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District Court of Appeal, Second District, Division 3, California.


Cr. 4452.

Decided: December 12, 1950

David C. Marcus, Los Angeles, for appellant. William C. Ring, Los Angeles, as amicus curiae, on behalf of appellant. Fred N. Howser, Atty. Gen., Howard S. Goldin, Deputy Atty. Gen., for respondent.

Defendant was charged with violating section 11500 of the Health and Safety Code in that on July 1, 1949, he unlawfully had in his possession a preparation of morphine. In a trial without a jury he was convicted. He appeals from the judgment, all orders and rulings of the court.

On July 1, 1949, about 9 a. m., three deputy sheriffs entered defendant's bedroom after having forced the bedroom door open. They were not authorized by search warrant or at all to enter the room. Defendant and a Mrs. Hernandez were in the room. Two capsules, which were wrapped in cellophane, were on a small table therein. Jack Jones, one of the deputies, said to the defendant, ‘Whose stuff is this?’ Defendant then grabbed the capsules and put them in his mouth. Jones testified that at that moment the three deputies jumped upon the defendant, grabbed him by the throat, and began to squeeze his throat in an effort to eject the capsules from his mouth; that force was applied to his throat; that defendant ‘hollered a little bit’; that he (Jones) put his fingers in defendant's mouth; and they put handcuffs on defendant while he was in the room. Jones then took the defendant to the Angelus Emergency Hospital and into the operating room there. A doctor's assistant strapped the handcuffed defendant to the operating table. Dr. Mier, assumed by the officers to be a doctor of medicine, placed an empty pail by the defendant, placed ‘a tube down the defendant's throat,’ and released a white chemical solution into the tube and into defendant's stomach. The defendant vomited into the pail, and two capsules in cellophane floated in the pail. Jones took the capsules from the pail and delivered them to a chemist in the sheriff's office. The chemist testified that he examined the two capsules and shook what powdery substance that appeared to be within them into small amounts of chemical reagents that he was using to make the test; that the amount he shook out was very small and was not enough to weigh; that the amount was consumed in the analysis; that the substance which he shook out of the capsules was morphine or one of its close derivatives. The two capsules were shown to the chemist while he was a witness. He testified further that they appeared to be empty; there is a very small amount of very fine powdery residue in one of the capsules; there is a stain or residue of some sort in the other capsule; and the brownish powder in the capsules contains morphine.

Jones testified further that defendant said he had obtained these two capsules of heroin from a person on Sixth Street the night before the arrest, and that he had been using heroin for the past six months.

Defendant did not testify, but it was stipulated that if he were a witness he would testify that the two capsules were taken from him by use of a stomach pump and without his consent and against his will.

Appellant contends that the arrest, search, seizure and examination of defendant violated rights guaranteed to him by Amendments IV and XIV of the Constitution of the United States and by Article I, sections 1, 13, and 19 of the Constitution of California, and that the evidence procured thereby was inadmissible; and that the coercive stomach pumping of defendant to obtain evidence against him compelled him to be a witness against himself in violation of said Amendment XIV and said Article I, section 13. He argues that the decision in People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383, which was to the effect that illegally obtained evidence is admissible in a criminal trial in this state, should be overruled; and that the federal rule, which is to the effect that such evidence is not admissible, should prevail in the California courts.

The questions herein, regarding the admissibility in California courts of illegally obtained evidence, have been determined adversely to appellant's contentions. People v. Gonzales, 20 Cal.2d 165, 169, 124 P.2d 44; People v. Kelley, 22 Cal.2d 169, 173, 137 P.2d 1; People v. Harmon, 89 Cal.App.2d 55, 58, 200 P.2d 32; People v. Garcia, 97 Cal.App.2d 733, 218 P.2d 837; People v. One 1941 Mercury Sedan, 74 Cal.App.2d 199, 202, 203, 168 P.2d 443; see People v. Raffington, 98 Cal.App.2d 455, 220 P.2d 967. In People v. Gonzales, supra, it was said, 20 Cal.2d at page 169, 124 P.2d at page 46: ‘* * * the accepted rule in this state, as in many others, permits the introduction of improperly obtained evidence on the ground that the illegality of the search and seizure does not affect the admissibility of the evidence.’ In People v. Kelley, supra, it was said, 22 Cal.2d at page 173, 137 P.2d at page 3: ‘It was concluded [in the Gonzales case] that the use of evidence obtained through an illegal search and seizure does not violate due process of law because it does not affect the fairness or impartiality of the trial. The fact that an officer acted improperly in securing evidence presented against a defendant does not prevent the court from rendering a fair and impartial judgment.’ In People v. One 1941 Mercury Sedan, supra, wherein marihuana was pumped from the stomach of an occupant of the automobile, it was said, 74 Cal.App.2d at pages 202 and 203, 168 P.2d at page 445: ‘Whatever our views may be as to the propriety of officers of the law using illegal means to enforce the law, the rule is now settled in this state, contrary to the rule prevailing in the federal courts and in some states, that where competent evidence is produced on the trial the courts will not permit an inquiry into its source or the means by which it was obtained. In other words, illegally obtained evidence is admissible on a criminal charge in this state.’ The contentions of appellant are not sustainable.

Although the statements made hereinabove are sufficient for the decision herein, it should be stated that the rules of evidence which we are following must not be regarded by police officers and others as a license to indulge in lawless acts. This court does not approve the conduct of deputy sheriff Jack Jones and deputies Smith and Shelton who were with him at defendant's home. Under the record here, they were guilty of unlawfully breaking into and entering defendant's room and were guilty of unlawfully assaulting and battering defendant while in the room. Under the record here, deputy Jack Jones and the alleged doctor of medicine, Mier, were guilty of unlawfully assaulting, battering, torturing and falsely imprisoning the defendant at the alleged hospital. A remedy of defendant for such highhanded and reprehensible conduct is an action for damages. It would appear that the sheriff should review the qualifications of said deputies to be entrusted with the authority of public office. Also it would appear that the qualifications of said Mier as an ethical doctor of medicine should be reviewed.

The judgment, and the order denying defendant's motion for a new trial, are affirmed. The purported appeal from all other orders and rulings of the court is dismissed.

I concur in everything said by Mr. Justice Wood. To me, the record in this case reveals a shocking series of violations of constitutional rights. I am in entire agreement with the views expressed by Mr. Justice Carter in his dissent in People v. Gonzales, 20 Cal.2d 165, 174, 124 P.2d 44. However, as a member of an intermediate reviewing court, I am bound by the decisions of the Supreme Court which, unfortunately, have been looked upon by law enforcement officers as an encouragement, if not an invitation, to the commission of such lawless acts. For that reason only, I concur in the judgment.


SHINN, P. J., concurs.