State v. Hodson

• Decision Date: 30 November 1993
• Docket Number: No. 910722-CA,910722-CA
• Citation: 866 P.2d 556
• Parties: STATE of Utah, Plaintiff and Appellee, v. Dennis M. HODSON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 556

866 P.2d 556

STATE of Utah, Plaintiff and Appellee, v. Dennis M. HODSON, Defendant and Appellant.

No. 910722-CA.

Court of Appeals of Utah.

Nov. 30, 1993.

Elizabeth Holbrook, Salt Lake Legal Defenders Ass'n (argued), Salt Lake City, for defendant-appellant.

Jan Graham, State Atty. Gen., and Joanne C. Slotnik, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff-appellee.

Before BILLINGS, GREENWOOD, and GARFF, JJ. ¹

OPINION

GREENWOOD, Judge:

Defendant Dennis M. Hodson appeals his conviction for unlawfully distributing or arranging to distribute a controlled substance, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (1990), and for unlawful possession of a controlled substance with intent to distribute, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (1990). Defendant claims the trial court erred in denying his motion to suppress evidence seized in an unreasonable, warrantless body search. We remand for the entry of additional findings.

FACTS

On July 12, 1991, Janet Wardle, a police informant, met with defendant to purchase heroin. Wardle had been arrested the day before, on July 11, 1991, at the Greyhound bus station in Salt Lake City, while attempting to send a package containing heroin through the United States mail. As part of a plea bargain arrangement, Wardle agreed to cooperate with police by participating in a controlled drug buy.

After completing her transaction with defendant, Wardle gave a prearranged signal to drug enforcement agents Smith and Garcia. The agents then approached defendant's vehicle with their overhead flashers on. Agent Smith testified at trial that as the police car neared defendant's vehicle, defendant "threw" something in his mouth. Smith alerted agent Garcia to defendant's action, and the two agents exited their vehicle. Garcia grabbed defendant "by the cheeks" while he was still sitting in the driver's seat, put a gun to the side of his head, and ordered defendant to "spit it out." Garcia then put his gun down on the top of defendant's car, Smith opened the car door, and Garcia pulled defendant out of the car and onto the ground. Garcia's arm was wrapped around defendant's neck, and he again ordered defendant to spit out whatever he had in his mouth. Defendant spat out three plastic wrapped chips, and Garcia retrieved additional chips by inserting his fingers in defendant's mouth and pulling them out. A total of eight chips, later identified as black tar heroin, were recovered from defendant.

Defendant filed a motion to suppress the evidence obtained by Smith and Garcia, claiming that the agents conducted an unreasonable and therefore unconstitutional warrantless search. The trial court denied the motion, reasoning:

In this case, [the officers] could have kept the defendant in isolation but the evidence of the drug ingestion could have been destroyed, the amounts could have been altered by his stomach acids and there was the potential that it could have been lethal to him. Under the circumstances of this case, I find that the search by the officers was appropriate and, therefore, deny [the] motion to suppress.

Defendant renewed the motion to suppress at the bench trial that followed, and it was again denied.

In the course of the bench trial, the prosecution called Wardle to the stand to testify about the controlled drug buy. Because Wardle's participation in the drug buy on July 12, 1991 was related to her arrest on the previous day, and because she was due to stand trial for this arrest, Wardle attempted to invoke the Fifth Amendment to protect herself against self-incrimination. The court ruled that the Fifth Amendment had no application to the events on July 12, 1991 because Wardle faced no criminal liability in connection with these events. As for Wardle's potential testimony concerning the events of July 11, 1991, the court ruled that testimony could be admitted to reflect on Wardle's credibility, but not "for the purpose of establishing the truth of the matter asserted in relation to the criminal charges on the 11th."

At the conclusion of the bench trial, the court found defendant guilty as charged. Defendant appeals, claiming that his motion to suppress should have been granted and that it was error to admit Wardle's testimony into evidence after she had properly invoked the Fifth Amendment with respect to the events of July 12, 1991. ² We do not reach the argument concerning the Fifth Amendment because it was not properly preserved for appeal. Defendant did not object to the trial court's ruling, but, in fact, concurred with the court that the Fifth Amendment had no relevance in the context of defendant's trial. "Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal. Utah's appellate courts have applied this rule to constitutional questions advanced for the first time on appeal." ³ State v. Archambeau, 820 P.2d 920, 922 (Utah App.1991) (footnotes omitted).

STANDARD OF REVIEW

In reviewing the denial of a motion to suppress, we uphold the trial court's findings of fact unless they are clearly erroneous and "review the trial court's conclusions of law based thereon for correctness." State v. Gray, 851 P.2d 1217, 1220 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993).

ANALYSIS

Defendant argues that the removal of the eight chips of black tar heroin from his mouth violated his fourth amendment ⁴ right to be free of unreasonable, warrantless searches and seizures. ⁵ He claims that: (1) the agents had no way of knowing that the substance he threw in his mouth was contraband; (2) agent Garcia impermissibly choked defendant to force him to spit out the heroin; and (3) agent Garcia used excessive and unreasonable force when he held a loaded gun to defendant's head.

Because this was a warrantless search and seizure, the State has "the burden of showing that the search was lawful." State v. Palmer, 803 P.2d 1249, 1251 (Utah App.1990), cert. denied, 815 P.2d 241 (Utah 1991). In order to meet this burden in the case of a bodily search, the State must establish three elements: (1) a clear indication that evidence would be found; (2) exigent circumstances that justified the warrantless bodily intrusion; and (3) that the method chosen was a reasonable one, performed in a reasonable manner. Schmerber v. California, 384 U.S. 757, 768-72, 86 S.Ct. 1826, 1834-36, 16 L.Ed.2d 908 (1966).

After review of the record, particularly the undisputed facts, we determine that the first two Schmerber elements are satisfied as discussed below. However, we are unable to evaluate the third element, reasonableness, as it relates to the alleged "choking" of defendant, due to the absence of crucial factual findings. We therefore remand for additional findings and provide a legal framework as guidance for the trial court.

Clear Indication of Evidence

The first prong of the Schmerber test requires the State to establish that at the time of the challenged search and seizure, the officers had a "clear indication that in fact ... evidence [would] be found." Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835. "Clear indication" requires that there be probable cause to believe that evidence will be found. Id.; Winston v. Lee, 470 U.S. 753, 759, 105 S.Ct. 1611, 1615-16, 84 L.Ed.2d 662 (1985). "The determination of whether probable cause exists ... depends upon an examination of all the information available to the searching officer in light of the circumstances as they existed at the time the search was made." State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986). "The validity of the probable cause determination is made from the objective standpoint of a 'prudent, reasonable, cautious police officer ... guided by his experience and training.' " Id. (quoting United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972)). In making that determination, "a police officer is entitled to rely on information gained from other police officers." Id.

Defendant argues that the officers did not have probable cause to believe that he was preparing to swallow illegal drugs. He contends that it is just as likely that he had put chewing gum, breath mints, aspirin, chewing tobacco, or food in his mouth. While defendant correctly states that a mere "furtive gesture" is inadequate to establish probable cause, " 'deliberately furtive actions and flight at the approach of ... law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.' " People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 735, 478 P.2d 449, 455 (1970) (quoting Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968)); see also State v. Victor, 76 Ohio App.3d 372, 601 N.E.2d 648, 650-51 (1991) ("[D]efendant's suspicious movements, which occurred immediately after the detectives revealed their identity as police officers, gave rise to a reasonable inference that defendant did, in fact, possess drugs which he attempted to secrete in his mouth."), cert. denied, 63 Ohio St.3d 1455, 590 N.E.2d 750 cert. denied, 506 U.S. 902, 113 S.Ct. 292, 121 L.Ed.2d 217 (1992).

In this case, the following facts, as found by the trial court, support probable cause: (1) Wardle had agreed to arrange to purchase heroin from defendant; (2) Wardle gave a prearranged signal indicating the drug transaction was completed; and (3) agent Smith told agent Garcia that defendant had "thrown" something into his mouth when the officers approached with their lights flashing. Further, a reasonable officer would know that it is a common practice among drug dealers to swallow the evidence if the police arrive on the scene. Defendant's furtive gesture of putting something in his mouth as the officers approached, coupled with the agents' specific knowledge that Wardle intended to purchase...