PEOPLE v. BRACAMONTE

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Rita Noriega BRACAMONTE, Defendant and Appellant.

No. 1586.

Decided: December 20, 1974

Donald H. Glasrud, Fresno, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Rick McClendon, Paul H. Dobson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

By criminal complaint filed in the Municipal Court of the Fresno Judicial District, appellant was charged with possession of heroin in violation of section 11500 (now section 11350) of the Health and Safety Code. After a preliminary hearing in the municipal court, the complaint was dismissed on the ground that the evidence upon which the charge was predicated was the product of an unlawful search and seizure; appellant had swallowed seven balloons, each containing heroin, and the judge ruled that the use of an emetic solution to force appellant to regurgitate the ballons shocked the conscience and offended basic concepts of due process. Then, when appellant was indicted by the Fresno County Grand Jury on the same charge, she moved in the Fresno County Superior Court to suppress the evidence pursuant to section 1538.5 of the Penal Code; her motion was denied. Appellant waived her right to a jury trial, and by stipulation of the parties the cause was submitted to the court for decision on the transcript of the testimony taken at the previous preliminary hearing. The court found appellant guilty of the offense charged and sentenced her to state prison for the term prescribed by law. This appeal followed.

There is no merit to appellant's preliminary contention that the dismissal of the criminal complaint charging her with unlawful possession of heroin after a hearing in the municipal court was a decision on the merits invoking the doctrine of res judicata as a defense to any subsequent prosecution for the same offense. (See Pen.Code, § 1538.5, subd. (j).) An essentially similar contention was rejected by the California Supreme Court, and we are bound by the high court's decision. (People v. Uhlemann, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609.)

We shall consider appellant's arguments on the merits after a brief recitation of the facts.

On March 10, 1972, William G. Miller, a field supervisor for the California Bureau of Narcotic Enforcement, procured a search warrant authorizing the search of appellant and her husband's residence, their vehicles, a 1965 green Rambler and a 1955 Buick, and their persons. The warrant issued by the magistrate was based on Miller's supporting affidavit which stated, inter alia, that agents of the bureau had received information from two confidential informants that the Bracamontes were selling heroin and that their method of operation was to make delivery to the buyers at either Wong's City Market or Pardini's Market in Fresno.

On the morning of March 15, 1972, an agent of the Bureau of Narcotic Enforcement radioed fellow-agents Richard Walley and Delbert Pierce, who were in a state automobile parked near the intersection of Hayes and Ashlan Avenues, and told them that appellant had entered the green Rambler described in the warrant and was driving north on Hayes Avenue in their direction. A few moments later, Walley and Pierce saw the Rambler approach the intersection and come to a stop; Pierce, who was driving the state automobile, maneuvered the vehicle in front of the green Rambler; Walley then exited from the passenger side and headed toward the suspect. Appellant looked toward Walley, put the car in reverse and accelerated the vehicle backwards. At the same time, she reached down with her right hand toward the seat of the automobile, and when the hand reappeared Walley saw her rapidly place two balloons in her mouth and swallow them. As the Rambler moved backwards, Walley saw appellant make two more rapid hand movements toward her lips; appellant appeared to be placing more objects into her mouth.

The agents stopped appellant's car a short distance from the intersection and removed her from the vehicle; she struggled strenuously. Appellant was handcuffed and advised of her constitutional rights and driven to her residence so that the officers could search the house. About 15 or 20 minutes later, appellant was transported to the hospital where Agent Walley showed the doctor in charge the search warrant and told him that appellant had swallowed some balloons: he said that he believed that the balloons contained heroin and that he was afraid that one or more would rupture and injure appellant's health.

At the doctor's direction, two nurses prepared an emetic solution and asked appellant to drink it. Appellant was seated on a table with her hands handcuffed behind her back, and when she refused to drink the liquid the nurses forced her on her back an started to strap her down; a struggle ensued. By themselves, the nurses put a strap across appellant's chest; then Walley held one of appellant's legs as a nurse put a strap across appellant's knees. The nurses inserted a tube down one of appellant's nostrils but she shook her head vigorously and complained that the tube hurt her. The tube was removed and appellant was unstrapped; she sat up and drank the solution from a cup held by a nurse. Appellant regurgitated seven ballons, each of which contained a usable amount of heroin. Appellant was injected with a drug called Compazine to stop the vomiting and was transported to the county jail.

Appellant's first argument is directed against the affidavit in support of the search warrant. She insists that the affidavit did not meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as explained in People v. Hamilton, 71 Cal.2d 176, 179–180, 77 Cal.Rptr. 785, 454 P.2d 681, because it was based primarily on information supplied by confidential informants and did not show that the informants were reliable or that they spoke with personal knowledge. She also insists that the affidavit was defective because it contained stale information.

We are not impressed by this argument. In the affidavit, Agent Miller alleged that he had searched the official records and learned that appellant's husband, Perfecto Bracamonte, had been arrested on five separate occasions for narcotics violations and that he had been convicted and sentenced to state prison on two of the occasions. Miller further alleged: that on March 2, 1972, he and other agents of the Bureau observed a large amount of vehicular traffic going to and from the Bracamonte residence and then observed both appellant and her husband meet known users of heroin at Wong's City Market; that on the same day the agents followed appellant's husband to a location approximately one-half mile from his home and after he left found numerous cut balloons in the area where the suspect had been; that on March 3, 1972, agents saw a known addict at appellant's residence and saw her meet two other known addicts later that day; that on March 6, 1972, Perfecto Bracamonte was seen by agents with a known heroin user and later meet a known addict at Wong's City Market; that on March 7, 1972, agents observed the Bracamontes drive to Wong's City Market in their 1955 Buick and then observed a large amount of foot traffic going to and from the Bracamonte vehicle.

While Agent Miller's affidavit may not have shown that the informants spoke with personal knowledge, it contained ample independent factual data to show that the information was reliable (People v. Superior Court (Johnson), 6 Cal.3d 704, 712, 100 Cal.Rptr. 319, 493 P.2d 1183; People v. Scoma, 71 Cal.2d 332, 338, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Flores, 68 Cal.2d 563, 566, 68 Cal.Rptr. 161, 440 P.2d 233) and to lead a man of ordinary prudence to believe, and conscientiously to entertain, a strong suspicion that the Bracamontes were in the business of selling heroin on a large scale and that the places to be searched contained contraband. (Skelton v. Superior Court, 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485; Frazzini v. Superior Court, 7 Cal.App.3d 1005, 1012–1013, 87 Cal.Rptr. 32.)

Neither are we impressed with appellant's argument that Miller's affidavit contained stale information and that Agents Walley and Pierce had no way of knowing that appellant would have heroin in her possession when the warrant was executed on March 15, 1972. After receiving the information that the Bracamontes were selling heroin, the agents of the bureau placed the suspects under surveillance, and this surveillance was not completed until March 8, 1972. Because the surveillance disclosed that appellant was involved with her husband in a large-scale drug operation, the agents had good cause to believe that the Bracamontes would have heroin in their possession when the warrant was executed about a week later. (Alexander v. Superior Court, 9 Cal.3d 387, 393, 107 Cal.Rptr. 483, 508 P.2d 1131; People v. Sheridan, 2 Cal.App.3d 483, 490–491, 82 Cal.Rptr. 695; People v. Wilson, 268 Cal.App.2d 581, 589, 74 Cal.Rptr. 131.)

Appellant next attacks the seizure of the balloons. She asserts that the use of an emetic solution to force her to regurgitate the seven balloons she had swallowed was shocking to the conscience and transcended constitutional safeguards guaranteed by the Fourteenth Amendment. Appellant relies strongly on the case of Vasquez v. Superior Court, 199 Cal.App.2d 61, 18 Cal.Rptr. 140, for this proposition. There the appellate court issued a writ of prohibition restraining a criminal proceeding for possession of heroin because at the request of the police a doctor administered, hypodermically, apomorphine to the petitioner over his protests, causing him to regurgitate a condom containing the heroin upon which the charge was predicated.

The notion that law enforcement authorities never may use, lawfully, an emetic solution to force a person who has swallowed heroin or other drugs to regurgitate the contraband stems from the historic and often cited decision of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. In that case, decided before the exclusionary rule was declared applicable to the states, police officers unlawfully broke into petitioner's residence without a warrant and saw him put two capsules in his mouth; they jumped upon him and brutally choked him in an attempt to remove the objects forcibly. Then, when the officers' strongarm tactics failed, they transported petitioner to a hospital where, against his will, he was administered an emetic solution to induce him to regurgitate the contraband. Appalled by the unlawful entry followed by police brutality, the Supreme Court said that the conduct of the officers shocked ‘the conscience’ and offended ‘even hardened sensibilities.’ The high court reversed the judgment, using the due process clause as the conduit.

Grasping at the totality of the circumstances involved in the Rochin decision, federal courts consistently have upheld the forcible use of an emetic solution to compel a suspect to regurgitate contraband where the solution was administered at a hospital under the direction of a doctor and where the only force used was that necessary to permit the solution to be delivered into the suspect's stomach. (Blefare v. United States (9th Cir.) 362 F.2d 870, 875–876; Lane v. United States (5th Cir.) 321 F.2d 573, 576, cert. den. 377 U.S. 936, 84 S.Ct. 1340, 12 L.Ed.2d 299; King v. United States (5th Cir.) 258 F.2d 754, 756, cert. den. 359 U.S. 939, 79 S.Ct. 652, 3 L.Ed.2d 639.) The federal courts also have upheld rectal probes and similar indignities against the human body when performed by a doctor with a minimal amount of force. (Rivas v. United States (9th Cir.) 368 F.2d 703, 710–712, cert. den. 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875; Denton v. United States (9th Cir.) 310 F.2d 129, 132–133; Blackford v. United States (9th Cir.) 247 F.2d 745, 750–752, cert. den. 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586.)

In Blefare v. United States, supra, 362 F.2d 870, the defendant, who was suspected of carrying heroin in his stomach, refused to drink a saline solution to induce vomiting. Two federal agents held his arms, a third held his head while the doctor inserted a soft polyethylene tube through defendant's nose, down his throat and into his stomach; the fluid was introduced into the stomach through the tube and caused the defendant to vomit, expelling two packets of heroin. The court upheld the search because there was no evidence of brutality. As to the Rochin opinion, the Blefare court observed:

‘The opinion demonstrates that it was the entire sequence of events that shocked the conscience. It was the illegal invasion of the privacy of Rochin's home and the struggle to open his mouth and remove what was there that started the chain of events.’ (Supra, 362 F.2d at p. 875.)

In Blackford v. United States, supra, 247 F.2d 745, a rectal probe by a physician using medically approved procedures was upheld even though the defendant refused to cooperate and it was necessary to use some force in the examination.

In this state the law is less certain. In People v. Woods, 139 Cal.App.2d 515, 293 P.2d 901, two police officers held defendant's arms while a doctor, using a rubber glove, inserted his finger into the defendant's rectum under his ‘protest,’ and without the use of force and with very little pain abstracted the hidden object. After distinguishing Rochin, the California appellate court upheld the procedure. (See People v. Haeussler, 41 Cal.2d 252, 259–260, 260 P.2d 8.) Also, in People v. Jones, 20 Cal.App.3d 201, 97 Cal.Rptr. 492, the appellate court approved a stomach lavage performed by a doctor at the request of the police because there was evidence to show that defendant had swallowed a lethal dosage of barbiturates and was in danger of death. But, in Vasquez v. Superior Court, supra, 199 Cal.App.2d 61, 18 Cal.Rptr. 140, where the petitioner swallowed drugs in the presence of the police officers, the court held that the use of an emetic solution to force him to regurgiate the contraband shocked the conscience.

We subscribe to the proposition that the forcible use of an emetic solution to compel a suspect to regurgitate contraband he has swallowed is not per se forbidden by the Fourteenth Amendment to the United States Constitution; and whether such a drastic procedure exceeds the bounds of propriety and offends constitutional concepts of due process depends upon the facts of each case. Therefore, to the extent that the Vasquez decision purports to expound the opposite viewpoint, we decline to follow it.

Applying this principle to the facts of the instant case, it is clear to us that appellant's constitutional rights were not violated.

The agents had good cause to believe that appellant was a purveyor of heroin on a large scale and that she had the drug in her possession when she was taken into custody.

Agent Walley, who asked the doctor to administer the emetic solution, did not believe that appellant had swallowed contraband merely because no heroin was found in her possession; he saw appellant swallow two balloons and observed appellant make two more rapid movements towards her mouth. It is common knowledge that heroin purveyors carry the drug in balloons or condoms so that they can be swallowed, readily, if there is danger of apprehension. (See People v. Jones, supra, 20 Cal.App.3d 201, 206, 97 Cal.Rptr. 492.)

Appellant was not manhandled or mistreated by the state agents. She was taken to the hospital where the emetic solution was prepared under the direction of a doctor; when appellant refused to drink the solution, she was strapped to the table by two nurses with a minimum amount of help from Agent Walley; although a tube was inserted in appellant's nose, a pathologist testified that the solution given to her commonly was prescribed as a household emetic for children, that it was a usual practice to administer the fluid through a soft tube inserted in the nasal passage and that while the procedure could irritate some blood vessels in the nose and cause some bleeding, it was very safe.1 The pathologist also testified that from a medical standpoint, it was advisable to remove the balloons from appellant's stomach as soon as possible because she had swallowed more than one and there was a serious danger of blockage in the intestinal tract; the doctor explained that if a balloon opened, it would cause death and that there was the ever present danger, though slight, of seepage.

Lastly, Agent Walley's statement to the doctor at the hospital indicates that the agent believed that appellant's life was in danger when he asked him to administer the emetic solution; he told the doctor that appellant had swallowed some balloons, that the balloons contained heroin and that he was afraid that one or more would rupture and endanger her life.

Appellant argues that Walley was not concerned with appellant's health when he asked the doctor to administer the emetic solution because appellant was taken to her home and kept for 20 minutes before she was transported to the hospital. She maintains that in any event, the use of an emetic to force her to regurgitate the balloons she swallowed exceeded the scope of the search warrant. Appellant has pointed to a conflict in the evidence, and such conflicts must be resolved in favor of the trial court's decision. The use of the emetic was precipitated by appellant's conduct in attempting to dispose of the contraband she swallowed in Agent Walley's presence as he lawfully was trying to serve the warrant.

Appellant also argues that the federal decisions involve border searches and are not authoritative; she states that border searches are governed by special rules only applicable thereto. As the court said in People v. Jones, supra, 20 Cal.App.3d 201, 208, 97 Cal.Rptr. 492, 496, the only reason that ‘. . . border searches are different from other kinds of searches is that probable cause is not required, . . .’ In this case, there was no question of probable cause.

In arriving at our decision in this case, we have striven, diligently, to balance the right of society to effective police protection against the criminal element with sacrosanct concepts of human dignity. We are apprehensive, naturally, of any police tactic which is not consonant with the free state the Constitution envisions. On the other hand, a government founded on law cannot survive without reasonably effective law enforcement. Heroin is an insiduously dangerous narcotic, and statistics show that illegal traffic in this and other drugs is a major contributor to crime and juvenile delinquency. It would shock the conscience to set a precedent which would make it possible for purveyors of heroin and other dangerous drugs to flaunt the law and escape punishment by swallowing the contraband in the presence of police officers while they are attempting to execute a search warrant, or otherwise lawfully performing their duties, even though the object swallowed is readily recoverable through humane and safe medical procedures. “If we were mechanically to invoke Massiah [Rochin] to reverse this conviction, we would transform a meaningful expression of concern for the rights of the individual to a meaningless mechanism for the obstruction of justice.” (Blefare v. United States, supra, 362 F.2d 870, 876.) We refuse to do so.

While the dissent expresses some concern as to the safeness of the medical procedure used in this case, the fact remains a qualified pathologist testified that the procedure was safe and commonly was used on small children; he explained the procedure was ‘. . . too well accepted as best practice to even be questioned.’

The real thrust of the dissenting opinion is that the Rochin case proscribes the use of any force or the threat of force to compel a person to take an emetic in order to induce him to regurgitate contraband. As we see it, such a rule would create an anomaly in the law; it would make it possible for an experienced heroin purveyor who is about to be apprehended to defy the law and the judicial process through the simple expediency of swallowing the contraband in the presence of a police officer and then protest or offer some resistance to the use of an emetic solution.

The necessity to use force in the performance of a police duty is always abhorrent in a free society. But the right to use some force under proper circumstances is an essential ingredient to law enforcement; to hold otherwise would invite anarchy. For example, the dissent does not quarrel with the right of the police to use reasonable force to make a lawful arrest or to search a dwelling or a person pursuant to the authority of a search warrant; it is the duty of every citizen to submit to lawful police authority and to the judicial process. Yet, the dissent condemns the use of any force in this kind of case. Is it not unlawful for a citizen to destroy contraband in the presence of a police officer who is attempting to perform his duty in executing a search warrant? May a person blatantly and wantonly swallow contraband in the presence of an officer and claim ‘sanctuary’ despite the pronouncements that the mouth and other body cavities are not ‘sacred’ orifices? (People v. Jones, supra, 20 Cal.App.3d 201, 206, 97 Cal.Rptr. 492; People v. Bass, 214 Cal.App.2d 742, 746, 29 Cal.Rptr. 778.)

The correct approach in a case of this nature is to inquire, not whether any force was used, but whether the use of force was justified and, if so, whether the amount of force used was reasonable under all of the circumstances. Under this approach, as is true in any case where some police force is permissible, the police conduct can be scrutinized by an impartial and independent tribunal, and the right of society to protect itself against vicious drug traffic is balanced with the right of the individual to be free from police harassment and brutality. In other words, once accepting that the police, under proper circumstances, can require a person to submit to the use of an emetic, it becomes the duty of the courts to ascertain if the force used by the officers was ‘aggressive beyond all need’; if so, the evidence seized should be suppressed. (People v. Kraft, 3 Cal.App.3d 890, 899, 84 Cal.Rptr. 280.)

Our colleague is concerned with the constitutional rights of an innocent person who may have swallowed only a harmless medicament such as aspirin; the dissent would outlaw the use of any force in compelling a person who was suspected of swallowing contraband because there is an alternative. Our colleague suggests that ‘[a]fter her arrest [appellant] easily could have been transported to jail, placed in an isolation cell and nature ‘allowed to take its course.”

We are not concerned here with the rights of an innocent person who may have swallowed aspirin. Agent Walley had almost irrefutable proof that appellant and her husband were in the business of selling heroin on a large scale, and he saw her swallow at least two balloons as he approached her vehicle to execute the search warrant. Appellant was under a duty to submit to the authority of the search warrant, and because she attempted to destroy the evidence in the presence of an officer, she invited the search that followed as an incident to a valid arrest; since the search was conducted at a hospital in a medically approved and safe manner, appellant's constitutional rights were not violated.

The alternative suggested by the dissent seems more degrading and possibly even more dangerous than the use of an emetic administered at a hospital under the direction of a qualified doctor. It would have been necessary to put appellant in an isolation cell under constant police surveillance until she defecated; the pathologist testified that a person could withhold a bowel movement in excess of 48 hours. After appellant had defecated, it would have been necessary for the police to take embarrassing steps to prevent her from destroying, or again disposing of, the contraband. Even if appellant had been placed in an isolation cell and kept under surveillance until she defecated, there would have been no assurance that the balloons would not have become entangled in her intestinal tract. To the innocent person, the alternative offered by the dissent is no choice at all.

The United States Supreme Court decision of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, upon which the dissent relies, is not in point. In that case the court was not concerned with the right of police officers to recover contraband deliberately swallowed in their presence while they were attempting to execute a lawful search warrant. Rather, the court was concerned with the right of the police to gather evidence against the defendant to prove that he was intoxicated by taking a blood sample without his consent. It was in this context that the court said that ‘[t]he integrity of an individual's person is a cherished value of our society . . .’ and that only ‘minor intrusions [are permitted] into an individual's body . . ..'2 (Supra, 384 U.S. at p. 772, 86 S.Ct. at p. 1836.)

It is significant that the Schmerber court also stated:

‘The interests in human dignity and privacy which the Fourth Amendment protects forbid any [intrusions beyond the body's surface] on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.’ (Emphasis added.) (Supra, 384 U.S. at pp. 769–770, 86 S.Ct. at p. 1836.)

The case of People v. Kraft, supra, 3 Cal.App.3d 890, 84 Cal.Rptr. 280, likewise involves the taking of a blood sample to prove that the defendant was intoxicated. The court stated:

“The withdrawal of a blood sample in a medically approved manner, although without the subject's consent, does not deprive him of his Fifth Amendment privilege against self-incrimination . . .; when conducted under nonbrutal circumstances, does not violate the Fourteenth Amendment's guarantee of due process of law; constitutes a search of the person but, when incident to a lawful arrest and performed in a reasonable manner, does not violate the Fourth Amendment's proscription against unreasonable searches.” (Supra, 3 Cal.App.3d at p. 899, 84 Cal.Rptr. at p. 285.)

To summarize, we do not purport to adopt a uniform formula to be applied in all cases where the police resort to bodily invasions through accepted medical practices to gather or recover incriminating evidence against a defendant. In holding that a suspect may be compelled, lawfully, to take an emetic to regurgitate contraband, we limit our opinion to a case such as this, where (1) the police had good cause to believe that the suspect was engaged in illegal narcotic activities, were in the process of executing a search warrant and had almost irrefutable proof that the suspect had swallowed the contraband, and (2) the force used was only to the extent necessary to compel the suspect to swallow the emetic and took place in a hospital.

Admittedly, the California Supreme Court denied a petition for a hearing in Vasquez v. Superior Court, supra, 199 Cal.App.2d 61, 67, 18 Cal.Rptr. 140. The denial of a hearing by the Supreme Court in that case did not amount to an approval of the proposition of law set forth in the appellate court's opinion. (DiGenova v. State Board of Education, 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865; see also People v. Triggs, 8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232; People v. Haeussler, supra, 41 Cal.2d 252, 259–260, 260 P.2d 8.) Of greater significance is the fact that the United States Supreme Court denied certiorari in the federal cases which adhere to the views expressed herein and which are criticized in the dissent.

The judgment is affirmed.

I dissent.

The majority's revulsion toward and desire to bring to justice those who use and deal in heroin, which I might add is shared by all thoughtful persons, does not justify crossing the outer limits of permissible police conduct as proscribed by the high court of our land. In my view, the use of brute force on appellant by the nurses and Agent Walley to force appellant to drink the emetic solution so as to regurgitate the contents of her stomach comes squarely within the proscription of Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.

The exact sequence of events bears restating: After Mrs. Bracamonte was observed placing objects in her mouth, she was arrested and transported to her residence where she remained in the custody of the narcotics officers for approximately 15 to 20 minutes while her home was searched. Thereafter, she was transported by the officers to Valley Medical Center for the purpose of having her stomach pumped.

At the hospital, Agent Walley showed the search warrant to Dr. Steele, who was the attending physician of the emergency section, and told the doctor that the warrant authorized a search of appellant's person and requested that appellant's stomach be pumped.1 Walley further stated that appellant had been seen swallowing what appeared to him to be balloons of heroin and that he was fearful of the possibility that if the balloons remained within appellant's body they might rupture and injure her health. Dr. Steele suggested that an emetic, or vomitive agent known as ‘syrup of ipecac,’ be administered orally rather than by the use of a stomach pump. At the request of the officers, and pursuant to Dr. Steele's orders, two nurses attempted to administer a cup of the emetic solution to appellant. Appellant verbally refused to drink the liquid. At this time appellant, whose hands were handcuffed behind her back, was forced to her back on a table, and two nurses started to strap her down. Appellant resisted strenuously and a struggle ensued. The nurses, with the assistance of Agent Walley, overcame appellant's physical resistance by holding her down and tying her to the table with straps across her chest and knees and with her handcuffed hands underneath her. Appellant continued struggling and kicking.

Unable to force appellant to drink the emetic agent from the cup, the nurses attempted to administer the liquid into appellant's stomach through a rubber tube inserted through appellant's nose and down her esophagus. Appellant continued to protest, both verbally and physically. She shook her head back and forth, causing the tube to move about and preventing the nurses from administering the liquid through the tube. Appellant complained of the pain caused by the tube. Finally, after four or five minutes of unsuccessful attempts to administer the liquid into appellant's stomach through the tube, appellant said that the tube was ‘too painful’ and that she would submit to drinking the liquid.

A few minutes after drinking the emetic solution, appellant regurgitated the balloons which proved to contain heroin. She continued vomiting for seven to ten minutes and remained nauseous for another fifteen to twenty minutes after she ceased vomiting. Appellant vomited again while being transported to the Fresno County Jail.

It was stipulated by counsel that if Dr. Steele was called to testify he would state that he would not have ordered the administration of the emetic agent or otherwise have attempted to remove the items from appellant's stomach except for the fact that the narcotic agents possessed the search warrant which they told him authorized the removal of these items from appellant's stomach. It was further stipulated that Dr. Steele would testify that he personally had no previous experience with patients who had swallowed balloons believed to contain heroin but, as a medical opinion, he would assume that the balloons would pass through the body safely;2 further, the doctor would testify that while such items should be ‘brought up’ as a medical precaution, absent a search warrant, he would not force a patient to regurgitate over her objections. (Dr. Steele's testimony in this regard is consistent with other medical opinion that intubation (stomach pumping) is dangerous because of the possibility of puncturing the esophagus. (See Vasquez v. Superior Court, supra, 199 Cal.App.2d at 63, 18 Cal.Rptr. 140.)) At no time did Dr. Steele state that the procedure was necessary to protect the life or health of appellant.

I see no difference in the forceful procedure used against appellant following the officer's misrepresentation as to the authority of the search warrant from the course of illegal conduct and forced vomiting condemned in Rochin. The end sought to be achieved is the same; only the nature and timing of the force used are different. Rochin repeatedly has been applied to outlaw various forms of physical compulsion to prevent narcotic offenders who are caught red-handed from swallowing the drug. Thus, in People v. Martinez, 130 Cal.App.2d 54, 278 P.2d 26, the officer placed a choke hold on defendant, forcing him to spit out the package. In reversing the conviction, the court observed that the question ‘is not how hard an officer may choke a suspect to obtain evidence but whether he may choke him at all’ and declared that Rochin ‘should serve as a warning to all those who are tempted to use brutal force for the extraction of evidence from the person of an accused . . ..’ (130 Cal.App.2d at pp. 56, 58, 278 P.2d at p. 28; see also People v. Erickson, 210 Cal.App.2d 177, 181–182, 26 Cal.Rptr. 546; Vasquez v. Superior Court, supra, 199 Cal.App.2d 61, 66, 18 Cal.Rptr. 140; People v. Sevilla, 192 Cal.App.2d 570, 574–575, 13 Cal.Rptr. 714; People v. Brinson, 191 Cal.App.2d 253, 256, 12 Cal.Rptr. 625.)

In Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the court upheld the taking of a blood sample in a medically acceptable manner from the defendant who was in an intoxicated condition; the minor intrusion of the body surface was justified because of the emergency situation created by the fact that alcohol would soon disappear from the blood. The court nonetheless warned:

‘The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid . . . minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.’ (384 U.S. at p. 772, 86 S.Ct. at p. 1836.)

In contrast to the blood-alcohol situation in Schmerber, in the case before us it is not shown that the forced vomiting was the only means available to the officers to prove that appellant had swallowed contraband. After her arrest she easily could have been transported to jail, placed in an isolation cell and nature ‘allowed to take its course.’ (See Vasquez v. Superior Court, supra, 199 Cal.App.2d 61, 63, 18 Cal.Rptr. 140.) Moreover, forceful intubation and consequent regurgitation of the stomach contents is more than a ‘minor intrusion’ of the bodily surface, such as the taking of a blood sample. At the very least, it constitutes a major intrusion into the body and causes a violent reaction, both physically and psychologically.

The majority opinion flies directly in the face of precise California authority to the contrary. In Vasquez v. Superior Court, supra, 199 Cal.App.2d 61, 18 Cal.Rptr. 140, the defendant told police officers that he had swallowed a rubber condom containing heroin. He was taken to a hospital where he verbally and physically resisted the giving of a hypodermic injection of a vomiting agent. The defendant kept moving his arm to prevent the doctor from inserting the hypodermic needle. It was necessary for two police officers to assist the doctor by holding the defendant's arm so that the injection could be administered. The injection caused nausea and vomiting, which in turn produced the condom containing the contraband. The defendant became extremely weak after regurgitating the contraband and continued to have what was described as ‘the dry heaves.’

Despite the absence of a forcible entry to living quarters and the choking by police as was present in Rochin, the Vasquez court nevertheless held ‘the conduct of the police and the medical doctor in extracting the narcotics from petitioner's stomach . . . was brutal and shocking; it offends one's sense of justice and should not be tolerated.’ (199 Cal.App.2d 61 at p. 66, 18 Cal.Rptr. 140 at p. 144.) It is significant that in Vasquez the People's petition for a hearing by the Supreme Court was denied. While a denial of a hearing does not necessarily express approval of the propositions of law set forth in an opinion by the Court of Appeal, it does indicate an approval of the conclusion reached therein. (See DiGenova v. State Board of Education, 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 367 P.2d 865; Cole v. Rush, 45 Cal.2d 345, 351, fn. 3, 289 P.2d 450.) Until such time as our Supreme Court disapproves the conclusion reached in Vasquez, we should follow its holding.

A recent application of the Rochin and Vasquez principles is found in People v. Kraft, 3 Cal.App.3d 890, 84 Cal.Rptr. 280. There, the defendant physically resisted the taking of a blood sample from his arm by a doctor and was held to the floor by two law enforcement officers while the sample was extracted. In reversing defendant's conviction for drunk driving, it was held that the force used in extracting the sample from the defendant came within the condemnation of Rochin. Again, a petition for hearing was denied by our Supreme Court; again we should follow the Kraft holding.

The use of force cannot be justified by the fact that appellant resisted. It is common knowledge that many people are fearful of choking on their own vomit; this is particularly true of persons suffering from an asthmatic or heart condition. Moreover, an innocent person undoubtedly would have as great a tendency to resist the extraction of his stomach contents by forced vomiting as would a guilty person. The fallacy in the majority view is the failure to recognize that once the use of force is condoned as an instrument of social policy for the purpose of gathering evidence, there can be no end to the amount of force permitted. If the police are justified in using force, they may use whatever force is needed to overcome whatever resistance is offered by the suspect. It does not tax one's imagination to visualize the violent struggle and probability of serious injury to those involved that would ensue between law enforcement officers (and the medical personnel acting as their agents), who in good faith believed a suspect had swallowed contraband, and a hard-headed suspect who had placed his hands innocently to his mouth for the purpose of ingesting a few aspirin tablets.

Nor can the search of appellant's stomach be justified on the basis that the suspected balloons of heroin would be dangerous to appellant's health. First, the idea that appellant's health would be endangered was Agent Walley's and not Dr. Steele's. It was stipulated that Dr. Steele would not have authorized the procedures used upon appellant absent the command of the search warrant. It was his medical opinion that the balloon would pass through appellant's body safely. Second, it is clear that the officers were not really concerned about appellant's health inasmuch as she was taken to her home and kept there for about 20 minutes while they searched the premises before taking her to the hospital. A reasonable inference easily may be drawn from this sequence of events that, if heroin had been found either at appellant's home or on her person or in her car, she would not have been taken to the hospital to have her stomach pumped.

People v. Woods, 139 Cal.App.2d 515, 293 P.2d 901, cited by the majority, is clearly distinguishable in that the search was of the defendant's rectum without the use of force and with very little pain; it was only over his verbal protest. People v. Jones, 20 Cal.App.3d 201, 97 Cal.Rptr. 492, is similarly distinguishable. There, the court approved a stomach lavage performed by a doctor at the request of the police because there was clear evidence that defendant had swallowed a lethal dosage of barbiturates and was in danger of death. The court state: ‘. . . the medical procedure followed in this case was necessary to save appellant's life, or at least that the doctor reasonably so believed.’ (Emphasis added; 20 Cal.App.3d at 210, 97 Cal.Rptr. at 497.)

Blefare v. United States (9th Cir.) 362 F.2d 870, and the other federal cases cited in the majority opinion, all involve ‘border searches' of persons who just had come from Mexico into the United States. The historical justification for permitting the federal officers to use such extreme measures supposedly is to prevent the smuggling of contraband into this country from Mexico. Apart from the fact that these intermediate federal appellate cases are not controlling on our California courts, they are bad law insofar as establishing a general standard of permissible police conduct toward all of our citizens. It would be shocking indeed to believe that an innocent person, male or female, could be subjected to the indignity of a rectal or vaginal search simply because a narcotic agent ‘suspected’ him or her of concealing narcotics. The Draconian rule of these federal decisions should not be extended beyond border searches; our citizens are entitled to greater protection.

The fundamental issue which transcends the particular case before us is the right of a citizen in a free society, who is not himself engaged in a violent activity which may cause harm to others, to be immune from forceful police methods which invade his personal dignity and which may subject him to serious injury. Assuming the absence of a reasonable alternative to the use of force to extract evidence from appellant's stomach which, as previously noted, has not been shown, the government's right to convict on the basis of the evidence must yield to appellant's right to be free from force. Only by such a standard can our citizens be protected from overzealous police tactics.

I would exclude the evidence of heroin obtained by the forceful extraction of the contents of appellant's stomach.

FOOTNOTES

1.  As we have noted, appellant shook her head vigorously as the tube was being inserted and complained that it hurt her. The pain which appellant may have suffered was caused by her own resistance, and there is no evidence she was injured. Actual resistance on the part of the accused is not enough to create an illegal search and seizure. (Vasquez v. Superior Court, 199 Cal.App.2d 61, 65, 18 Cal.Rptr. 140; People v. Woods, 139 Cal.App.2d 515, 517, 526, 293 P.2d 901.)

2.  Despite the dissent's vivid description of what happened at the hospital, the fact remains that appellant was strapped to a table by two nurses with only a minimal amount of help by Agent Walley; it is doubtful that the insertion of a soft polyethylene tube in the suspect's nose for the purpose of injecting an emetic solution into the stomach necessarily falls in the category of a major intrusion. In this case, if appellant suffered any pain at all, it was caused by her own violent struggles.

1.  This appears to have been a misrepresentation by Officer Walley. The warrant had been issued five days prior to the search; it authorized the search of appellant's residence, automobiles and the ‘persons' of appellant and her husband. Obviously, the warrant was not intended to authorize an intrusion beyond the body surface in effecting a search. Walley, as a senior agent of the Bureau of Narcotics, undoubtedly understood this fact, inasmuch as he sought to justify the stomach pumping on the basis of a ‘possibility’ of danger to appellant's health. It is clear that the only legal justification for the search of appellant's stomach was probable cause to believe that she had swallowed contraband.

2.  This testimony is in accord with that given in Vasquez v. Superior Court, 199 Cal.App.2d 61 at page 63, 18 Cal.Rptr. 140, to the effect that rubber objects such as a condom containing heroin and swallowed by a defendant may pass competely through the digestive tract by the ordinary processes of nature without causing any ill effects. The rubber container would effectively prevent the contents from being absorbed into the system. Also, Dr. Nelson, the pathologist, testified that there was a high statistical probability that the balloons would ‘pass through’ without any difficulty.

GARGANO, Associate Justice.

GEO. A. BROWN, P. J., concurs.