People v. Jones, Cr. 19243

• Citation: 20 Cal.App.3d 201,97 Cal.Rptr. 492
• Decision Date: 22 September 1971
• Docket Number: Cr. 19243
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary W. JONES, Defendant and Appellant.

Page 492

97 Cal.Rptr. 492

20 Cal.App.3d 201

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gary W. JONES, Defendant and Appellant.

Cr. 19243.

Court of Appeal, Second District, Division 2, California.

Sept. 22, 1971.

Hearing Denied Nov. 18, 1971.

Richard S. Buckley, Public Defender, Harold E. Shabo, Thomas Patterson and Leighton A. Nugent, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and John R. Evans, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Appellant was charged with possession of a restricted dangerous drug in the nature of a barbituric acid, to wit, sodium secobarbital, also known as seconal. Pursuant to the stipulation of counsel, and with the express approval of appellant, the cause was submitted upon the evidence received at the hearing on appellant's motion to suppress evidence and upon the testimony contained in the transcript of the preliminary hearing.

Appellant's Contentions

On this appeal from the judgment of conviction appellant contends that a stomach lavage performed by a physician to whom he was taken following his ingestion of a number of capsules containing barbituric acid was a brutal and shocking procedure which denied him due process of law and which constituted an unreasonable search and seizure and a violation of his privilege against self-incrimination.

Our review has led to the conclusion that appellant's contentions are devoid of merit. The testimony of the doctor who performed the stomach lavage provides convincing proof that the procedure followed was dictated by well founded medical opinion that there was a danger that appellant had ingested a lethal overdose of barbiturates. The evidence convincingly proves that the doctor was not the agent of the police and that the stomach lavage was performed because it was deemed necessary to remove from appellant's stomach a poison which threatened his life.

Summary of the Evidence

Bruce Randall was a police officer for the City of El Monte assigned to narcotics investigation on May 7, 1970. At approximately 12:15 p.m. on that date he and his partner, Detective Scheidel, were on patrol in an area near a high school. They had information that drugs were being sold at a location across from the high school. They had received two or three telephone calls that morning informing them that drugs were going to be dispensed at that location around noontime.

Randall was the passenger in Detective Scheidel's unmarked vehicle. They passed by the described location at about ten miles per hour. About 100 feet south of the indicated location Randall observed appellant and his codefendant Meaders on the sidewalk in front of a building. Appellant and Meaders were three to four feet from the wall of the building, on the sidewalk and facing the street. The police vehicle was very close to the curb.

Officer Randall recognized appellant, who had been arrested before. Randall observed Meaders dropping red capsules, which appeared to be sodium secobarbital, into appellant's hand. Randall was familiar with red gelatin sodium secobarbital capsules, having seen thousands of them in the past. Officer Randall told Detective Scheidel to stop, and Randall jumped out of the car and ran toward appellant and Meaders. Randall thought he had seen three or four capsules drop into appellant's hand, although it could have been five or six because they were still dropping when Randall jumped out of the car. Randall identified himself and informed appellant and Meaders that they were under arrest.

At the time of his arrest appellant had the capsules in his hand, but immediately thereafter Officer Randall observed him thrust the capsules into his mouth and swallow them very quickly.

Appellant and Meaders were taken into custody and transported to the El Monte Police Department. Although appellant had not appeared intoxicated at the time of his arrest, during the next few minutes thereafter he began to develop noticeable symptoms of intoxication. His speech became slurred; his breathing became very shallow and soft. His legs became very rubbery, and he was having trouble maintaining his balance. The pupils of his eyes were dilating and vacillating. These were symptoms of a person under the influence of sodium secobarbital. Randall formed the opinion that appellant was under the influence of a barbiturate.

Because of his observation of appellant's developing symptoms, Randall decided to take him to the El Monte Medical Center for examination by a doctor to determine whether or not he had taken a dangerous overdose of drugs. At the medical center appellant was examined by a Dr. Vigil, who had been informed of the circumstances by Officer Randall. The doctor decided that appellant's stomach should be pumped without any suggestion or request by Officer Randall.

The court on its own motion called Dr. Vigil as a witness. He was employed as a medical doctor at the El Monte Medical Center on May 7, 1970. He examined appellant in the emergency room there. Prior to examining appellant he was told by Officer Randall in the hall that appellant had taken some sleeping pills. Dr. Vigil asked if the officers knew how many or what kind, and they replied in the negative.

The medical report indicated that prior to Dr. Vigil's examination, a nurse had written therein 'Brought in by E.M.P.D. for ingestion of reds. Unknown amount. Stomach lavage, question mark.' Dr. Vigil concluded that an indeterminate amount of barbiturates was involved, and that he should make an examination and determine the course of treatment. What the nurse had written was only a general history and was not regarded by the doctor as an order.

Dr. Vigil examined appellant and found him lethargic and sleepy. Appellant was oriented but 'a lot more lethargic' than would be considered normal. Appellant was cooperative. Dr. Vigil examined appellant's reflexes and talked to him. No abnormality of pulse, respiratory rate, or the eyes was noted on the record.

Dr. Vigil's medical opinion was that there was a danger that appellant had ingested a lethal dose of barbiturates. He therefore decided to perform a gastric lavage of the stomach. He felt that it would not be wise to wait to see if a comatose condition or some other kind of trouble developed, because then a respirator or 'more heroic means' of saving appellant's life might be required. There was a danger to appellant's life in stalling any medical procedure until appellant possibly became comatose. Thus, in Dr. Vigil's medical opinion, pumping appellant's stomach was 'necessary in order to possibly save his life.'

Dr. Vigil used water to pump appellant's stomach. He did not use an emetic because in the case of barbituric intoxication, the use of an emetic can cause deepening of an impending coma. Dr. Vigil told appellant what he was going to do, and appellant 'was very cooperative.' Dr. Vigil asked appellant to open his mouth in order to insert a tube into his stomach and 'at no time did (appellant) object in any way.' Dr. Vigil did not recall obtaining a consent document from appellant. As a general rule it was his practice to get a signed consent but in cases of cooperative patients or in apparent emergencies, the doctor frequently would proceed without a signed consent.

In performing a stomach lavage the patient is always strapped to the table in order to keep the patient and the mattress from sliding off the table. Appellant was handcuffed in front and strapped to the table across his chest and legs while the doctor performed the stomach lavage. It was stipulated that People's Exhibit 1, a bottle of fluid from appellant's stomach, was examined by an expert forensic chemist and found to contain 13 milligrams per cent of barbituric acid derivatives.

The Procedure Followed By The Police And By The Doctor In This Case Was Not In The Slightest Degree Unreasonable, Shocking Or Brutal; There Was No Unreasonable Search Or

Seizure Nor Any Violation Of The Privilege Against Self-Incrimination.

It should not be forgotten that the course of events which led to the pumping of his stomach was initiated by appellant, who, caught in the act of dealing with dangerous drugs, attempted to destroy the evidence of his crime by thrusting the secobarbital capsules into his mouth and swallowing them. There is no constitutional right to destroy evidence. (See People v. Maddox,46 Cal.2d 301, 306, 294 P.2d 6.) While physical evidence may not be 'tortured' from a suspect's lips, the mouth is not 'a sacred orifice into which contraband may be placed and thereafter disposed of in leisurely fashion.' (People v. Bass, 214 Cal.App.2d 742, 746, 29 Cal.Rptr. 778, 780.)

The use of body cavities by smugglers and dealers in narcotics is a well known fact of which the courts have taken judicial notice. (Blefare v. United States, 9 Cir., 362 F.2d 870, 874.) The frequent attempts of users and sellers of dangerous drugs and narcotics to destroy the incriminating evidence by placing it in their mouths and swallowing it had become a matter of common knowledge. The courts have made it clear that the law is not powerless to deal with such tactics. (Cf. Blackford v. United States, 9 Cir., 247 F.2d 745, 754, cert. den. 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586; King v. United States, 5 Cir., 258 F.2d 754, 755 fn. 6; United States v. Michel, D.C., 158 F.Supp. 34, 37.)

Invasions of the body of the accused may be made under certain circumstances without constituting a denial of due process or an unreasonable search or seizure, if done by medical personnel using proper medical procedures and if done without brutality which 'shocks the conscience.' (Schmerber v. California, 384 U.S. 757, 759--760, 86 S.Ct. 1826, 16 L.Ed.2d 908, 913, 917-- 920 (1966); Breithaupt v. Abram, 352 U.S. 432, 435--440, 77 S.Ct. 408, 1 L.Ed.2d 448, 450--453 (1957).)

Appellant relies upon ...