OPINION
Defendant Dennis M. Hodson appeals his conviction for unlawfully distributing or arranging to distribute a controlled substance, in violation of Utah Code Aim. § 58-37-8(l)(a)(ii) (1990), and for unlawful possession of a controlled substance with intent to distribute, in violation of Utah Code Ann. § 58-37-8(l)(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 Ms head, and ordered defendant to “spit it out.” Garcia then put Ms 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 cMps by inserting Ms 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 war-rantless search. The trial court demed the motion, reasomng:
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 Ms stomach acids and there was the potential that it could have been lethal to Mm. Under the circumstances of tMs 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 demed.
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 tMs arrest, Wardle attempted to invoke the Fifth Amendment to protect
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.
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,
ANALYSIS
Defendant argues that the removal of the eight chips of black tar heroin from his mouth violated his fourth amendment
Because this was a warrantless search and seizure, the State has “the burden
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,
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,
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 illegal drugs from defendant provided a clear indication that evidence would be found in defendant’s mouth. Thus, there was probable cause.
The State must establish exigent circumstances justifying a warrantless search by showing “either that the procurement of a warrant would have jeopardized the safety of the police officers or the public, or that the evidence was likely to have been lost or destroyed.” State v. Palmer,
With respect to the second exigent circumstances exception, the Utah Supreme Court has said that “the police must ... believe that ... either contraband or evidence of a crime ... may be lost if not immediately seized.” State v. Larocco,
Palmer can be easily distinguished from the instant case. In Palmer, the defendant swallowed an item that would not be affected by its passage through defendant’s body. In this case, the agents did not know how the heroin was packaged, and there was the possibility, as the trial court observed, that “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.” See also People v. Cappellia,
Reasonableness
The third prong of the Schmerber test requires that the method chosen to retrieve the evidence be reasonable, and that the search be carried out in a reasonable manner. Whether the search was reasonable “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor,
At the pretrial hearing on the motion to suppress, the trial court held that the methods Garcia used to obtain the evidence were “appropriate” given the fact that the evidence could have been destroyed or altered if defendant swallowed it and that ingesting the heroin could be lethal to defendant. However, the parties did not present any actual testimony to the trial court, claiming to have stipulated to the pertinent facts. Nonetheless, the memoranda provided to the court in connection with the motion to suppress did not contain stipulated facts; rather, they set forth significantly different accounts of Garcia’s actions. Defendant claimed that Garcia threatened to shoot him if he did not spit out the heroin, whereas the State simply conceded that Garcia held a gun to defendant’s head. Defendant characterized Garcia’s actions while holding him down on the ground as “choking,” while the State said at some points in the memorandum that Garcia “choked” defendant and at others that he prevented him from swallowing. Therefore, although the trial court ruled that Garcia’s actions were reasonable, it made no findings as to precisely what those actions were, and, indeed, given the contradictory memoranda and lack of actual testimony, such findings would have been difficult.
“[T]he issues presented in search and seizure cases are highly fact sensitive.... Thus, detailed findings are necessary to enable this court to meaningfully review the issues on appeal.” State v. Lovegren,
The only testimony at trial concerning Garcia’s methods was provided by Smith who described him as “choking” defendant to get him to spit out the heroin chips. Smith did not elaborate on what she meant by “choking,” and it is not clear from the context of her testimony how she intended that term to be understood.
There are no Utah cases that discuss the reasonableness of “choking” an individual to obtain evidence. However, this issue has been addressed by many other jurisdictions. The approaches of other jurisdictions create a spectrum that ranges from (1) permitting choking generically, Espinoza v. United States,
In determining appropriate guidelines for police officers concerning the degree of force they may employ to obtain evidence, we look to the three factor balancing test set forth in Winston v. Lee,
After review of the facts in cases upholding almost any degree of “choking,” we have determined that the potential of serious harm inherent in cutting off an individual’s air or blood supply exceeds the value to the community of obtaining evidence. However, to adopt the diametrically opposed position preventing police officers from taking any immediate action when an individual is about to swallow drugs would disregard both the safety of the individual and the community’s interest in law enforcement. Therefore, we adopt a standard representing the middle ground between these positions and hold 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.” Williams,
In adopting this standard, we note that it involves minimal threats to an individual’s safety or health. See Cappellia,
“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 be harmed by them and may have to submit to an even more disagreeable procedure for his own protection or for retrieval of the evidence.”
Cappellia,
The second question of reasonableness concerns Garcia’s placement of a loaded gun to defendant’s head to enforce compliance with his demands that defendant spit out the heroin. In support of his position, defendant cites People v. Allen,
The facts of the instant case fall within the exception described in Allen. Destruction of the evidence appeared to be imminent, and the officers were unable to determine whether the drugs were packaged in such a way that they would not harm or even kill defendant while passing through his system. Furthermore, there was no stated threat to shoot in this case and Garcia quickly put the gun down, alleviating any implied threat. It is true that use of a loaded gun does involve some risks to defendant’s safety and does intrude upon defendant’s dignitary interests. However, after weighing these factors against the community’s interest in obtaining evidence, and in protecting defendant from the ill effects of swallowing drugs, we conclude that in the absence of an express threat to kill defendant, Garcia’s action constituted a reasonable response to a crisis situation.
The trial court has not set forth factual findings in sufficient detail for this court to conduct a meaningful review of the validity of the warrantless bodily search and seizure of defendant. We therefore remand for factual findings concerning whether Garcia cut off defendant’s air or blood supply or merely prevented him from swallowing. If the trial court concludes that defendant was imper-missibly choked, he is entitled to a new trial at which the evidence must be suppressed. Defendant’s second claim of unreasonable search and seizure, based upon the use of a gun in an attempt to obtain evidence, fails given the factual circumstances of this case.
BILLINGS and GARFF, JJ., concur.
Notes
. Defendant also claims that permitting Wardle to partially invoke the Fifth Amendment with respect to the events of July 11, 1991 denied him his sixth amendment right to confrontation. We find this argument to be without merit. Review of the record reveals that the trial court only excluded four questions requested by defense counsel. These concerned whether Wardle used the United States mail to mail heroin on the 11th, whether she used the Greyhound Bus Services to transport the heroin, whether the heroin was being sent to a source in another state, and whether the heroin Wardle sometimes kept in her purse was for personal use. The trial court properly excluded these questions due to their incriminating nature, their very limited relevance, and the fact that this testimony would be unnecessarily cumulative. See United States v. DeSoto,
. Further, even if defendant’s appeal on this issue were timely, defendant has no standing to raise violations of Wardle’s fifth amendment rights because the right against self-incrimination is personal. United States v. Agajanian, 852 F.2d 56, 58 (2d Cir.1988).
. Defendant also alleges violation of his state constitutional rights. However, because defendant did not provide independent state constitutional analysis, we will not reach these issues. State v. Archambeau,
.Defendant also argues that the seizure violated his fourteenth amendment right to due process of law. The Supreme Court has rejected this approach, holding:
[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness” standard, rather than under a "substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.
Graham v. Connor,
. Although the trial court did not state specifically that the officers had probable cause, the undis