People v. Trevino

• Decision Date: 12 August 1977
• Docket Number: Cr. 30057
• Citation: 72 Cal.App.3d 686,140 Cal.Rptr. 243
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Penida TREVINO, Defendant and Appellant.

Page 243

140 Cal.Rptr. 243

72 Cal.App.3d 686

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Penida TREVINO, Defendant and Appellant.

Cr. 30057.

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

Aug. 12, 1977.

As Modified on Denial of Rehearing Sept. 1, 1977.

Hearing Denied Oct. 6, 1977.

Paul N. Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. Public Defender, Aurelio Munoz, Janice L. Feinstein, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty., Gen., Shunji Asari, Mark Alan Hart, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

Robert Penida Trevino pleaded guilty to possession of heroin after his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. He appeals from the judgment of conviction seeking further review of the seizure of the evidence. We reverse the judgment.

The evidence which defendant would suppress is a rubber balloon containing heroin. The balloon was obtained by the arresting officer when the defendant removed it from his mouth after being ordered to do so by the officer. An additional item of evidence is a needle and a syringe which the officer removed from the seat of defendant's vehicle after the arrest.

Defendant contends that the seizure of the balloon was improper because his disgorging of it was the result of antecedent unreasonable conduct on the part of the arresting officer.

The incident began when Officer Frederick of the Lynwood Police Department, while on patrol at night in a marked police vehicle, observed defendant driving an automobile without rear lights at a speed of about 50 miles per hour in a 25 mile per hour zone. The officer drove up behind the vehicle and before bringing it to a stop observed the occupants glancing back at him in a manner which he described as 'furtive.'

According to the officer, defendant stopped his vehicle and while still sitting in the car leaned over and took 'something' from the passenger seated beside him and placed that 'something' in his mouth.

The officer was trained in the habits of narcotics violators and had personal experience in dealing with heroin users. He was familiar with what has become common knowledge, i.e., that heroin users often carry their contraband in balloons for, among other reasons, to facilitate swallowing of the substance to avoid its discovery and yet be able to retrieve it at a later time.

Believing that defendant was attempting to swallow narcotics, Officer Frederick ran to the driver's side of defendant's vehicle ordering defendant not to swallow. As he approached the vehicle he recognized defendant as an individual he had observed at the police station on a previous occasion. On that previous occasion he had been told by another officer that defendant was a narcotics user.

In order to prevent the defendant from swallowing the contraband Officer Frederick reached into the car, placed his hand on defendant's throat under his jaw and applied sufficient pressure to prevent any swallowing while, according to the officer, not cutting off the defendant's air or circulation. After removing the defendant from his automobile the officer ordered him to remove the article from his mouth.

People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, and its progeny People v. Superior Court (Simon), 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, hold that in the stopping of a vehicle for a traffic violation, without more, neither a search of the vehicle nor the occupants is permissible. Further the additional circumstances necessary to justify such a search cannot be found in so-called 'furtive' gestures which are as consistent with innocense as with guilt.

Defendant also contends that the officer's actions in preventing the swallowing of the contraband constituted the use of 'brutal and shocking' force of a type condemned in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, or constituted an illegal intrusion of defendant's body in violation of the precepts of People v. Bracamonte, 15 Cal.3d 394, 124 Cal.Rptr. 528, 540 P.2d 624. It will be recalled that Rochin involved the use of a stomach pump and Bracamonte involved the forced ingestion of an emetic. Defendant also cites us to cases condemning the choking of an arrestee to force the disgorging of evidence. (People v. Erickson, 210 Cal.App.2d 177, 26 Cal.Rptr. 546, and People v. Taylor, 191 Cal.App.2d 817, 13 Cal.Rptr. 73; People v. Sanders, 268 Cal.App.2d 802, 74 Cal.Rptr. 350.)

In the final analysis the test here is, as it always is, whether under the facts and circumstances and on the total atmosphere of the case the officer's conduct was reasonable (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577) when tested against the standard of a reasonable officer who is experienced in the 'devious and cunning devices used by narcotics offenders to conceal their crimes.' (People v. Williams, 196 Cal.App.2d 726, 728, 16 Cal.Rptr. 836, 837.)

The People endeavor to distinguish this case from the Kiefer and Simon cases on the basis that the officer had been told that the defendant was a narcotic user, and from the Erickson, Taylor and Sanders line of cases...