ this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities . . .”
It is true that Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], presents a factual situation not common to the ordinary case; and the majority of later cases offer facts neither supporting the kind of force censured in the Bochin case, supra, nor revealing more force than necessary for the purpose for which it was used. Whether such force exists in a given situation is purely a factual issue (People v. Dawson, 127 Cal.App.2d 375 [273 P.2d 938]; People v. Dixon, 46 Cal.2d 456 [296 P.2d 557] ; People v. Smith, 50 Cal.2d 149 [323 P.2d 435]; People v. Poole, 174 Cal.App.2d 57 [344 P.2d 30]; People v. Woods, 139 Cal.App.2d 515 [293 P.2d 901]; People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26]; People v. Kiss, 125 Cal.App.2d 138 [269 P.2d 924]); likewise, the “indefinite and vague” confines of due process require an evaluation in each case. (Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396] ; People v. Haeussler, 41 Cal.2d 252 [260 P.2d 8].)
Part of the course of official conduct denounced by the court in the Rochin case, supra, 342 U.S. 165, and labeled that which “shocks the conscience,” was “the struggle to open his mouth and remove what was there” (p. 172). (People v. Haeussler, 41 Cal.2d 252, 256 [260 P.2d 8].) Thus, since the Bochin decision, the courts have viewed a struggle in which .force was used and the accused was choked in order to take [575]*575evidence from his person, as conduct offending due process. In People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26], after the officer observed the accused put narcotics in his mouth, he “placed a choke hold on defendant and ordered him to” spit them out (p. 55). A struggle ensued in which another officer joined and they fell to the ground with him where defendant spit out the package. Said the court at page 56, “The facts of the present case differ from those of the Rochin case only with respect to the variety of methods that were used on Bochin, who was either more durable than Martinez or was not choked as hard. The question, however, is not how hard an officer may choke a suspect to obtain evidence but whether he may choke him at all. It is clear that the substance was choked out of Martinez. The fact that the officers and Martinez were thrown to the ground indicates the extent of the force that was deemed necessary and that sufficient force was used to accomplish that purpose. The People say that the officers used only the force that was reasonably necessary to make an arrest. This statement ignores the evidence. . . . All this took place for the sole purpose of retrieving the package from defendant’s mouth” (emphasis added).
Cases decided after the Rochin and Martinez cases reveal the court’s careful examination of the record to determine if the conduct complained of included force resulting in choking the accused. In People v. Smith, 50 Cal.2d 149 [323 P.2d 435], the reasoning in the Rochin case was not applied because the Supreme Court accepted the trial court’s finding that the defendant “spit it out” on request; citing People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26], it commented, “Although defendant’s testimony would tend to show that the officer choked him, there was testimony to the contrary by one of the arresting officers” (p. 151). In People v. Zamora, 163 Cal.App.2d 400 [329 P.2d 531], the court in analyzing the evidence said at page 401, “She was not choked—she was asked to open her mouth, appeared to gag, and then spat the object into the officer’s hand.” Thus the issue before us resolves itself into whether the officers’ conduct amounted to choking the capsules out of Sevilla; we are in accord with the trial court’s finding that it did.
The facts in the instant case are similar to those found in People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26] ; but compared to the struggle described in the latter, the force used and Sevilla’s resistance thereto appears to be even greater. Although not thrown to the ground, it is obvious [576]*576from the evidence that the force of the struggle was such that had the police car not been standing in the way and caught the bodies of Olsen and the defendant, the two would have been thrown to the ground. The reliability of the officer’s statement that defendant “was not thrown on the car” in the struggle, is indeed questionable in view of his other testimony that after he saw defendant’s hand go to his mouth, he placed his “right arm around the top of his shoulder around his neck and whirled him, against the side of the police car,” at which time they were struggling; further that they “slid along the door of the ear to the trunk,” and “both leaned over the back of” it; and that they “were both against the car.” The force with which the officer “whirled” defendant was enough to throw them to the ground, but because of the presence of the vehicle their bodies were thrown instead “against the side of the police ear”; otherwise the “rolling struggle” would have taken place on the ground. Their actions were “fast”; in space they covered approximately seven feet; in time, less than a minute, during which the officer three or four times ordered defendant to spit out the narcotics. That the two men were thrown against the side of the car, that it was necessary for his partner to help Olsen, who had his arm “tight” around defendant’s neck, hold defendant’s arm to subdue him, and that when their bodies rolled to the rear of the car over the back of the trunk they broke off the aerial, indicate the extent of the force that was deemed necessary and was actually used to take the object from defendant’s mouth.
As to how or in what manner the officer had his arm around defendant’s neck, the officer finally answered in response to whether he was choking defendant, “I wasn’t choking but my arm was around pretty tight, yes, but he was yelling.” We agree with the trial judge in his observation that “although this officer said he wasn’t choking him ... I just can’t see how an officer’s arm could be around someone’s neck pretty tight and not be choking.” In like manner of the court’s interpretation of the evidence in People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26], we conclude from the record before us that at the height of the struggle against the car, during which Olsen’s arm was “pretty tight” around the defendant’s neck, defendant was “yelling” and resisting, defendant’s body was bent over the trunk of the car and Johnson was holding him and defendant on Olsen’s order finally spat out [577]*577the capsules, “the substance was choked out of” him. (People v. Martinez, supra, p. 56.)
The evidence herein defeats any argument that the officers were justified in using this extent of force to effect defendant’s arrest or to prevent him from fleeing, for the record plainly reveals that it was used for neither purpose, but according to Olsen’s own statement, “to stop him [defendant] from swallowing it.” It also shows that at the time defendant was arrested he made no effort to resist or to get away; his only move was with his right hand to his mouth. Defendant’s later resistance, when Olsen put his arm around his neck and “whirled” him against the ear, was not for the purpose of fleeing, but to release his neck from Olsen’s choke hold; defendant’s “yelling” was more consistent with pain, trying to swallow and breathe, and to keep from being choked, than with resisting arrest or trying to get away. We can only conclude, as in People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26], and as admitted by Sergeant Olsen, that all of this took place for the sole purpose of “trying' to stop him [defendant] from swallowing it” and retrieving the object from defendant’s mouth.
Appellant has referred for our attention to People v. Dixon, 46 Cal.2d 456 [296 P.2d 557] ; People v. Dawson, 127 Cal.App.2d 375 [273 P.2d 938]; People v. Smith, 50 Cal.2d 149 [323 P.2d 435] ; People v. Poole, 174 Cal.App.2d 57 [344 P.2d 30]. These authorities are of little help to appellant for their factual situations are in no wise similar to either the one at bar or that in the Rochin ease, supra, 342 U.S. 165, the reasoning of which the courts therein rejected for that very reason. For example, in People v. Dixon, 46 Cal.2d 456 [296 P.2d 557], the officers seized the arms of defendant to prevent her from placing a key in her mouth and in a struggle they put her on a bed and forced it from her hand; therein the court stated at page 458, “The brutal and shocking force condemned in that case [Rochin] was not present here; no more force was used than was reasonably necessary to take the key from her hand.” Again in People v. Dawson, 127 Cal.App.2d 375, 377.[273 P.2d 938], the court rejected the Boehin rule because “ [c]learly the facts in that case are not analogous with those in the present case . . .”; therein the officer merely put his arm around defendant’s neck to hold him and told him to spit out the bindles, which he did. Appellant’s contention that the facts before us are similar to those in the Dawson [578]*578case, supra, simply disregards the evidence which supports the finding that defendant was choked. In People v. Poole, 174 Cal.App.2d 57 [344 P.2d 30], the trier of fact found that though his arms were held the defendant spat out the narcotics at the officer’s request; however, the court said that even assuming defendant’s version to be true, none of the circumstances found in either People v. Martinez, 130 Cal.App.2d 54 [278 P.2d 26], or Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396], in which defendant was choked, were present.
For the foregoing reasons the order granting the motion to dismiss is affirmed.
Wood, P. J., concurred.