State v. Hodson

• Decision Date: 30 November 1995
• Docket Number: No. 940053,940053
• Citation: 907 P.2d 1155
• Parties: STATE of Utah, Plaintiff and Respondent, v. Dennis M. HODSON, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 1155

907 P.2d 1155

64 USLW 2447

STATE of Utah, Plaintiff and Respondent, v. Dennis M. HODSON, Defendant and Petitioner.

No. 940053.

Supreme Court of Utah.

Nov. 30, 1995.

Jan Graham, Att'y Gen., Joanne C. Slotnik, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Joan C. Watt, Salt Lake City, for defendant.

DURHAM, Justice:

We granted certiorari to review a court of appeals opinion which examined whether drug enforcement agents conducted a reasonable search of the person of defendant Dennis M. Hodson where the agents used a gun and applied pressure to his throat. The court of appeals held that the use of the gun during the search was reasonable but remanded to clarify whether Hodson's breathing or blood supply was obstructed. State v. Hodson, 866 P.2d 556, 563-64 (Utah Ct.App.1993). We reverse.

On July 12, 1991, Janet Wardle, a police informant participating in a controlled drug buy, met with Hodson to purchase heroin. After completing the purchase, Wardle gave a prearranged signal to drug enforcement agents Garcia and Smith. The agents drove up to Hodson's vehicle with their overhead flashers on. Smith testified at trial that as they approached his vehicle, Hodson apparently saw their lights and "threw something in his mouth." Smith alerted Garcia of defendant's actions, and both agents exited their vehicle.

While Hodson was still sitting in the driver's seat of his vehicle, Garcia ran up to him, grabbed him by the cheeks, held a gun to the side of his face, and ordered him to "spit it out." When he did not comply with the order, Garcia placed his gun on top of the vehicle, and as Smith opened the door, Garcia pulled him out of the vehicle and onto the ground. Garcia placed his arm around Hodson's neck and again ordered him to spit out the contents of his mouth. Hodson spat out some plastic-wrapped chips, and Garcia retrieved additional chips by inserting his fingers in Hodson's mouth. A total of eight heroin chips were recovered from his mouth. ¹

Hodson was charged with unlawfully distributing or offering, agreeing, consenting, or arranging to distribute a controlled substance, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii), and unlawful possession of a controlled substance with intent to distribute, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv). He moved to suppress the eight heroin chips, contending that the search for and seizure of the heroin violated the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 14 of the Utah Constitution. ² At a pretrial hearing, the trial court denied the motion. Hodson renewed the motion to suppress at the bench trial that followed, and it was again denied. At the conclusion of trial, the court found him guilty of both counts.

At the court of appeals, Hodson contended that Garcia used impermissible force by holding a gun to his head and "choking" him to force him to spit out the heroin chips. Hodson, 866 P.2d at 562. Regarding the use of the gun, the court held "that in the absence of an express threat to kill defendant, Garcia's action constituted a reasonable response to a crisis situation." Id. at 563. Concerning the pressure applied to Hodson's neck, the court held 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 [or her], i.e., prevent him [or her] from breathing or obstruct the blood supply to [the] head.' " Id. (alterations in original) (quoting State v. Williams, 16 Wash.App. 868, 560 P.2d 1160, 1163 (1977)). Because the trial court had not made sufficiently detailed factual findings regarding the extent of the pressure applied to Hodson's neck, the court of appeals remanded for further findings concerning "whether Garcia cut off defendant's air or blood supply or merely prevented him from swallowing." Hodson, 866 P.2d at 564. We granted certiorari. State v. Hodson, 878 P.2d 1154 (Utah 1994).

We first discuss the appropriate standard of review. We have stated that "a trial court determination of whether a specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable nondeferentially for correctness." State v. Pena, 869 P.2d 932, 939 (Utah 1994); accord State v. Chapman, --- P.2d ----, ----, 272 Utah Adv.Rep. 6, 8, 1995 WL 525580 (Sept. 5, 1995). However, we have afforded a "measure of discretion" to such determinations because the legal standard for reasonable suspicion "is highly fact dependent and the fact patterns are quite variable." Pena, 869 P.2d at 940. We have applied this same standard of review to probable cause determinations. State v. Poole, 871 P.2d 531, 533 (Utah 1994). We likewise conclude that this should be the applicable standard for reviewing whether a search is reasonable under the Fourth Amendment. Therefore, we review the court of appeals' decision for correctness while affording "a measure of discretion to the trial court in our application of the correctness standard to a given set of facts." Chapman, --- P.2d at ----, 272 Utah Adv.Rep. at 8 (citing Pena, 869 P.2d at 939).

In Winston v. Lee, 470 U.S. 753, 761-62, 105 S.Ct. 1611, 1617-18, 84 L.Ed.2d 662 (1985), the United States Supreme Court articulated a three-part test to determine the reasonableness of a search procedure. Winston requires that the reasonableness of force used in a search be measured against (1) the extent to which the procedure used may threaten the safety or health of the individual, (2) the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and (3) the community's interest in fairly and accurately determining guilt or innocence. Id.

In this case, the record shows that the arresting officer reached into the automobile where defendant was sitting, grabbed him by the cheeks, held a gun to his head, and ordered him to "spit it out." The officer then placed the gun on the top of the car, pulled defendant out and onto the ground, placed his arm around defendant's neck, and again ordered him to spit out the contents of his mouth.

The State argues that the use of the gun to threaten defendant was "brief" and that there was no "express" threat to harm him. We conclude, however, that the only possible inference to be made when someone holds a loaded gun to the head of another and issues an order is that failure to comply will result in use of the gun. Implicit threats are as real as express verbal threats, especially in a highly charged encounter involving physical violence. Certainly, an interrogation conducted while an officer held a gun to a suspect's head and demanded, "Talk!" would be considered unreasonable and a violation of the Fifth Amendment. We do not tolerate threats to shoot suspects as a legitimate means to extract either information or physical evidence; in the absence of any resistance, violence, or opposition to them, police officers cannot reasonably threaten to hurt people they are searching.

Immediately after being threatened with a firearm, this defendant was dragged from his vehicle, thrown to the ground, and ordered to spit out what was in his mouth by an officer whose arm was around his neck. Once again, we conclude that whether or not this defendant's airflow or blood supply was actually impaired, the level of violence and force used by the officer was unreasonable because of the enormous risk of such results. It is not plausible to us that in a struggle of this nature, there would not be a very high risk of choking and a very low likelihood of a careful "placing" of hands on the suspect's neck to prevent swallowing without choking. In the totality of the circumstances, there was a considerable risk to defendant's safety and health under the first part of the Winston test.

The dangers presented by constricting the throat make such force anything but reasonable. "The application of force to a person's throat is a dangerous and sensitive activity. It is the type of force that, more than any other, is likely to result in violent resistance by the arrestee." People v. Trevino, 72 Cal.App.3d 686, 140 Cal.Rptr. 243, 246 (1977); accord People v. Jones, 209 Cal.App.3d 725, 257 Cal.Rptr. 500, 503 (1989). The case of State v. Tapp, 353 So.2d 265 (La.1977), is an example. When the police attempted to disgorge evidence from a suspect's mouth by applying pressure to the throat, the suspect resisted. A twenty- to thirty-minute melee ensued involving five officers. Two officers and the suspect were hospitalized as a result. Id. at 267. Even worse, death has resulted when officers have constricted a suspect's throat. See, e.g., Williams v. Kelley, 624 F.2d 695, 696-97 (5th Cir.1980); McQurter v. City of Atlanta, 572 F.Supp. 1401, 1407-08 (N.D.Ga.1983). In the refined atmosphere of an appellate court, we can discuss the possibility of a specialty grip that prevents swallowing without choking. However, in the arrest situation, the necessity of immediately constricting the throat and the suspect's predictable lack of cooperation preclude carefully selecting points on the throat prior to applying force. See People v. Cappellia, 208 Cal.App.3d 1331, 256 Cal.Rptr. 695, 701 (1989) (Wallin, Assoc. J., concurring). The officer will be compelled to prevent swallowing by using whatever brute force is available.

The second part of the Winston test assesses intrusions on bodily integrity and dignitary interests, and the level of intrusion here was likewise very high. Defendant was assaulted with a loaded weapon, dragged to the ground, had some degree of force applied to his throat, and had fingers inserted in his mouth without his consent or cooperation. Thus, the weight of the risk and the intrusion under the first two parts of the Winston test was considerable, and the critical determination is whether the third factor--the need to preserve evidence of criminal behavior--can shift the...