People v. Martinez

SHINN, P. J.

The appeal in this case presents the question whether a conviction of possession of a narcotic may stand where the accused put the package into his mouth, was choked and wrestled to the ground by the arresting officers until he gave up the package, which was used in evidence to prove the offense. We answer that, in our opinion, such a conviction should not be affirmed.

Rudolph Martinez, the appellant, was charged with a violation of the Health and Safety Code, section 11500 (illegal possession of narcotics), and was convicted, having waived a trial by jury. He appeals from the judgment and from an order denying a motion for new trial. He contends on appeal that the court erred in the admission of certain evidence, viz., a small package of heroin, in that the evidence was obtained in violation of the due process clause of the Fourteenth Amendment of the United States Constitution

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and the California Constitution, article I, section 13, through the use of force applied to his person.

Defendant was in his car, apparently stopped or parked, on November 23, 1953, at about 9 p. m., on Griffin Avenue in Los Angeles, when police officers approached as he was about to get out, and identified themselves as officers through the closed window of the car. According to the testimony of Officer Aguirre, defendant immediately placed a white package in his mouth and began chewing it, whereupon the officers entered the vehicle and Officer Luearelli placed a choke hold on defendant and ordered him to “spit out what he had put into his mouth.” A struggle ensued in which Officer Aguirre joined. He testified “We fell to the ground with him and on the ground next to the curb I observed him spit out a small package which I recovered. ’ ’ Aguirre testified that the choke hold was kept on defendant by Luearelli for a minute or two, “maybe less,” and that all that was recovered was what was taken from defendant’s mouth. All the testimony of the event was given by Officer Aguirre; defendant did not testify.

Following our reluctant affirmance of a judgment of conviction of possession of a narcotic in

People

v.