State v. Williams , 16 Wash. App. 868 ( 1977 )

Pearson, J.

The State appeals from an order suppressing evidence seized from the person of James Delbert Williams. At issue is the amount of force the police may constitutionally employ to prevent a person from swallowing evidence. We affirm the order of suppression.

On the evening of March 17, 1975, Deputy Robert Songer of the Clark County Sheriff’s office, in company with Officer Robert Chambers of the Vancouver police and other officers, executed a warrant to search the residence and person of James Delbert Williams for heroin. After gaining entry, the police took the defendant Williams into a bedroom and searched him, finding no contraband. They escorted him into the living room, which they began to search while he sat on the couch. Williams reached for a glass of water on a coffee table. Deputy Songer, experienced in narcotics police work, suspected defendant was about to try to swallow drugs and ordered him not to drink the water and to open his mouth. Testimony conflicts as to whether defendant complied, enabling Songer to see red and yellow balloons he assumed to contain heroin, but the Superior Court entered a finding according to defendant’s version that he refused to open his mouth. It is undisputed that Songer used his flashlight to hit Williams’ hand away from the water and grabbed defendant’s nose and chin to hold his mouth open. Officer Chambers grabbed Williams around the throat to prevent swallowing. The police pinned defendant in this way to the couch and called for a spoon, which was used to extract three balloons of heroin from Williams’ mouth. The court found that 30 to 60 seconds elapsed from the officers’ seizure of Williams until the heroin was retrieved. Defendant testified he could not breathe while the officers had him in their grip, although he did not lose consciousness or require medical treatment.

Officer Chambers testified Williams was able to breathe despite the grip on his throat, but the Superior Court found that Chambers was choking Williams so that he “could not and/or had extreme difficulty breathing.” Although findings of fact are not required in a suppression hearing and are mere surplusage when the testimony does not conflict, State v. Agee, 15 Wn. App. 709, 552 P.2d 1084 (1976), if the court elects to enter findings of fact on disputed testimony, we must respect the court’s evaluation of the witnesses and accept unchallenged findings as verities. State v. Howard, 7 Wn. App. 668, 502 P.2d 1043 (1972). The State has not challenged these findings of fact, and the court’s finding of a breathing impairment must stand. In oral argument, the State conceded that substantial evidence existed to support the court’s finding that defendant was choked for 30 to 60 seconds.

It is unnecessary for us to consider issues raised by the defendant—for the first time on appeal—concerning whether a warrant to search a person authorizes a search into body cavities; or, if not, whether there was probable cause for Songer to force defendant’s mouth open upon seeing him reach for water; or whether this was an impermissible “second search” following completion of a search according to warrant. Our decision turns on an assessment of the police use of force, which the Superior Court in effect held to be excessive.

The generative case articulating the standards for police use of force to extract physical evidence from the body of a nonconsenting suspect is Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205, 25 A.L.R.2d 1396 (1952). In Rochin, the police entered the defendant’s bedroom and saw him put two capsules into his mouth. Three officers “jumped upon him” and unsuccessfully tried to extract the capsules. The defendant was taken to a hospital and forced to ingest an emetic solution through a tube. Rochin then vomited up the capsules containing morphine. The Supreme Court characterized the officers’ conduct as “brutal” and shocking to its conscience, and held that their method of retrieving the evidence was “too close to the rack and the screw” not to have violated due process of law. Rochin v. California, supra at 172-74.

Since the Rochin decision, several jurisdictions have applied the restraints of due process of law to examine the means used by police to extract evidence from the mouths of suspects. General principles have evolved from the case law. A suspect has no constitutional right to destroy or dispose of evidence by swallowing, consequently he cannot consider the mouth a “sacred orifice” in which contraband may be irretrievably concealed from the police. People v. Bracamonte, 15 Cal. 3d 394, 405 n.6, 540 P.2d 624, 632 n.6, 124 Cal. Rptr. 528 (1975); People v. Sanders, 268 Cal. App. 2d 802, 74 Cal. Rptr. 350 (1969); People v. Bass, 214 Cal. App. 2d 742, 29 Cal. Rptr. 778 (1963); Foxall v. State, 298 N.E. 2d 470 (Ind. App. 1973). The police may use reasonable force to attempt to prevent the swallowing of evidence, State v. Young, 15 Wn. App. 581, 550 P.2d 689 (1976); People v. Bracamonte, supra at 405 n.6; People v. Bass, supra; State v. Santos, 101 N.J. Super. 98, 243 A.2d 274 (1968), particularly when a search for evidence is under way pursuant to a warrant, as in this case. United States v. Harrison, 432 F.2d 1328 (D.C. Cir. 1970); Foxall v. State, supra. The reasonableness of the force used to recover evidence put into the mouth necessarily depends on the facts of each case. State v. Young, supra.

At the extreme of unreasonableness there are situations of officers “jumping upon” a suspect and causing his stomach to be pumped against his will, as in Rochin v. California, supra, and People v. Bracamonte, supra. Likewise, the courts have properly forbidden a “judo choking technique” designed to stop the flow of blood to the head, People v. Sanders, supra, and clubbing a suspect on the back of the neck. People v. Parham, 60 Cal. 2d 378, 384 P:2d 1001, 33 Cal. Rptr. 497 (1963). However, a punch to the solar plexus which resulted in the disgorgement of evidence was held permissible because it was necessary to overcome fierce resistance to a valid arrest. United States v. Mont, 306 F.2d 412 (2d Cir. 1962).

In a line of California decisions, the police are forbidden to “choke” a suspect to prevent him from swallowing evidence. E.g., People v. Martinez, 130 Cal. App. 2d 54, 278 P.2d 26 (1954); People v. Erickson, 210 Cal. App. 2d 177, 26 Cal. Rptr. 546 (1962); People v. Parham, supra; People v. Sanders, supra. However, other jurisdictions have allowed “choking” or “grabbing” the defendant by the throat. United States v. Harrison, supra; Espinoza v. United States, 278 F.2d 802 (5th Cir. 1960); State v. Santos, supra.

We subscribe to the view 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. Webster’s Third New International Dictionary 396 (1969); People v. Bass, supra. In State v. Young, supra, Division One of this court reviewed a trial court’s finding and oral decision that the policeman had placed his hands on the suspect’s throat but had not “choked” him. Although the officer also pinched the suspect’s nose shut, he remained able to breathe: The court expressly concluded the defendant had not been choked, and the Court of Appeals agreed that the use of force was reasonable to prevent the destruction or concealment of evidence.

This case differs from Young. Here, the defendant was pinned to the couch—one officer’s hands pinching his nose and spreading his mouth open, the other officer’s hands around his throat, effectively preventing his adam’s apple from moving. Williams had extreme difficulty breathing. The balloons were ultimately pried from his mouth with a spoon. The prosecutor has acceded to the court’s finding that defendant was indeed choked for 30 to 60 seconds. This course of conduct was so unnecessarily harsh as to shock the conscience of this court; “choking” off a suspect’s air supply is violative of due process of law.

We emphasize that the police should be able to take reasonable measures to prevent the destruction of evidence which they are entitled to possess. Specifically, we believe the constitution permits them to place their hands on a suspect’s neck to prevent the swallowing of evidence, or to go further when necessary to overcome active resistance. But Williams did not resist beyond refusing briefly to spit out the drugs. We hold that the police, by choking Williams so he could hardly breathe, exceeded the bounds of reasonableness in these circumstances.

The order suppressing evidence is affirmed.

Petrie, C.J., concurs.