STANIFORTH, Acting P. J. I respectfully dissent.
The majority in my view errs in two significant areas: (a) failing to examine and evaluate the conceded controlling facts of this case and (b) ignoring the substantial body of case law and statutes which deny any legal support for the specific challenged activities (use of carotid/karate restraint) of the officers here.
I
First, as to the critical and undisputed facts. The court in ruling on Carleton’s Penal Code 1538.5 motion held:
“I guess they could have talked to him for a long time and tried to talk him into it or calm him down or change his attitude, but I am satisfied that the facts here were that when confronted with that prospect, the defendant, and he doesn’t deny it, initially resisted with his left arm, tensing it, drawing it back. The police interpreted that, and not unreasonably, as not only resistance, but perhaps a threat to their own security. . . .
“[W\\hen the police officer came and put a carotid restraint on him, there was a temporary, perhaps a couple of seconds, or as the defendant testified to, maybe four or five seconds, where he was limp, but that is the only evidence the court has before it as to the defendant’s body essentially going in a limp fashion and otherwise cooperating. ” (Italics added.)
The factual finding of the police application of the carotid/karate restraint (commonly called choke hold or sleeper hold) is amply supported by the testimony not only of the officer who applied the restraint as well as those who observed it.
According to Officer Jopes, at a time when six officers and a nurse were trying to get blood from drunken Carleton by force or violence, “Sergeant [1193]Plumbley had administered a neck restraint. I was holding the left arm, and there was approximately two or three other officers that were holding him down.”
“[By Mr. Koch]: You mentioned that Sergeant Plumbley had some sort of neck restraint around Mr. Carleton’s neck.
“If you could step down from the witness stand, and if you could demonstrate, please, the exact manner in which, if you recall to the best of your ability, you observed Sergeant Plumbley restraining the defendant?” The witness complied. The court then asked defendant’s counsel, Mr. Thompson, to “describe that.” Mr. Thompson responded “It looks like a barbaric hold.”
Mr. Koch for the district attorney then described it:
“[T]he deputy has his right arm to the right portion of Mr. Koch’s neck, and his right forearm wrapped around the neck and back over the left shoulder.
“It also appears as if Deputy Jopes’ right hand is grasping his left hand, completing the circle.
“The Court: It appears that the Adam’s apple or windpipe is the apex of the elbow of the deputy.”
“Mr. Koch: Your Honor, may it also reflect that there was, at least from my observation, there was no pressure being placed on the Adam’s apple or neck area . . . .”
When further questioned about the use of this particular restraint, the deputy testified “something that you specifically avoid in that regard,” that is, “any part of your arm against the Adam’s apple or windpipe of the person restrained.” From the foregoing testimony it is quité clear the carotid/karate restraint was placed on Carleton.
Carleton testified he offered to submit to a urine test. The district attorney conceded this offer was made but refused. The officer said “No, you are going to submit to a blood test.” Carleton described a series of blows to his head and his body. Carleton testified the “headlock on my face caused some pain to my nose. I could taste some blood.” He recalled seeing some stars for a short period of time. In this context, the blood was taken. He [1194]was then taken to “safety cell.” He said the “officers forced me directly to the floor of the cell.”
The officers denied the use of any type of violence or that they injured Carleton in any respect, they denied kicking him in the ribs, striking him on the cheek or forcing him onto the floor on his face. The court made a finding that Carleton while in the rubber room was thrashing about, “probably very upset that he had been or his will had been overcome.” The court further found “in the struggle, the police officers did cause substantial bruises both to his arms, perhaps wrenching his shoulder, caused in part by his own resistance. Also, caused marks in and about his neck by virtue of the holds they had on him, and that during all the scuffling more than likely his head, face, cheek and eye areas came into contact with police officers’ arms, bodies, shoulders, floor and so forth.”
The trial court concluded these activities were not shocking to the conscience of the court, citing the Schmerber and Rochin standards as authority.1
The majority cites no case to support application of the carotid/karate restraint described above in connection with the withdrawal of blood. The reason is obvious. This type of activity is without approval in the law. Whenever and wherever life endangering choking activity has been used by police, it has been disapproved by the court.
II
The cases cited by the majority to support its conclusion are correct statements of the law but of academic interest only. They do not reach the environs of the problem raised by these facts where a suspect was choked out in order to accomplish the taking of blood.
A suspect has no constitutional right to destroy or dispose of evidence. People v. Duroncelay (1957) 48 Cal.2d 766 [312 P.2d 690], holds there was no violation of Rochin standards (the defendant withdrew his arm as the nurse approached with a needle, and thereafter the ambulance driver held his arm to obtain the blood) and did not violate the standards of Rochin v. California, supra, 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.3d 1396].
In People v. Ryan (1981) 116 Cal.App.3d 168 [171 Cal.Rptr. 854], five officers restrained the defendant while a technician withdrew blood. The [1195]court in Ryan found no violation of the Rochin standard because the police did not use more force than was necessary to overcome the defendant’s resistance. In Ryan, police did not engage in any carotid restraint or wantonness, violence or beating.
The case at bench factually falls within the penumbra of cases commencing with the seminal case of Rochin v. California, supra, 342 U.S. 165 (stomach was forcefully pumped out), People v. Rodriguez (1977) 71 Cal.App.3d 547, 549 [139 Cal.Rptr. 509] (emetic was administered through a nasal tube), and People v. Kraft (1970) 3 Cal.App.3d 890, 895-896 [84 Cal.Rptr. 280] (blood samples were forcibly obtained), People v. Sanders (1969) 268 Cal.App.2d 802 [74 Cal.Rptr. 350] (swallowing was prevented by karate art-of-choking technique, carotid restraint), and United States v. Cameron (9th Cir. 1976) 538 F.2d 254, 256 (the defendant’s rectal cavity was probed and an enema administered).
The leading case in California prohibiting the application of the carotid restraint, choke hold or the karate suppression technique is People v. Sanders, supra, 268 Cal.App.2d 802. In Sanders the judo choking technique (the precise technique as was used in this case) was applied in order to compel Sanders to spit an object out of his mouth. The officer in Sanders justified the choking technique as “very common.” “ ‘It is a very humane hold. It doesn’t leave any marks.’ . . . This stops the person from swallowing, or eventually it stops the blood flow to the head, and he then passes out.’” (Id., at p. 803.) Sanders contended the force used by police denied him due process of law. The appellate court agreed and reversed the judgment.
In Sanders, the Attorney General asserted there was in fact no choking and the force used was no more than reasonably necessary to prevent destruction of the evidence. He insisted the term “choking technique” was a misnomer for a legitimate judo competition hold.
Said the appellate court: “We are unable to accept this contention. Although the officer concluded that his technique was a ‘very humane hold,’ it appears to us that any application of force to one’s neck or throat calculated to, and which does, as stated by the officer, stop ‘the blood flow to the head, and then he passes out’ constitutes choking or its equivalent.” (People v. Sanders, supra, 268 Cal.App.2d 802, 805, fn. omitted.)2
[1196]The Sanders court reasoned: “It is argued that it is unreasonable to allow an officer to use such force as is necessary to accomplish a felon’s arrest [citation], and yet deny to the officer a similar right to prevent destruction of the evidence of the felony. This assumption assumes that choking [italics in orig.] is ordinarily necessary to prevent a suspect from swallowing narcotics—an assumption apparently unsupported by experience. And in any event, as an intermediate appellate court we must respect the clear directions of People v. Parham, supra, 60 Cal.2d 378, 384, prohibiting the choking of a suspect under the circumstances of this case.’’’ (People v. Sanders, supra, 268 Cal.App.2d 802, 805-806, italics added.) People v. Parham (1963) 60 Cal.2d 378, 384 [33 Cal.Rptr. 497, 384 P.2d 1001], says most explicitly: “Choking a man to extract evidence from his mouth violates due process.”
Not only does Sanders rest on authoritative, controlling precedent but it has been cited with approval in recent Supreme Court cases of People v. Scott (1978) 21 Cal.3d 284, 293 [145 Cal.Rptr. 876, 578 P.2d 123], and People v. Bracamonte (1975) 15 Cal.3d 394, 405 [124 Cal.Rptr. 528, 540 P.2d 624], footnote 6. In Bracamonte, the Supreme Court said: “We certainly do not intend to curtail police efforts to prevent the destruction of evidence. Inasmuch as the mouth is not a sacred orifice and there is no constitutional right to destroy or dispose of evidence, attempts to swallow evidence can be prevented [citations] as long as excessive force is not employed. (People v. Parham (1963) 60 Cal.2d 378 . . .; People v. Sanders (1969) 268 Cal.App.2d 802 . . .; People v. Erickson (1962) 210 Cal.App.2d 177 . . .; People v. Sevilla (1961) 192 Cal.App.2d 570 . . .; People v. Brinson (1961) 191 Cal.App.2d 253 . . .; People v. Martinez (1954) 130 Cal.App.2d 54 . . . .)” (Id., at p. 405.)
Recently, in People v. Trevino (1977) 72 Cal.App.3d 686 [140 Cal.Rptr. 243] (officer placed hand on defendant’s throat), Justice Compton speaking for the unanimous court said: “As to the amount of force that is permissible the cases uniformly reject the use of choking as a means of preventing this destruction of evidence or forcing defendant to disgorge it.” (Id., at p. 691.)
[1197]Here the officer testified on one occasion he grabbed Carleton by the throat and on another occasion described applying pressure sufficient to prevent swallowing but not sufficient to cut off air. Justice Compton responds most aptly. “The application of force to a person’s throat is a dangerous and sensitive activity. It is the type of force that, more than any other, is likely to result in violent resistance by the arrestee. ” (Trevino, supra, at p. 692.) Justice Compton’s nonimprimatur, standing alone, should settle any doubt on the matter. Such barbarous acts can in no wise come under the heading of “accepted medical practices.” The danger of serious permanent injury and even fatality is “common knowledge.” (People v. Sanders, supra, 268 Cal.App.2d 802, 805, fn. 1.) Rather, as People v. Parham, supra, 60 Cal.2d 378, holds, it is a blatant violation of due process to engage in such procedures. The acts of the police officers here “do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks conscience.” (Rochin v. California, supra, 342 U.S. 165, 172 [96 L.Ed. 183, 190].)
The judicial determination of due process must heed and consider carefully the means used to obtain otherwise relevant and credible evidence. To sanction a brutal life endangering choke-out is to afford brutality the cloak of law. “Nothing would be more calculated to discredit law and therefore to brutalize the temper of a society.” (Rochin, supra, at pp. 173-174 [96 L.Ed. at p. 191].)
Ill
The trial court here improvidently relied upon People v. Kraft, supra, 3 Cal.App.3d 890, in assessing whether due process was violated. In Kraft, an officer pushed the arrestee and another officer hit the arrestee in the cheek. The appellate court noted that greater restraints were necessarily to be condoned with an obstreperous, belligerant drunk. Nevertheless, the Kraft court held the officers violated the Rochin standard because they were aggressive beyond all need. The trial court distinguished Kraft in that there the defendant was defensive and the officers’ conduct was unnecessarily aggressive. The defensive/aggressive dichotomy is pure nonrelevant sophistry. The facts are clear: Carleton resisted (defensively or aggressively) the taking of his blood. He was choked into submission.
The court here concluded: “In sum, considering the totality of circumstances, the conscience of the court is not shocked, that the conduct of the police officers, although they had to use considerable strength and restraint on the defendant, was necessary because the defendant, himself, was resistive and aggressive.”
[1198]This is not a proper Rochin analysis. It is incomplete. We are required to accept the trial court’s conclusion Carleton was “aggressively resisting”; however, the determination the force used was necessary for control rather than punitive in nature does not end the Rochin inquiry. If such were the law then the police could lawfully and unmercifully batter an aggressively-resisting defendant into submission if it was necessary to obtain control. Such is not the law; the end does not justify an unlawful or barbarous means. Evidence of guilt may not be extracted by unlawful, barbaric means. The application of a choking force to a person’s throat is a dangerous and sensitive activity. It is a violation of due process. (People v. Parham, supra.)
Under Rochin, it is not enough to question whether the means were necessary to accomplish the objective of obtaining the otherwise relevant and credible evidence. The court must also question whether the means justify the end. The conduct of the officers in using a carotid suppression hold reached a degree of brutality so as to authorize the refusal of admission of evidence by a court of law.
IV
The majority further errs in its failure to analyze the implied consent law (Veh. Code, § 13353) and explicate the legislative intent which compelled the enactment of this law. People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 764-765 [100 Cal.Rptr. 281, 493 P.2d 1145], is most instructive on this issue. There, the Supreme Court pointed out that under Schmerber, supra, a person who has been lawfully arrested may have a blood sample forcibly removed without his consent provided it is done in a reasonable medically approved manner and provided the arresting officer had probable cause to believe the arrestee was intoxicated. “[N)evertheless such an episode remains an unpleasant undignified and undesirable one. ” (Id., at p. 764.)
The Supreme Court explained: “[T]he shocking number of injuries and deaths on the highways caused by drunk drivers has compelled society to adopt extreme measures in response. By its enactment in 1966 of section 13353, the Legislature devised an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, providing that such person will lose his automobile driver’s license for a period of six months if he refuses to submit to a test for intoxication. The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion. It is noteworthy in so doing, the Legislature took pains to condition its use upon a lawful arrest for driving under the influence of intoxicating liquor and upon the reason[1199]able belief of the peace officer that the arrestee was in fact so driving.” (People v. Superior Court (Hawkins), supra, 6 Cal.3d 757, 765.)
The Supreme Court became more explicit in Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 77 [177 Cal.Rptr. 566, 634 P.2d 917], where it said: “Prior to the enactment of the statute, both this court and the United States Supreme Court had explicitly held that when a person has been lawfully arrested for drunk driving the police, utilizing appropriate medical procedures, may forcibly [italics in orig.] remove a blood sample from the driver without his consent. [Citations.] Despite the legality of such coercive procedure, however, the Legislature recognized that ‘such an episode remains an unpleasant, undignified and undesirable one.’ (People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757 . . . .) In enacting section 13353, the Legislature sought to obviate these consequences for the driver and ‘avoid the possible violence which could erupt if forcible tests were made upon a recalcitrant and belligerant inebriate’ (Anderson v. Cozens, supra, 60 Cal.App.3d 131, 143), while at the same time preserving the state’s strong interest in obtaining the best evidence of the defendant’s blood alcohol content at the time of the arrest.” Thus “the Legislature devised an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, by providing that such person will lose his automobile driver’s license for a period of six months if he refuses to submit to a test for intoxication. The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion.” (People v. Superior Court (Hawkins), supra, 6 Cal.3d 757, 765, italics added.)
The Supreme Court in People v. Bracamonte, supra, 15 Cal.3d 394, 404, has said: “We are mindful of the Supreme Court’s warning in Schmerber that ‘[t]he integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the State’s 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.’ (Schmerber v. California, 384 U.S. 757, 772 . . . .)” The Supreme Court concluded: “We reiterate that a search, even if justified at its inception, may be unconstitutional by virtue of its intolerable intensity and scope. Furthermore, the use of excessive force which shocks the conscience violates due process of law.” (Id., at pp. 404-405, italics added.)
V
Further grounds exist for the issuance of the writ. In Schmerber v. California, supra, 384 U.S. 375, the United States Supreme Court correctly [1200]perceived it was dealing with evidence (alcohol in the blood stream) that was evanescent in nature. In view of the nature of that evidence the procedures employed to secure it and maintain its viability justified the intrusion without first resort to the search warrant procedure. The evidence in this case indicated a telephonic warrant could be obtained in an expeditious manner—in fact in a matter of minutes. Furthermore, the state of the art concerning scientific preservation of blood, analysis of blood alcohol content and the current abilities to “back track” a blood alcohol content, make antiquated the Schmerber premise the evanescent character of the evidence justifies avoiding the search warrant procedure. Nowhere in this evidence can there be found an emergency or exigency to warrant the forcible removal of the fluids from Carleton’s body. People v. Superior Court (Hawkins), supra, 6 Cal.3d 757, points out the prosecution must show an overwhelming need justified the intrusion without a warrant, that the exigency of the situation made the immediate and forcible removal imperative. (Id., at p. 763.) Finally, as the Supreme Court said: “[T]he burden is on the People to show an overwhelming need that would justify a search without a warrant [enforcible extraction situations]. ‘The exceptions [to the requirement of a warrant] are ‘jealously and carefully drawn,’ [citation] and there must be ‘a showing of those who seek exemption . . . that the exigencies of the situation made that course imperative. ’ [Citation.] ‘[T]he burden is on those seeking the exemption to show the need for it.’ [Citation.]” (Ibid.)
For each of these reasons the writ should issue.
Petitioner’s application for review by the Supreme Court was denied December 11, 1985. Bird, C. J., and Mosk, J., were of the opinion that the application should be granted.
Schmerber v. California (1966) 384 U.S. 357 [16 L.Ed.2d 908, 86 S.Ct. 1826]; Rochin v. California (1952) 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396].
A footnote of Sanders relates:
“In the San Francisco Public Library we find a work (Bruce Tegner (1961), Judo for Fun, pp. 20-21—Library of Congress Catalog number 61-16761) wherein it is stated: ‘Chokes must not be attempted by any Judo player unless there is a Black Belt instructor present who is trained in the art of resuscitation (Kappo or Katsu). It is foolish and dangerous to attempt choking techniques without this safety precaution. Although there are some instructors who, [1196]unfortunately allow it, chokes against the windpipe should not be practiced. Chokes against the windpipe can be fatal. If at any time a windpipe choke is applied to you—you must submit immediately and refuse to practice with anyone who applies chokes of this nature. [1] It requires more skill to apply Judo chokes properly, against the carotid artery. You must not apply even a legal choke without the presence of a Black Belt Instructor. The legal choke against the carotid artery can cause unconsciousness and there is danger of serious permanent injury or even fatality if the unconscious person is not revived within a matter of minutes. ’
“This comment iterates what must be considered common knowledge—that any stoppage of the flow of blood to the head until one becomes unconscious is attended by serious danger.” (People v. Sanders, supra, 268 Cal.App.2d 802, 805, fn. 1, italics added.)