People v. Cappellia

• Decision Date: 23 March 1989
• Docket Number: No. G005222,G005222
• Citation: 208 Cal.App.3d 1331,256 Cal.Rptr. 695
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard James CAPPELLIA, Defendant and Appellant.

Page 695

256 Cal.Rptr. 695

208 Cal.App.3d 1331

The PEOPLE, Plaintiff and Respondent, v. Richard James CAPPELLIA, Defendant and Appellant.

No. G005222.

Court of Appeal, Fourth District, Division 3, California.

March 23, 1989.

John L. King, Bakersfield, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Rudolf Corona, Jr., and Roy W. Hewitt, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

SCOVILLE, Presiding Justice.

After a jury trial, defendant Richard James Cappellia was convicted of offering to sell heroin. (Health & Saf.Code, § 11352.) Defendant contends the court (1) improperly denied his pretrial motion to suppress evidence, and (2) improperly refused to admit into evidence certain postarrest police conduct which supported a defense of entrapment. We disagree, and affirm the judgment.

I

The police had been informed defendant was selling heroin from a barber shop in Huntington Beach. On December 19, 1985, defendant agreed to sell heroin the following day to Officer Gildea, a plain clothes investigator with the Huntington Beach Police Department, if Gildea would "slam," or inject the drug, in front of him. When Gildea returned on December 20, defendant said he did not really trust Gildea, and wanted to see him "slam" because he knew a policeman would not inject the drug. Gildea said he would "slam" at his house in Santa Ana, which was agreeable to defendant.

As they prepared to leave, defendant went to the back of his shop, removed a toilet paper roll from the shelf, and said he was ready to go. The two left in Gildea's truck and headed towards Santa Ana. On the way there, Gildea could see "the plunger and the body of the syringe protruding from the ... open end of the toilet paper roll." Defendant also opened up a small cardboard matchbox and showed Gildea three small bindles of tar heroin wrapped in cellophane. Gildea testified the bindles did not look sealed, and that he thought they were only twisted closed.

When they arrived at the house on Ninth Street in Santa Ana, defendant saw Officer Poe, another plain clothes policeman, seated on a fence in front of the house. Defendant asked Gildea who Poe was because he did not like "fixing" in front of strangers. Gildea said he was merely a friend who was there to drop off some merchandise and leave. Defendant then pulled out the matchbox and placed the three bindles in his mouth.

Defendant put the toilet paper roll in the glove compartment, got out of the car, and began walking along the concrete driveway with Gildea in front of him and Poe directly behind him. Gildea suddenly turned around, identified himself as a police officer, and yelled to Poe that defendant "had it in his mouth." Defendant turned and took a step as if to run, but Gildea grabbed him around the lower part of the neck with his right hand "to prevent him from swallowing and to keep his Adam's apple from going down." Gildea's hand was in a V-shape with the thumb on one side of defendant's throat and the rest of his fingers on the other side. Gildea specifically denied using the carotid hold.

Poe also grabbed defendant's neck because he "didn't want him to swallow the evidence": the evidence might have been lost, and it might also "break open, and he might overdose on it." He felt if he constricted defendant's throat defendant "wouldn't be able to get anything down it." Poe put his thumbs on the back of defendant's neck and his fingers around the front by defendant's Adam's apple. He testified he held on "just strong enough so that [defendant] wasn't able to swallow." Poe denied putting pressure on the carotid artery.

As the officers grabbed defendant, the three of them accidentally tumbled to the ground. Defendant fell face first and began bleeding from the nose and the mouth. Defendant struggled violently, and tried to move his neck out of the officers' grip. Gildea testified defendant's mouth was "moving like he was trying to chew" and "it appeared that he was trying to get something into the back of his mouth to swallow it." Gildea yelled at defendant to spit out the bindles, but he refused. When Gildea reached into defendant's mouth to retrieve the drugs, defendant bit his finger. Defendant struggled for nearly two minutes before the police were able to handcuff him. When he stopped fighting, Gildea let go of his throat and asked defendant to open his mouth, which he did. Gildea reached in and pulled out two bindles of heroin. Gildea testified the bindles appeared to have been chewed, and there was blood on the inside and outside of them. The officers looked but could not find the third bindle.

The police testified that defendant never stopped breathing or lost consciousness during the struggle. They also testified that after they let go of his throat defendant did not faint, gasp for air, or groan in pain.

Defendant was arrested and charged with offering to sell heroin. Defendant made a pretrial motion to suppress evidence under Penal Code section 1538.5 on the grounds there were no exigent circumstances which justified the search of his mouth, and the police used excessive force to recover the narcotics. In denying the motion, the trial court found that while the police placed their hands around defendant's throat, "[t]here was no carotid hold" and the police did not use excessive force in conducting the search.

Defendant was tried and found guilty by a jury of offering to sell heroin in violation of Health and Safety Code section 11352.

II

Defendant challenges the warrantless search on two grounds. First, he argues the search was unconstitutional because the police used excessive force. Second, he asserts the search was unjustified because there were no exigent circumstances. In reviewing a challenged search or seizure, we must uphold the trial court's factual findings if those findings are supported by substantial evidence (People v. Siripongs (1988) 45 Cal.3d 548, 566-567, 247 Cal.Rptr. 729, 754 P.2d 1306), but we are required to exercise our independent judgment when measuring those facts against the constitutional standard of reasonableness. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)

A.

Because there is substantial, uncontroverted evidence to support the finding that the police used only that force necessary to prevent defendant from swallowing the bindles, and that they did not choke him, we must accept that finding as true. Our task therefore is limited to determining whether, in our independent judgment, the force used was constitutionally reasonable. We hold it was.

The police may, in order to prevent the destruction of evidence, reach into a person's mouth to recover evidence if there is sufficient probable cause to believe a crime is being, or has been, committed. (People v. Lara (1980) 108 Cal.App.3d 237, 240-241, 166 Cal.Rptr. 475.) The mouth is not a "sacred orifice" and "there is no constitutional right to destroy or dispose of evidence." (People v. Bracamonte (1975) 15 Cal.3d 394, 405, fn. 6, 124 Cal.Rptr. 528, 540 P.2d 624.) Here, there was probable cause to justify a search of defendant's mouth since Gildea saw defendant put the heroin there. (People v. Lilienthal (1978) 22 Cal.3d 891, 898-899, 150 Cal.Rptr. 910, 587 P.2d 706; United States v. Caldera (9th Cir.1970) 421 F.2d 152, 153.)

The police may not, however, use brutal or excessive force to recover evidence. (People v. Bracamonte, supra, 15 Cal.3d at p. 405, fn. 6, 124 Cal.Rptr. 528, 540 P.2d 624.) California cases have uniformly held it is excessive force to choke or use a choke hold to make a defendant spit out evidence secreted in the mouth. (See, e.g., People v. Sanders (1969) 268 Cal.App.2d 802, 804-806, 74 Cal.Rptr. 350; People v. Taylor (1961) 191 Cal.App.2d 817, 821, 13 Cal.Rptr. 73; People v. Brinson (1961) 191 Cal.App.2d 253, 256, 12 Cal.Rptr. 625; People v. Martinez (1954) 130 Cal.App.2d 54, 57-58, 278 P.2d 26; cf. People v. Bracamonte, supra, 15 Cal.3d at pp. 404-405, 124 Cal.Rptr. 528, 540 P.2d 624; Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; see also 2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, §§ 1347-1348, pp. 1304-1305.) California cases have also held it is not excessive force for the police to place their hands on a defendant's throat in order to prevent evidence from being swallowed, so long as they do not choke him. See, e.g., People v. Miller (1967) 248 Cal.App.2d 731, 735, 56 Cal.Rptr. 865; People v. Mora (1965) 238 Cal.App.2d 1, 3-4, 47 Cal.Rptr. 338; People v. Bass (1963) 214 Cal.App.2d 742, 745-746, 29 Cal.Rptr. 778; People v. Sanchez (1961) 189 Cal.App.2d 720, 727-728, 11 Cal.Rptr. 407; see also 2 Witkin, op. cit. supra, at pp. 1305-1306.)

Although the trial court found that the police did not choke defendant, he argues the police used excessive force because they prevented his Adam's apple from moving up and down. He asserts this conduct was dangerous and was akin to the choke hold which was condemned in People v. Sanders, supra, 268 Cal.App.2d at p. 805, 74 Cal.Rptr. 350.

While at least one case has found it constitutionally permissible to prevent the destruction of evidence by holding a defendant's Adam's apple to prevent swallowing (People v. Dickenson (1962) 210 Cal.App.2d 127, 136-137, 26 Cal.Rptr. 601), we note one case has hinted that it may be constitutionally unreasonable for the police to put their hands on a defendant's throat at all. In People v. Trevino (1977) 72 Cal.App.3d 686, 692, 140 Cal.Rptr. 243, the court noted that the "application of force to a person's throat is a dangerous and sensitive activity," and implied that the use of force to prevent swallowing might be constitutionally unreasonable as the equivalent of choking. (See also Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1195-1197, 216 Cal.Rptr. 890 (dis. opn. of Staniforth, Acting P.J.); People v....