relying on street-corner drug vendor profile to investigate person for leaning into a stopped car at a corner where drug transactions were known to transpire
How later courts described this case
- relying on street-corner drug vendor profile to investigate person for leaning into a stopped car at a corner where drug transactions were known to transpire
- “[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.”
- reasonable search where defendant remained standing, search was accomplished quickly with defendant opening his mouth as soon as pressure was applied to his throat, and defendant did not appear to be injured
Written by the judges who cited it.
The opinion
Patricia A. Blackmon, Judge,
dissenting.
The majority concluded that the following conduct and procedure used by the police in order to prevent the destruction of evidence is reasonable and permitted under both the Ohio and United States Constitutions:
“ * * * Approaching the defendant quickly from the right rear, the detective put his left hand on the defendant’s back, swung around in front of the
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defendant, and grabbed the front of the defendant’s neck with his right thumb and forefinger, choking the defendant with a firm thrust of the hand, as in a karate chop. The defendant immediately spat out two half-inch square plastic bags.”
I am compelled to dissent from the majority’s holding. This compulsion stems from my grave concerns about the health threat caused by the use of this type of potentially deadly conduct.
Thus, I cannot ratify the choking of a human being to obtain evidence, hidden in the mouth, as a reasonable search and seizure. The state wholly fails to present evidence sufficient to establish the societal compelling need to obtain evidence in such a manner. Because there is no such evidence, the balancing test that must be applied as a matter of law overwhelmingly tips in favor of the individual’s interest in privacy and security as it relates to the human body.
In my opinion, the conduct of Detective Falzone fails the test of constitutional permissiveness under any of the three major United States Supreme Court cases on this issue,
Rochin v. California
(1952), 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 ,
Schmerber v. California
(1966), 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 , and
Winston v. Lee
(1985), 470 U.S. 753 , 105 S.Ct. 1611 , 84 L.Ed.2d 662 . Additionally, the majority’s analysis seems to be at least somewhat premised on the idea that by hiding the evidence in his mouth, the appellant was “destroying” the evidence and, therefore, the exigency of this conduct precluded the use of less intrusive means. I disagree.
The issue presented in this appeal is whether the use of potentially deadly force is constitutionally permissible to obtain suspected narcotics that have been hidden in the mouth of a suspect. When the search is for evidence or to prevent the destruction of that evidence, the Fourth Amendment interest of privacy and security must be balanced against the severity of the proposed intrusion.
The United States Supreme Court initially addressed concerns, raised in this appeal, in
Rochin, supra.
In
Rochin ,
a case similar on its facts to the extent that the initial attempts to obtain the evidence were done by choking the defendant, the United States Supreme Court concluded:
“ * * * the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about com-batting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too
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close to the rock and the screw to permit of constitutional differentiation.”
Id.
342 U.S. at 172 , 72 S.Ct. at 209-210 , 96 L.Ed. at 190 .
This statement was made by the Supreme Court in response to the conduct of three law enforcement officials. After an unsuccessful attempt at choking Rochin to try and remove two capsules of morphine from his mouth, the officers took him to a hospital where an emetic was forced into his stomach against his will. He subsequently regurgitated the capsules he had swallowed.
“Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend ‘a sense of justice.’ ”
Id.
at 173 , 72 S.Ct. at 210 , 96 L.Ed. at 190 .
I quote from
Rochin
because I agree with the majority’s proposition that it is illustrative, even though it was decided before the Fourth Amendment was deemed applicable to the states.
In the instant case, it is my conclusion that the use of potentially life-threatening force on the appellant to obtain suspected contraband hidden in his mouth is shocking to the conscious and offends a sense of justice.
The majority’s rationalization of the choking is intriguing: “The method and manner of the search were not unreasonable. As far as can be determined from the transcript, the officers did not use excessive force to accomplish the search: the defendant remained standing throughout the search; the search was accomplished quickly with the defendant opening his mouth as soon as pressure was applied to his throat; and the defendant did not appear to be injured as a result of the contact.”
What would have to occur before the search would be deemed unreasonable? The defendant would have to be thrown to the ground and injured. More important, the potentially deadly force of choking a human being could in fact cause death. There would be no conciliation to the family of the decedent in a finding that the search was unreasonable.
The use of potentially life threatening force, in this situation, should be deemed shocking to the conscience and offensive to one’s sense of justice, even where the accused is a suspected drug dealer and an undesirable element of our society. He is still a human being.
The same conclusion is reached under the criteria set forth in
Schmerber v. California, supra.
In
Schmerber ,
the United States Supreme Court set forth three criteria for the reasonableness of an intrusive search: (1) the government must have a clear indication that incriminating evidence will be found, (2) there must be a search warrant or exigent circumstances such as the
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imminent destruction of evidence to excuse the warrant, and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner.
In the instant case, there exists only one of the three criteria to establish the reasonableness of an intrusive search. Indeed, the one criterion that is present, when contemplating the health and safety of the suspect, is the least important. It is the first. Clearly, in the case at bar, the Cleveland police had a clear indication that incriminating evidence would be found.
However, the second and third prongs cause this search to fail the reasonableness test under
Schmerber .
As it relates to the second prong, the majority opinion suggests that exigent circumstances were present which would have made it extremely impractical for the officers to obtain a warrant. The majority asserts that the first of these circumstances was the fact that the defendant was in the process of destroying the evidence by hiding it in his mouth. Furthermore, according to the majority, the officer was not aware of the manner in which the narcotics were packaged. They could have been packaged in a manner as to be impervious to intestinal processes or unpack-aged and metabolized before a blood test could have been administered.
It is baffling to me that the majority concluded that the appellant’s placing the evidence in his mouth was equivalent to the destruction of the evidence. It is disturbing that the majority concluded that the use of potentially deadly force, choking, is reasonable and can be performed in a reasonable manner.
It is appropriate, in discussing these two prongs, that the issue of less intrusive means also be discussed. It is conceivable that upon reasonable verbal requests or reasonable detention the appellee would have opened his mouth and surrendered the cocaine. This is undoubtedly a less intrusive means than the choking of the appellee.
Assuming that he refused and held the evidence in his mouth, the appellant could have been taken to a hospital and caused to open his mouth by a physician. In
Schmerber ,
the United States Supreme Court expressed an acceptance of a search conducted in a reasonable manner by a physician. The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening.
Assuming that the appellee swallowed the cocaine, if the drugs were packaged in such a way as to be impervious to intestinal processes, the physician would certainly be in a position to pump the stomach of the appellee, which is a reasonable medical procedure less traumatic than the forced emetic in
Rochin .
Again, this is the kind of conduct that
Schmerber
finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision.
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“Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.”
Id.,
384 U.S. at 771-772 , 86 S.Ct. at 1836 , 16 L.Ed.2d at 920 .
If the drugs were unpackaged and metabolized, a blood test, which is far more reasonable than choking for all the reasons enumerated above, could have been administered and would have revealed cocaine in the blood of the appellee.
Any of these lesser intrusive means could have been utilized without a warrant.
Schmerber
clearly justifies them under the theory of a valid warrantless search incident to arrest.
In
Winston v. Lee, supra,
which was decided after each of the cases cited by the majority that permitted this kind of intrusion,
i.e.,
the use of force, the court held that a bodily intrusion is unjustified if it endangers the life and health of the suspect, especially when the state cannot show a compelling societal need to obtain the evidence in such a manner.
I cannot ratify a decision that permits a law enforcement officer to make the medical decision of when the potentially deadly conduct of choking the suspect is or is not an endangerment to the suspect’s life or health. The search does not pass the test in
Lee .
This is an unreasonable search and seizure because of the health threat caused by the use of this conduct which is potentially deadly.
Finally, I must adopt the reasoning set forth by Justice Douglas, with whom Justice Black joined in his dissent in
Breithaupt v. Abram
(1957), 352 U.S. 432, 444 , 77 S.Ct. 408, 414 , 1 L.Ed.2d 448, 455 , when he made the following observation, which so eloquently captures my sentiment today:
“ * * * And if the decencies of a civilized state are the test, it is repulsive to me for the police to insert needles into an unconscious person in order to get the evidence necessary to convict him, whether they find the person unconscious, give him a pill which puts him to sleep, or use force to subdue him. The indignity to the individual is the same in one case as in the other, for in
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each is his body invaded and assaulted by the police who are supposed to be the citizen’s protector.”
I would affirm.