People v. Jones
Decision Date | 13 April 1989 |
Docket Number | No. A041948,A041948 |
Citation | 257 Cal.Rptr. 500,209 Cal.App.3d 725 |
Court | California Court of Appeals Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Appellant, v. Michael Wayne JONES, Defendant and Respondent. |
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst., John J. Sugiyama, Sr. Asst., Aileen Bunney, Supervising Deputy, Christopher J. Wei, Deputy, San Francisco, for plaintiff and appellant.
James R. Jenner, Public Defender, Scott Spear, Asst. Public Defender, Oakland, for defendant and respondent.
In an information filed in the Superior Court of Alameda County on March 1, 1988, respondent Michael Wayne Jones was charged with possession of a controlled substance in violation of Health and Safety Code section 11350. After respondent's motion to suppress evidence pursuant to Penal Code section 1538.5 was granted on April 8, 1988, the case was dismissed by the trial court for lack of evidence. This appeal was filed by the People. The facts pertinent to the single issue before us--whether excessive force was used upon respondent--are as follows.
On October 12, 1987, Officer Brian McColgin of the Oakland Police Department's Drug Task Force, was engaged in "a narcotics surveillance at 1408 67th Avenue" in Oakland. The officer was familiar with the "area of very high narcotic activity," where he had made "20 to 30" arrests within the past three years. Three days before, he had made four arrests for possession of heroin. The officer observed each of these recent arrestees ascend the stairs at 1408 67th Avenue to the second floor, stay for approximately one minute, then leave the premises, whereupon each was found to be in possession of a tied toy balloon of heroin.
At approximately 1:30 p.m., Officer McColgin saw respondent proceed to the second story of the surveilled premises, then return to the street. The officer approached respondent, who appeared startled. Respondent placed what appeared to be a "small round looking" blue object in his mouth, which the officer thought was heroin in a toy balloon.
Officer McColgin told respondent to "hold up," then, using his left hand, "applied pressure to his lower mandible, the lower part of the jaw, to prevent him from swallowing the object." Respondent attempted to move back, so the officer placed his right hand on the base of the back of the suspect's neck and ordered him to spit out the balloon.
According to Officer McColgin, respondent did not gag or stop breathing as the result of the pressure applied to his jaw and neck. The officer applied pressure with his thumb underneath the jaw, specifically between respondent's "jaw and ... adam's apple," and pushed up, to prevent respondent from swallowing the balloon. At the same time, he was exerting downward pressure on the back of respondent's neck. He demonstrated his hold on respondent to the trial court several times.
After at most "ten to 15 seconds" of pressure applied as described by the officer, respondent expelled the balloon "as he was going to the ground." Officer McColgin landed on top of respondent, then retrieved the balloon. Respondent was subsequently handcuffed and arrested.
The trial court made the following finding after hearing the evidence:
The Attorney General argues that the trial court erred in finding that McColgin applied excessive force in extricating the balloon from respondent's mouth. We must employ a "two-step process" in reviewing the trial court's ruling on respondent's motion to suppress: ... (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961, fn. omitted.)
Turning to the merits of the appeal, we proceed from the established premise that appropriate procedures may be used to prevent destruction of evidence. (People v. Scott (1978) 21 Cal.3d 284, 293, 145 Cal.Rptr. 876, 578 P.2d 123.) The Fourth Amendment prohibits only " 'unreasonable' " searches. (Id. at p. 292, 145 Cal.Rptr. 876.) But, "the use of excessive force which shocks the conscience violates due process of law." (People v. Bracamonte (1975) 15 Cal.3d 394, 404-405, 124 Cal.Rptr. 528, 540 P.2d 624.)
Our high court has declared: (People v. Bracamonte, supra, 15 Cal.3d 394, 405, fn. 6, 124 Cal.Rptr. 528, 540 P.2d 624; People v. Lara (1980) 108 Cal.App.3d 237, 240, 166 Cal.Rptr. 475.) (People v. Trevino (1977) 72 Cal.App.3d 686, 690, 140 Cal.Rptr. 243.)
While "each case must be decided on its own factual situation" (People v. Allen (1978) 86 Cal.App.3d 948, 953, 150 Cal.Rptr. 568), "the cases uniformly reject the use of choking as a means of preventing the destruction of evidence or forcing defendant to disgorge it." (People v. Trevino, supra, 72 Cal.App.3d 686, 691, 140 Cal.Rptr. 243.) (People v. Bass (1963) 214 Cal.App.2d 742, 746, 29 Cal.Rptr. 778.) "Choking a man to extract evidence from his mouth violates due process." (People v. Parham (1963) 60 Cal.2d 378, 384, 33 Cal.Rptr. 497, 384 P.2d 1001.) In People v. Sanders (1969) 268 Cal.App.2d 802, 804, 74 Cal.Rptr. 350, this court agreed that Our task is to undertake a "careful examination of the record to determine if the conduct complained of included force resulting in choking the accused." (People v. Sevilla (1961) 192 Cal.App.2d 570, 575, 13 Cal.Rptr. 714.)
The Attorney General challenges what it characterizes as the trial court's "position that an officer [cannot] exert any pressure on a defendant's throat." We are urged to adopt a test in which we focus on the degree of force employed by the police. Relying on State v. Williams (1977) 16 Wash.App. 868, 560 P.2d 1160, 1163, the Attorney General submits that it is "constitutionally reasonable for the police to 'place' their hands on a suspect's throat to prevent the swallowing of evidence, as long as they do not 'choke' him, i.e., prevent him from breathing or obstruct the blood supply to his head." In accord, State v. Taplin (1984) 36 Wash.App. 664, 676 P.2d 504; LaFave, Search and Seizure, A Treatise on the Fourth Amendment, (2d ed. 1987) § 5.2(i), pp. 474-475.)
California law, however, has not recognized distinctions in the degree of choking, but rather has drawn the line of illegality at choking. The court in People v. Taylor (1961) 191 Cal.App.2d 817, 13 Cal.Rptr. 73, rejected the notion that a reasonable amount of choking is permissible, with the following explanation: ...
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...the flow of blood to the brain so that the person passes out constitutes choking or its equivalent. See, also, People v. Jones, 209 Cal.App.3d 725, 257 Cal.Rptr. 500 (1989) (holding that where trial court found that police had applied a choke hold, the search was unlawful); State v. Taplin,......
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...evidence violates due process, without any need to inquire into the precise degree of choking involved. (People v. Jones (1989) 209 Cal.App.3d 725, 730, 257 Cal.Rptr. 500.) Whether a choking occurred is a question of fact for the lower court to resolve and must be upheld if supported by sub......
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...16 Wash.App. 868, 560 P.2d 1160, 1163 (1977); and, finally, to (3) opposing any type of pressure on the neck, People v. Jones, 209 Cal.App.3d 725, 257 Cal.Rptr. 500 (1989). In determining appropriate guidelines for police officers concerning the degree of force they may employ to obtain evi......
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