HANSON, J. I respectfully dissent from those portions of my colleagues’ opinions which address defendant Allen’s appeal and which conclude that the judgment of conviction must be reversed on the ground that the trial court improperly denied defendant’s motion made pursuant to Penal Code section 1538.5 (hereinafter section 1538.5) to suppress as evidence the four balloons of heroin which he spit out of his mouth.1 I would affirm the judgment of conviction.
Additionally addressing the People’s appeal since the trial court did not sentence defendant to state prison but granted him probation, I would remand the matter to the trial court for resentencing in compliance with the mandatory provisions of Penal Code section 1203 (hereinafter section 1203) which require, under the circumstances present here, that the sentencing court affirmatively find and state on the record the “specific circumstances” which render the case so “unusual” that the interests of justice would best be served by granting defendant probation.
Defendant’s Appeal (The Motion to Suppress): I would affirm the judgment of conviction for the following reasons:
First: The cases cited by my colleagues as controlling precedent to support their conclusions that the trial court erred in denying defendant’s section 1538.5 motion to suppress evidence are all factually distinguishable and do not compel such a result under the circumstances of the instant case. The cases cited all involved either a choking or involuntary [957]police intrusion into the orifices of the human body (forcible use of a stomach pump, emetic solution to force vomiting, enema or prostrate massage) to recover the contraband or evidence. In the case at bench there was no choking and no physical intrusion of defendant’s body surface by the police.
The conduct of the officers in the instant case in no way descends to the level of “indignities” present in the cases relied on in my colleagues’ opinions. “It is clear from a reading of these decisions,. . . that the courts were there concerned with condemning the excessive force exerted upon the individual rather than making the ‘mouth’ a sacred orifice into which contraband may be placed and thereafter disposed of in leisurely fashion. Although [I] agree that physical evidence, like verbal confessions, may not be ‘tortured’ from the lips of the accused, it does not follow that merely because a suspect has placed a substance behind his lips, he necessarily is entitled to cry ‘sanctuary’ when the officer of the law, under appropriate circumstances [as here], directs him to surrender it.” (People v. Bass (1963) 214 Cal.App.2d 742, 746 [29 Cal.Rptr. 778].)
Second: “In the final analysis the test here is, as it always is, whether under the facts and circumstances and on the total atmosphere of the case the officer’s conduct was reasonable (People v. Ingle, 53 Cal.2d 407, 412 [. . .]) when tested against the standard of a reasonable officer who is experienced in the ‘devious and cunning devices used by narcotics offenders to conceal their crimes.’ (People v. Williams, 196 Cal.App.2d 726, 728 [. . .].)” (People v. Trevino (1977) 72 Cal.App.3d 686, 690 [140 Cal.Rptr. 243].)
“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. [Citations.] The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings—whether express or implied—must be upheld if supported by substantial evidence. [Citations.]” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal.Rptr. 617, 530 P.2d 585].)
In the case at bench the record reflects that the police officers clearly had probable cause to believe that defendant was at the location to make a sale of heroin and that he (Blue), as is a common practice among heroin dealers, was carrying his lethal merchandise in balloons hidden in [958]his mouth for delivery at the time of the sale or to swallow in the case of imminent apprehension by the police. Since the officers were about to make a felony arrest of an unknown and possibly armed suspect, they were certainly authorized, in order to insure their own safety because of the hazardous nature of the activity, to have their pistols drawn (none of which were cocked) and to point them at defendant’s head in order to dissuade him from thinking he had time to pull a gun and shoot them in an effort to escape arrest.
Therefore, the only factor superimposed on the above scene upon which my colleagues base their conclusion of “unreasonable” police activity requiring reversal under the exclusionary rule is merely the simultaneous utterance by the police of the following words in street jargon: “Spit it out, you mother, or I’ll blow your F-ing brains out.” The obvious purpose of that lexicon was for the shock reaction effect in hopes defendant would be startled into the reflex response of spitting out the balloons of heroin. It worked. He did. It was stipulated the 4 balloons contained 3.6 grams of heroin and 2 expert narcotic officers were of the opinion they were possessed for sale which is borne out by the facts.
I am unaware of any statutory or case law that goes so far as to control the verbal actual language of police officers under such exigent circumstances. As a practical matter police officers in conducting their war against drug dealers and pushers in trying to bring the rampant narcotic problems under control simply cannot reasonably be expected to always use the Queen’s English or adhere to the Marquis of Queensberry rules and still perform their official duties under such circumstances. Having concluded that under the circumstances the officers were certainly authorized to have their pistols drawn and pointed at defendant, would their conduct be permissible if an officer had only said: “Spit it out, you mother?” Would the conduct be permissible if he only said: “Spit it out.” It is certainly doubtful defendant would have spit up the balloons of heroin if the officers had merely pointed their fingers at him and said: “Boo.” In fact defendant testified he would have “probably” swallowed the balloons of heroin.
Here, the trial court impliedly found that the strong words used by the officers in ordering defendant to empty his mouth were in the form of a “ruse” or “ploy” to shock defendant into spitting out the balloons of heroin and were not unreasonable under all the circumstances. I agree. The fact that there were at least three officer witnesses in the immediate presence of defendant would clearly indicate they had no intention [959]whatsoever of firing their weapons if defendant did not spit out the balloons. The testimony that Officer Dick Lloyd Elliott (the one whom defendant said used the words) commented later, “Hey, I can’t believe this. The guy just spit it right out when I said spit it out. It just came right out,” constituted substantial evidence to support the trial court’s implied finding that the police officers merely used the words as a “ruse” or “ploy” to shock defendant into spitting out the four balloons of heroin and did not constitute impermissible police conduct.
Third: Even by analogy applying the stringent balancing test for determining whether a search warrant should be authorized for an actual bodily intrusion as described in People v. Scott (1978) 21 Cal.3d 284 [145 Cal.Rptr. 876, 578 P.2d 123] (distinguished from the instant case in that here no search warrant was sought and there was no bodily intrusion), the scales of justice are tipped heavily against a finding of impermissible police activity in the instant case.
In Scott the balancing test to determine whether the character of the search is appropriate lists the following factors to be considered: the reliability of the method to be employed; the seriousness of the underlying criminal offense and society’s consequent interest in obtaining a conviction; the strength of law enforcement suspicions that evidence of crime will be revealed; the importance of the evidence sought; and the possibility that the evidence may be recovered by alternative means less violative of Fourth Amendment freedoms. The foregoing considerations are, in turn, to be balanced against the severity of the proposed intrusion.
Applying the above standards to the instant case, here the method used was a “ruse” by the use of words which did not involve a physical bodily intrusion.
The seriousness of the underlying criminal offense is great in view of the impact of the mushrooming narcotic problem on society. “All reports indicate drug abuse in the United States continues on the upswing, running virtually out of control and spreading to all levels of society. The cost of drug abuse is staggering,. . . More than 5,000 Americans die each year from drug overdose. The total cost to Americans is up to $17 billion a year. A large percentage of the absence of Americans’ personal safety on the streets, in their businesses, and homes is directly attributed to the drug problem. In fact, it is estimated that as much as one-half of all robberies, muggings and burglaries are committed by drug addicts to support their habits. . . .” (People v. Holly, supra, 62 Cal.App.3d 797, 809 (dis. opn. of Hanson, J.), fn. omitted.)
[960]The officers’ suspicions that defendant was carrying the balloons of heroin in his mouth were justified by the fact that defendant in fact spat them out. Recovery of the balloons of heroin was important in that in narcotics cases (possession, possession for sale and sale) the recovery of the actual contraband is often essential for a conviction.
In balancing the alternative means which are less violative of Fourth Amendment freedoms we should also consider the constitutional rights of the citizens to be free of the by-product of the narcotic traffickers by way of the robberies, muggings and burglaries committed by drug addicts to support their habits and the rights of law enforcement officers in the performance of their official duties.
In my opinion the tactics used in the present case to startle defendant into spitting out the balloons of heroin were much more preferable and reasonable than the alternative alluded to by my colleagues (citing People v. Bracamonte (1975) 15 Cal.3d 394 [124 Cal.Rptr. 528, 540 P.2d 624]), namely to allow defendant to swallow the balloons, transport him to jail, place him in isolation until he defecates and then recover the balloons of heroin from his excretion. In the first place there is the danger and distinct possibility that defendant’s life could be in jeopardy from an overdose by the balloons rupturing from stomach acids. Secondly, in my view the obscene and ridiculous indignity imposed on law enforcement officers by requiring them in performance of their official duties to paw through a dope pusher’s feces to retrieve evidence far outweighs any loss of “dignity and privacy” which may have been experienced by defendant by reason of the means employed in the instant case.
Here, also the severity of the intrusion was minimal consisting only of the shock reaction of words as opposed to methods involving actual bodily intrusion. I further conclude that no other constitutional rights of defendant were violated including due process.
The People’s Appeal (Section 1203): I would remand this case to the trial court for resentencing to comply with the mandatory provisions of section 1203.
Section 1203 in pertinent part provides that the superior court has the authority to grant probation, upon the application of a convicted felon, where the person convicted is eligible for probation, and where “the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be subserved by [961]granting probation to the person.” (§ 1203, subd. (a).) It further provides in subdivision (d) that “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted” (italics added) to anyone who has been convicted twice previously of a felony or to anyone who has been convicted once previously of a felony wherein “[h]e used or attempted to use a deadly weapon upon a human being in connection with the perpetration of such previous crime” (subd. (d)(6)(h)) or who “willfully inflicted great bodily injury or torture in the perpetration of such previous crime.” (Subd. (d)(6)(iii).) Finally, it provides in subdivision (e) that when probation is granted to a person who comes within one or more of the provisions of section 1203, subdivision (d), listed above “the court shall specify the circumstances indicating that the interests of justice would best be served by such a disposition.” (Italics added.)
The word “shall” when used in the context of section 1203 has been held to indicate a mandatory directive and the court has no discretion and must comply with the requirements of the statute. (People v. Municipal Court [Lozano] (1956) 145 Cal.App.2d 767, 775-778 [303 P.2d 375]; Parks v. Superior Court (1971) 19 Cal.App.3d 188, 191 [96 Cal.Rptr. 645]; People v. Johnson (1955) 134 Cal.App.2d 140, 144 [285 P.2d 74].)
Here, defendant Allen was found guilty of possession for sale of heroin, and two alleged prior felony convictions were found true by the court and not disturbed at the time of the sentencing hearing. Thus, defendant falls within the provisions of subdivision (d)(4) of section 1203 requiring that probation not be granted except in an “unusual” case. In addition, the record shows defendant also falls within the provisions of subdivisions (d)(6)(ii) and (d)(6)(iii) because in the earlier prior conviction he used a deadly weapon in connection with an assault which inflicted great bodily injury upon the victim. Therefore, the record on appeal shows that defendant Allen was not entitled to a grant of probation absent a specific finding by the court that the case was “unusual” and a statement of the reasons therefor which the court did not do.
In the case at bench the probation report listed defendant’s prior criminal activity and recommended probation be denied and the prosecuting attorney brought the provisions of section 1203 to the trial court’s attention. The trial court suspended proceedings and placed defendant on probation for five years on condition, among others, that he [962]spend the first year in local custody without specifying on the record the circumstances for such a grant of probation as required by section 1203.
The record on appeal, in my view, does not disclose circumstances to justify the granting of probation and the appropriate sentence would appear to be state prison for the term prescribed by law.
However, I would remand the case to the trial court for resentencing for the purpose of allowing the court to state the specifications required by section 1203 if it can do so.
A petition for a rehearing was denied December 21, 1978, and the petition of the plaintiff and appellant for a hearing by the Supreme Court was denied January 24, 1979.
“Hans W. Mattick of the Center for Research in Criminal Justice in Chicago somewhat indelicately but nevertheless accurately likened the criminal justice system to a vacuum cleaner: the police—the mouth and suction power; the courts—the hose; and the prisons—the bag.” (People v. Holly (1976) 62 Cal.App.3d 797, 809-810 [133 Cal.Rptr. 331] (dis. opn. of Hanson, J.) fn. omitted.)
Here once again a felon, guilty of possessing heroin for sale, is allowed to go free through a “hole” in the “hose” by the application and further extension of the irrational exclusionary rule which has created an upside-down system of criminal justice by diverting the focus of the criminal prosecution from the guilt or innocence of the defendant to a trial of the police. (See People v. Swearingen (1978) 84 Cal.App.3d 570, 578-582 [148 Cal.Rptr. 755] (dis. opn. of Hanson, J.) fns. 3-4, which recommends alternative methods for protecting individual Fourth Amendment rights; see also Wilkey, The Exclusionary Rule—Should the criminal go free because the constable blundered? (Nov. 1978) 62 Judicature, pp. 214-232.)