People v. Sevilla

• Decision Date: 26 May 1961
• Docket Number: Cr. 7447
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Adolph Orozco SEVILLA, Defendant and Respondent.

Page 714

13 Cal.Rptr. 714

192 Cal.App.2d 570

PEOPLE of the State of California, Plaintiff and Appellant, v. Adolph Orozco SEVILLA, Defendant and Respondent.

Cr. 7447.

District Court of Appeal, Second District, Division 1, California.

May 26, 1961.

Hearing Denied Aug. 9, 1961.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., of Los Angeles County, Harry Wood and Ralph F. Bagley, Deputy Dist. Attys., Los Angeles, for appellant.

Patrick E. Duggan, Los Angeles, for respondent.

LILLIE, Justice.

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 cars cruising in the vicinity. He saw defendant enter and walk up a driveway[192 Cal.App.2d 572] 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 cars 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 Haddon; 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 car,' 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 car. They covered a distance of seven feet, three or four toward the car and two or three 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 neck and with his left hand he was trying to hold one of defendant's hands, with which he 'was taking a beating,' until he received assistance from Sergeant Johnson who took hold of defendant. Leaning over the fender, facing the rear of the car, 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 futive 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. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 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 cases wherein the reasoning of the Rochin case, supra, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 was rejected.

The official conduct denounced by the Supreme Court in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, (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 mouth 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 Rochin 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 Rochin's conviction of illegal possession of the narcotic violated the due process clause of the Fourteenth Amendment, the Supreme Court said at page 172 of 342 U.S., at page 209 of 72 S.Ct., '* * * 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 combatting 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. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 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 Rochin 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. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; 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, 72 S.Ct. 205, 96 L.Ed. 183, and labeled that which 'shocks the conscience,' was 'the struggle to open his mouth and remove what was there.' 342 U.S. at page 172, 72 S.Ct. at page 209. People v. Haeussler, 41 Cal.2d 252, 256, 260 P.2d 8. Thus, since the Rochin decision, the courts have viewed a struggle in which force was used and the accused was choked in order to take evidence 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. 130 Cal.App.2d at page 55, 278 P.2d at page 27. 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 of 130 Cal.App.2d, at page 27 of 278 P.2d, '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 Rochin, 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...