Lead Opinion
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,
On July 12, 1991, Janet Wardle, a poliсe 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 Hod-son’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.
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(l)(a)(ii), and unlawful possession of a controlled substance with intent to distribute, in violation of Utah Code Ann. § 58-37-8(l)(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.
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,
We first discuss the appropriate standard of review. We have stated that “a trial court determination of whether a sрecific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable non-deferentially for correctness.” State v. Pena,
In Winston v. Lee,
In this case, the record shows that the arresting officer reached into the automobile where dеfendant 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 madе 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.
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,
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 somе 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 balance.
The justification for the force used in this case is the need to preserve evidence and protect defendant from harm. However, we do not know, and cannot ascertain from the record, any of the necessary facts which might have supported a reasonable fear by the officers that swallowing the plastic-wrapped chips would render their contents nondiscoverable or harmful to defendant. There is considerable indication in the cases cited by both parties that drug dealers commonly seek to secrete drugs by means of swallowing, and it does not seem likely that they would routinely risk their own sаfety or lives. Jones,
In the absence of an urgent need to preserve evidence, there cannot be a justification for the significant risks to health and safety posed by using the kind of force in this case to get a suspect to spit out what is believed to be a mouthful of drugs. It is true that a suspect has no right to refuse an order to disgorge, but refusal does not lift all limits on
Furthermore, we decline to adopt the position on throatholds approved by the court of appeals. It is true that a majority of courts that have considered the question have permitted some degree of touching of a suspect’s throat to prevent swallowing, so long as no impairment of breathing or blood flow results. We think that the facts of this ease demonstrate the policy mistake those courts have made. The test, as articulatеd by the court of appeals, contemplates a careful, measured use of the hands to prevent swallowing but not to interfere with life functions. The atmosphere of this search contained nothing careful or measured; it was split-second, violent, and noisy, as surely a majority of “drug busts” must be. Moreover, the risks to health and safety posed by uneareful hands are extreme. We agree with the assessment of the California Court of Appeals in Trevino,
The application of forcе 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.
The State has argued that the term “choking” does not apply to situations where hands are merely “placed” on the throat and no obstruction of airways or blood flow is contemplated. There is no evidence in this record, however, that such a procedure exists. The State claims that the hold used on this defendant was a “neckhold” rather than a “lateral vascular neck restraint” (LVNR) and that it can be specifically described and carried out by police officers. This claim is unsupported by the record, and we cannot see how the trial court would be able to base the requisite findings on the evidence before it. LaFave accurately notes the practical concerns about undertaking the inquiry at all (although he ultimately recommends it):
The Williams position is certainly sound in a thеoretical sense, for it distinguishes between that force which merely prevents swallowing, the legitimate objective of the force, and that which goes farther by preventing breathing or obstructing the blood supply. It might be objected, however, that it draws the line in a way which presents some serious practical problems. One is that under the Williams definition of “choking” it will be extremely difficult for the court, on a motion to suppress, to make the necessary after-the-fact determination of рrecisely how the officer placed his hands on the arrestee’s throat. Another is that it may be very difficult for the well-intentioned officer, under the exigencies of the moment, to ensure that the force he applies to the arrestee’s throat is only of the permitted variety.
2 Wayne R. LaFave, Search and Seizure § 5.2(i), at 473 (2d ed. 1987) (footnote omitted).
We are persuaded though LaFave was not. Thus, in the absence of expert testimony to the effect that safe methods exist (and can be predictably applied) for placing hands upon аrrestees’ throats to prevent swallowing without risk to breathing or circulation, we will not adopt a generalized rule permitting this form of evidence seizure as a routine matter. The risk of constitutional violations (not to mention injury) is too high and the need too speculative given the fact that other reliable means of securing the evidence are available.
In conclusion, we hold that the totality of the circumstances in this ease demonstrates an unreasonable seаrch and seizure. The level of force exerted by the searching officer — taking into account the threatening use of the gun, the manhandling of defendant, and the pressure of an arm around defendant’s throat to force him to disgorge the contents of his mouth — was excessive and not shown to be required by the need to preserve the evidence or protect defendant. We likewise decline at this time to embrace a rule which qualifies as constitutional the placing of officers’ hands on the throats of arrestees absent evidence showing that such practices can be safely carried out in the majority of arrest situations. Because the burden of showing reasonableness in the amount of force used and the safety of any form of “neckholds” lies with the State, it is not entitled to a remand to put on new evidence.
Notes
. After the drug buy was completed, another agent recovered a container holding two more chips of heroin from Wardle’s purse. Wardle testified that during the drug buy, she gave Hod-son one hundred dollars and he dropped “something" from his hand into her purse. There is some question as to whether Hodson's conviction can be sustained on the basis of these two chips alonе, irrespective of the evidence seized from his mouth. However, as this issue has not been briefed by either party, we address only the issue of whether the evidence recovered from Hod-son's mouth should be suppressed.
. Because Hodson did not provide an independent state constitutional analysis, the court of appeals analyzed the issue only under the federal constitution. Hodson,
Dissenting Opinion
dissenting:
I dissent. The majority appropriately analyzes the reasonableness of the search by weighing (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. Winston v. Lee,
The officer’s use of his gun and the throat-hold admittedly involved a threat to Hodson’s safety and health. However, no express threat accompanied the brief display of the gun, and Hodson’s own actions in attempting to swallow several containers of illegal drugs in questionable packaging equally threatened his own safety and health. Moreover, a defendant should not be allowed to object to the fact that more force was used when it was his active resistance that caused the conflict to escalate. 2 Wayne R. LaFave, Search & Seizure § 5.2(i), at 474 (1987) [hereinafter LaFave].
The officer’s use of his gun and the throat-hold also intruded upon Hodson’s dignity interests. However, suspects in serious crimes often are arrested at gunpoint, sometimes to prevent them from destroying the physical evidence of their crime. Also, “it makes little sense to say that the minimal pressure necessary to prevent swallowing is excessive, particularly when it is considered that if the drugs are swallowed the defendant ... may have to submit to an even more disagreeable procedure ... for retrieval of the evidence.” LaFave § 5.2(i), at 473. Although admitting that “drug dealers commonly seek to secrete drugs by means of swallowing,” the majority fails to provide any guidance to officers facing similar scenarios in the future other than to say that the evidence is “readily (if inconveniently) accessible through nonviolent means.” These “nonviolent means” are also sure to intrude upon a defendant’s dignity interests in personal privacy and bodily integrity. Cf. Rochin v. California,
The community has a strong countervailing interest in obtaining the evidence to fairly and accurately determine guilt. Despite the majority’s confidence that the drugs will be “susceptible to identification and recovery in supervised, nonviolent post-arrest settings,” there is no evidence in the record on wMch to base that assertion. The trial court correctly found that the officers “could have kept the defendant in isolation but the evidence of the drug ingestion could have been destroyed [and] the amounts could have been altered by his stomach acids.”
As noted by the majority, other jurisdictions predominantly hold as reasonable some degree of force to obtаin evidence from a suspect’s mouth. See LaFave § 5.2(i), at 472. The court of appeals 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.’” Hodson,
Some jurisdictions allow even more force to obtain evidence from a suspect’s mouth than the сourt of appeals’ standard. See, e.g., Espinoza v. United States,
The court of appeals properly determined that assuming Hodson’s air and blood supply were not cut off, the community’s interest in obtaining the evidence and in protecting Hodson from the effects of the drugs he was about to swallow outweighed his individual interests. The degree of pressure to the throat permitted by the court of appeals’ standard is reasonable and workable and is wеll supported by the majority of cases in other jurisdictions. Also, the temporary use of the gun in the crisis situation did not render the search unreasonable.
I would affirm the court of appeals’ decision.
Concurrence Opinion
concurring:
I join the opinion of Justice Durham. I write only to emphasize the fact-sensitive nature of this decision. First, there was nothing in the record to suggest that the evidence could not have been obtained in another way, either by permitting it to pass through defendant, by pumping his stomach, or by measuring his blood levels for indications of the presence of the drug and a determination of the quantities. Although each of these methods may have been rather unpleasant to defendant and may have amounted to an invasion of his person, he impliedly consented to them by trying to swallow the evidence and forcing the police to resort to these methods. Whatever their drawbacks, at least they are not within the exclusive control of the arresting officer and can be performed under circumstances where others can monitor them and where the risk of harm to the suspect is not uniquely high.
Second, nothing in the record indicates that the methods the court of appeals would have allowed for the field extraction of evidence from a suspect’s mouth are empirically tested, are reasonably safe, and can be predictably used in the field without posing an unreasonable risk of harm to the suspect.
In my view, a future case might present facts that would alter either or both of these factors sufficiently to warrant a reconsideration of the propriety of so-called “choke” extraction methods.