People v. Mora

HERNDON, J.

Defendant appeals from the judgment entered against him upon his conviction, after a nonjury trial, of possessing heroin in violation of section 11500 of the Health and Safety Code. The charge of a prior felony conviction was also found to be true. The assignments of error are that defendant’s arrest was illegal and that the police used inappropriate methods in finding and seizing the contraband which was introduced into evidence by the state.

Appellant’s principal argument centers around the contention that the police were indelicate in persuading him to expectorate two small balloons containing a modest supply of heroin which he had placed in temporary storage under his tongue.

Officer Fredrickson, a Los Angeles Police Officer assigned to the narcotic division, testified that at approximately 1 a.m. on October 3, 1961, while in the company of a fellow officer, he observed appellant and three other persons entering a certain apartment building. He recognized appellant and one of the others as persons known by him to be users of narcotics. When appellant and two of the others left the building about one-half hour later, they did not leave together but were

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approximately 15 to 20 feet apart. Officer Fredrickson then testified to the following events:

“At that time, I approached the defendant. I identified myself as a police officer and asked him what his name was. He made a

reply;

and while making this reply, I noticed that he appeared to be holding his tongue in the lower portion of his mouth as if concealing something under it.

“At this time I asked him to open his mouth and lift up his tongue. He complied; and when he did this, I observed two balloons under his tongue of the type commonly to be used to package narcotics in.

“At this time I told him to spit them out, and he threw his head back and made a swallowing motion. I placed my hand to his throat and ordered him to spit them out again, at which time he did. I recovered—rather, my partner recovered the two balloons from the sidewalk where they fell. The defendant was placed under arrest. ’ ’