Opinion
A121033.
6-26-2009
THE PEOPLE, Plaintiff and Respondent, v. CORINA CARTER, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Corina Carter seeks reversal of a judgment of conviction after jury trial. She argues that the trial court should have suppressed evidence, that being a plastic baggie of crack cocaine, because it was obtained in a search of her person that violated her rights under the Fourth and Fifth Amendments of the United States Constitution. We affirm the judgment.
BACKGROUND
An amended information filed in November 2007 in San Francisco County Superior Court charged defendant with the transporting of cocaine in violation of Health and Safety Code section 11352, subdivision (a); possessing cocaine for sale in violation of Health and Safety Code section 11351.5; attempting to deter a police officer from performing his duties by means of force or fear in violation of Penal Code section 69; and four counts of resisting, delaying, or obstructing a police officer in violation of Penal Code section 148, subdivision (a)(1). The amended information also included several special allegations.
Following a preliminary hearing, defendant moved to suppress the evidence, namely the bag of rock cocaine, that had been found on her following a strip search and physical altercation with police officers. The magistrate denied that motion because, although the court stated that the relevant search and obtaining of the cocaine from defendants person was a "very traumatic experience" for defendant based on her testimony, it found no basis to suppress the evidence.
Defendant renewed her motion to suppress before the trial court. We now summarize the relevant testimony given with regard to her motions.
OConnors Testimony
Sergeant David OConnor testified that he was a nine-year veteran of the San Francisco Police Department assigned mostly to plainclothes narcotics enforcement. He had participated in hundreds of arrests involving sale or possession for sale of narcotics. He was very familiar with the area around Sixth and Market Streets in San Francisco, which was known for illegal narcotics trafficking and consumption, particularly crack cocaine. At approximately 2:30 a.m. on February 13, 2007, OConnor was assigned to plainclothes patrol, and observed defendant at the corner of Sixth and Market conducting transactions with a number of individuals. OConnor knew defendant, having had numerous prior contacts involving narcotics investigations with her. OConnor specifically knew that defendant was on felony probation with a search condition.
OConnor observed defendant for about 15 minutes from an elevated position with his binoculars as defendant spit objects into her right hand and handed them to individuals in exchange for what looked like currency. From his experience, OConnor believed that defendant was conducting transactions in crack cocaine. OConnor saw defendant spit objects out of her mouth and onto her right hand, and hand them to an individual, who handed defendant some money in return. OConnor radioed other officers, who stopped the individual and recovered two rocks of what appeared to be crack cocaine from him. The officers then detained defendant and transported her to Southern Station.
OConnor further testified that defendant was searched prior to being transported to the police station. Nothing was found on defendant during this search. However, OConnor knew from his experience and training that sellers of narcotics often store their contraband and currency underneath their clothing to avoid detection. In OConnors experience, in about 50 percent of the cases where women were arrested for narcotics sales, the women had secreted narcotics in their vaginas. Therefore, OConnor filed a strip search request form and received authorization for a strip search to be conducted of defendant. Defendant was taken to a private room. OConnor remained outside the room while four women officers conducted the strip search.
OConnor also testified that, based on his training and experience, a womans secretion of crack cocaine in her vaginal cavity could pose a health risk to her. He had seen people transported to the hospital as a result, but could not recall specifically whether they showed any physical signs of need for medical attention.
Petrossians Testimony
Officer Sylvia Petrossian testified that she knew defendant from prior contacts and had conducted a strip search of her in the past. In this search, defendants shoes, pants, and underpants were removed. Petrossian testified that she ordered defendant to separate her legs and bend at the waist and the knees so Petrossian could visually inspect her vaginal and anal "cords." Petrossian asked defendant to cough. Defendant complied and Petrossian could see a clear plastic bag containing off-white colored rocks sticking halfway out of defendants vagina.
Based on her training and experience, Petrossian believed that defendant had hidden rock cocaine in her vagina. However, even though Petrossian could see the rocks in the plastic baggie that was half in and half out of defendants vagina, when defendant coughed the baggie did not fall out. Petrossian could have pulled the baggie out of defendants vagina, but did not do so.
Petrossian testified that she asked defendant to separate her legs and cough harder, hoping that the object would fall out. Defendant brought her legs together and refused to cooperate. She did not ask defendant to pull out the baggie because defendant was resisting "[a]s soon as we told her that we see it, you know, bent down so it comes out of your cord, she was not complying with us." Petrossian ordered defendant to comply numerous times. Defendant, who was "much bigger" than the other officers, tried to fight off the officers who gripped onto her arms, throwing the officers around. Defendants size overwhelmed the four female officers, who requested that additional female officers come into the room to assist them.
The officers persuaded defendant to sit down on a chair. They hoped that the bag would fall out while defendant was in a sitting position. Defendant then threw herself onto the ground and the chair and several officers fell over defendant. Five female officers could not control defendant because she was "so violently resisting," and Petrossian asked for additional assistance. Officer Matthew Cole, who happened to be outside the room, entered the room to provide assistance. Defendant lay face down on the ground as officers grabbed her legs. They separated defendants legs and the bag in her vagina fell onto the ground. There were 19.47 grams of crack cocaine in the bag.
Coles Testimony
Officer Matthew Cole testified that he participated in the latter part of a strip search of defendant. He was in the room for about 30 seconds. He did not search defendant, but held her leg down, participating in the process that caused the narcotics to be disgorged. He held her leg down for about 30 seconds, leaving once the narcotics were recovered. After the strip search, defendant threatened him, stating that she was "Big Block" and would make a call from jail to have a bullet put in his head, and spit at him as officers held her back.
Defendants Testimony
Defendant testified that there was a warrantless search condition as part of her felony conviction, and that she could be strip-searched at any time without a warrant. She further testified that she entered a room with five female officers, who asked her to remove all her clothing. After she was completely naked, the officers ordered her to stand in the corner with her legs spread apart, to bend over, and to cough, which she did approximately 10 times. Nothing fell out of her vagina. At that point, Petrossian knelt down next to defendants vagina and looked inside. Petrossian said she saw something, but defendant insisted that there was nothing in her vagina. Petrossian asked another officer to look into defendants vagina and that officer reported that she could not see anything.
Defendant further testified that the officers talked amongst themselves for a minute and then ordered defendant to sit in the chair and spread her legs. Defendant complied and Petrossian decided to use both her hands to open the lips of defendants vagina in order to look inside. Defendant closed her legs and objected to Petrossian touching her. Petrossian asked defendant to open her legs again and defendant said that she would not do so as long as Petrossian kept trying to touch her, which was not a part of the search. Defendant complied with Petrossian when Petrossian asked her to just open her legs so Petrossian could visually examine her, and nothing came out of her vagina. After the female officers conferred, they grabbed defendant, pulled her off the chair, and put her face down on the ground. The officers handcuffed her from behind and held onto her arms. Defendant was cooperative.
Defendant further testified that she began to resist after she was placed on the floor, moving her body back and forth as she screamed and yelled for help. After about five minutes, the officers grabbed her legs and separated them, even though she tried to keep them closed. Other officers came in to assist. She felt hands going inside her vagina despite her best efforts to keep her legs closed. She heard an officer say that she felt something. Defendant was crying. Cole then climbed on her back and punched her several times on her right side and in her jaw. Cole called her "racial names," as well as a "bitch" and a "gorilla." He ordered her to "[s]hut the fuck up." The officers retrieved the bag of rock cocaine from inside her vagina and ordered her to stand up. Defendant testified that no part of the bag of rock cocaine was protruding from her vagina.
The Courts Ruling
The court denied defendants motion, made pursuant to Penal Code section 995, that the magistrate had incorrectly denied the suppression motion. The court stated that it had carefully reviewed the transcripts as well as the cases cited by the parties, and found that the magistrate had made a finding of credibility as to the officers in the case, as opposed to defendant. The court stated:
"In this case, looking at the fact situation, it is also clear that while the embarrassment factor and perhaps humiliation to the defendant of having a portion of her body observable to a male officer may have certainly been one which resulted from the situation, a situation that was not normally acceptable, it is still and yet not a situation that falls upon even a federal exclusionary standard of behavior which shocks the conscience, [number one].
"[Number two], the testimony from the preliminary hearing transcript would suggest, certainly, that the reason for that particular situation was occasioned by the defendants continued struggle and resistance to the extent that it took six officers to control her behavior as she flailed around the holding cell room.
"So it is clear from my reading of the cases, certainly, the defendant has remedies, certainly, for having that naked portion of her body having been observed in contravention of [Penal Code section] 4030, but exclusion of the evidence under the Fourth Amendment is not the remedy. She has other remedies available which she may take.
"With regard to the 1538.5. The court accepts the testimony of [Petrossian] as determined by the Magistrate and the credibility of the witnesses, since the Magistrate below had an opportunity to observe the demeanor, manner of testifying, manner of—all matters between [Petrossian] and the defendant.
"The case law stated by counsel goes to a cavity search. And in this case, the testimony supports certainly the Magistrates finding that this was in fact not a body cavity search which requires a search warrant, but was rather a strip search, with a visual search. Certainly, when the officers observed the plastic baggie within the defendant, as the court noted, there were a number of options available. [Petrossian] testified that she did not ask the defendant to remove the baggie because, at that point, the defendant was resisting and flailing around. But most certainly, that could have been an option, and the fact that [Petrossian] chose not to exercise that option does not necessitate nor implicate the Fourth Amendment, at this point.
"So with regard to the 995 which is predicated on the Magistrates wrongful denial of the Motion to Suppress, the 995 is denied."
The court further considered the motion to suppress pursuant to Penal Code section 1538.5, subdivision (i), and heard additional testimony from OConnor (which is included in the summary of the facts, ante). The court denied the motion as follows:
"First, it seems to me that the basis of the defense argument is controverted by the testimony of [Petrossian]. The defense argument is predicated on whether or not the officers looked into the . . . vagina of the defendant, as against having her assume a certain position, when that particular item of contraband was in plain view and was clearly visible. The testimony of [Petrossian] indicates, quote: As soon as she separated her legs, bent over at the waist and knees, we could see—she could see the object inside of her, half in and half out.
"It appears clear to the court from the testimony of [Petrossian] and even [in] the argument of counsel to some extent, that this item was not an item which was fully in the vaginal cavity of the defendant, but rather was half in and half out.
"Given that the officers were in a position where they legitimately had a right to be, and given their visual inspection and visual cavity search, if you will, of the defendant, the item in plain view, the court does not believe that they were required to obtain a search warrant.
"The sense of the arguments that I have from the defense is that simply because the item was in some portion of the defendants vaginal cavity, that common decency would require the police to take her to the hospital. And that simply is not the law.
[¶] . . . [¶]
"The court has listened to the testimony of Officer OConnor and, in certain respects, quite frankly, the court gives it little weight. I think in this situation you have the observation by officers of what is clearly, beyond any doubt, contraband. You have the possibility certainly of destruction of evidence, in addition to whatever health hazard there may exist with regard to concerns that the police had.
"The court is also certainly aware from the other docket at line 6, being on the courts calendar, the defendant was on felony probation and had a search condition. Which certainly there is an argument as to whether or not at that point she has any reasonable expectation of privacy, having waived that as a condition and term of her probation.
"So I think that there are many different bases for the search.
"The officers appeared to be, certainly from the transcript, aware of the search condition. Officer OConnor testified at page 8 that he was aware the defendant was on felony probation and subject to a search condition. In this case, I do not find that the actions of the officers were unreasonable, given the factual situation."
The court also found that OConnors testimony about his training and experience failed to set forth adequate training and were described in general terms only, and as a result added little.
The court subsequently granted the Peoples motion to dismiss four counts of resisting a police officer. After a jury trial, the jury returned verdicts finding defendant guilty on the first two counts, but was unable to reach a verdict on the third count. The court sentenced defendant to a total of seven years in state prison. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that she was subjected to an illegal search in violation of her rights under the Fourth and Fifth Amendments of the United States Constitution. We do not agree.
We apply a mixed standard of review. We review the trial courts factual findings for substantial evidence (People v. Wader (1993) 5 Cal.4th 610, 640), and we do not question the trial courts judgments regarding witness credibility. (People v. Ramos (2004) 34 Cal.4th 494, 505.) However, "whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Saunders (2006) 38 Cal.4th 1129, 1134.)
The Fourth Amendment prohibits unreasonable searches and seizures, including those conducted pursuant to a lawful arrest. (People v. Scott (1978) 21 Cal.3d 284.) Scott recognized that a degree of intrusiveness inherent in strip searches sets them apart for purposes of Fourth Amendment analysis. "A warrantless invasion of the body must be incident to a valid arrest [citation] and may occur only under a limited range of exigent circumstances," which include medical emergencies and the necessity of preventing the destruction of evidence. (People v. Scott, at pp. 291-292.)
According to defendant, the police lacked probable cause to believe that defendant had secret contraband inside her body because OConnor had no individualized suspicion that she did so. Defendant further argues that even if probable cause existed to believe that she had secret contraband in a body cavity, the visual body cavity search conducted was not justified by any exigent circumstance and was not reasonable under the Fourth Amendment. Defendant also argues that even if the search were lawful at its inception, the events escalated to a point where it shocked the conscience because she was "forced to lie down on the ground, naked from the waist, with her hands cuffed behind her back. In this posture, six police officers, including one male, converged on [defendant], prying her legs apart," causing her trauma that was compounded by police ineptitude. Therefore, argues defendant, her rights under the due process clause of the Fifth Amendment were violated, requiring the suppression of the evidence recovered.
The People argue that there were two independent justifications for the search of defendant. Along with defending the right of police to search her incident to arrest, the People note that, as defendant conceded in her testimony below, defendant "was subject to a probation condition allowing police officers to search her without a warrant." The search of a probationer who is subject to search conditions "is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing." (People v. Reyes (1998) 19 Cal.4th 743, 752; People v. Bravo (1987) 43 Cal.3d 600, 611.) In rejecting a claim of Fourth Amendment violations, the court in Bravo stated: "We read the consent . . . as a complete waiver of that probationers Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner." (Id. at p. 607.) The court continued:
"`"The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with the terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law . . . ." [¶] `Probationers, by consenting to clear and unconditional conditions . . . are on notice their behavior is being monitored. They have, as a condition precedent to receiving the courts leniency, agreed in advance to waive their Fourth Amendment rights. To condition warrantless probation searches upon reasonable cause would make the probation order superfluous and vitiate its purpose." (People v. Bravo, supra, 43 Cal.3d at p. 610.)
Thus, "even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy `society is "prepared to recognize as legitimate."" (People v. Reyes, supra, 19 Cal.4th at p. 754.)
Here, the court found, and substantial evidence indicates, that the strip search was not a physical body search, but, rather, involved a visual inspection of her body cavities. Substantial evidence further indicates that a plastic bag containing rock cocaine was plainly protruding from defendants vagina and there was no probing into her body cavity. The officers observed the contraband in plain view and asked defendant to cough so that the baggie would fall out without the officers having to pull it out. We find nothing offensive to defendants Fourth or Fifth Amendment rights about such a search pursuant to a probation search condition. Given this conclusion, we need not address whether the search also was proper incident to defendants arrest.
We also reject defendants argument that the search, even if reasonable to begin with, escalated to a point where it violated her Fourth Amendment rights, and shocked the conscience in violation of her due process rights under the Fifth Amendment.
Defendant is correct 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." (People v. Bracamonte (1975) 15 Cal.3d 394, 404 (Bracamonte).) However, the court chose to believe the testimony of the officers and, as we have discussed, we generally do not interfere with the courts evaluation of witness credibility. We have no reason to do so here. Petrossians testimony indicated that defendant refused to comply with her directions as Petrossian sought to conduct her visual examination. Instead, defendant brought her legs together and then began to violently resist the efforts of the female officers present to continue the search, requiring a call for officer assistance. Defendant ended up on the ground with female officers falling on her, who were apparently unable to control her. This led to a further call for assistance, and Coles entry into the room. Given defendants continued violent resistance, we do not find any of these procedures unreasonable, nor that they shock our conscience.
Once Cole was in the room, the officers grabbed defendants legs, and spread them sufficiently for the baggie to fall out of defendants vagina and onto the floor. The People argue on appeal that "[t]he officers were hoping to retrieve the contraband by having appellant cough and having the bag fall out. It was appellant who forced the officers to grab her legs in an attempt to control her. The amount of force exercised was in response to appellants resistance and not an attempt to force the bag of contraband to fall out of her vagina." The Peoples characterization of the officers motive for spreading defendants legs is unsupported by the record, including the testimony of Petrossian and Cole at the hearing. Petrossian testified as follows:
"Q. And when Miss Carter—when Officer Cole entered the room, what was Miss Carters position?
"A. She was face down on the ground.
"Q. Exposing her buttocks to whoever was in the room; correct?
"A. Yes, sir.
"Q. And what did Officer Cole do with respect to Miss Carter?
"A. Well, upon our request, he came to assist us. And at this point shes on the ground. Officer Cole and Ruid grabbed Miss Carters left leg and pinned it in between a desk that was in the room, as I grabbed her right leg.
"Q. And then what happened?
"A. Officer Martinez and Campbell each grabbed a leg too. We separated enough for the object to fall to the ground.
"Q. so you actually had to actually physically separate her legs before the object fell to the ground?
"A. Her legs; yes."
Cole testified as follows:
"Q. And you participated in the search of her; correct?
"A. No. I didnt search her at all. I held her leg down.
"Q. Okay. So you participated in the process which caused the narcotics to be disgorged; correct?
"A. Yes.
"Q. And how long did you hold her leg down for?
"A. For the same amount of time. From the moment I went in there to assist the female officers, I held her leg down. One the narcotics were recovered, I left."
His previous testimony indicated this period of time was about 30 seconds.
The officers may well have held down defendants legs in order to restrain her. However, it is apparent from both Petrossians and Coles testimony that the officers spread defendants legs in order to compel the baggie to fall out of her vagina. Normally, such a tactic would constitute an unreasonable search and shock our conscience because it would involve the application of unnecessary and excessive force. The police have procedures by which to obtain such evidence that do not require the employment of such an aggressive tactic. Indeed, in this case it is not contested that Petrossian could have pulled on the baggie to effect its removal from defendants vagina. After Petrossian failed to do so, circumstances developed which could have led to a serious injury and, as indicated by the magistrate, which were traumatic to defendant. We cannot and do not abide by such tactics under normal circumstances.
Nonetheless, these were not normal circumstances. According to Petrossians testimony, defendants violent resistance caused several officers to fall to the floor with her as she continued to flail about, and required two calls for additional officer assistance. Under these circumstances, it is self-evident that there was a real possibility that the baggie in defendants vagina would break, and that the released rock cocaine could either be a health hazard to defendant or lost as evidence, or both. The court appropriately referred to both possibilities in its denial of the 1538.5 motion. Therefore, the officers were not acting unreasonably when they took immediate action to remove the baggie from defendants vagina. The force used was not of unreasonable intensity or scope, or excessive, in light of the situation. Defendants violent resistance made it impossible to obtain the baggie by simply pulling on it, and made it difficult to anticipate defendants actions if police were to attempt to transport her to the hospital for removal of the baggie. The officers spread defendants legs for a relatively brief period of time, no more than 30 seconds by Coles testimony, and there was no indication in the officers testimony that defendant was physically injured in the struggle.
We emphasize the violent nature of defendants resistance. We do not mean our holding to imply that any resistance, such as a passive refusal to cooperate, would merit the use of such tactics.
Defendants due process argument relies heavily on Bracamonte, supra, 15 Cal.3d 394. In that case, police, acting on the basis of a warrant for the search of the defendants person, vehicle, and residence that had been procured by the California Bureau of Narcotic Enforcement (id. at p. 397), observed the defendant in her automobile rapidly place two balloons in her mouth and swallow them. (Ibid.) The police ultimately detained her and transported her to the hospital for the purpose of retrieving through medical methods the objects she had swallowed. (Ibid.)
At the hospital, the defendant refused to drink an emetic solution prepared under a doctors orders, whereupon she was forced to her back on a table and, after she continued to resist, strapped down. (Bracamonte, supra 15 Cal.3d. at p. 398.) Because of the anticipated difficulty of forcing her to swallow the liquid, nurses inserted a rubber tube through one of her nostrils and down into her esophagus, but her continued resistance prevented the administration of the liquid. After five minutes of repeated but unsuccessful attempts, the defendant said the tube was too painful, and agreed to drink the liquid, which caused her to regurgitate seven heroin-containing balloons and continue vomiting for 10 minutes, followed by her experiencing nausea for another quarter of an hour. (Ibid.) The parties stipulated that the attending physician, if called to testify, would state that he ordered the emetic because of the warrant, which he understood authorized the search, and that absent a search warrant he would not force a patient to regurgitate over objections. (Ibid.)
The appellate court found that the search was not justified based upon the warrant because it was not intended to authorize intrusions beyond the surfaces of defendants body, as the People conceded. (Bracamonte, supra, 15 Cal.3d at p. 401.) The court then determined whether a warrantless search was appropriate under the circumstances. The court concluded that it was not because "there was no substantial reason to believe that evidence would be destroyed," since testimony indicated that the objects that had been swallowed would pass completely through the digestive tract by the ordinary processes of nature, without causing any ill effects. (Id. at p. 404) Thus, "defendant . . . easily could have been transported to jail and placed in an isolation cell and kept under proper surveillance." (Ibid.) The court also concluded that the forceful placing of a tube into the nostrils and down the esophagus of the defendant, which coerced her to drink the emetic, and the resulting regurgitation were more than a minor intrusion into her body. (Ibid.) Accordingly, the court found that the balloons should not have been received into evidence because the search and seizure was unreasonable under these circumstances. Contrary to the implications of defendants appellate argument in this case, the court did not reach the merits of the Bracamonte defendants due process claims or decide whether the search was conducted in an improper manner. (Id. at pp. 404-405.) Notably, the court stated that "[i]f, in the instant case, there was reasonable cause to believe that the balloons would not pass through the digestive tract but instead would break open and thereby dissipate, not only would the potential health hazard possibly justify the intrusion into defendants stomach, but the fear of the destruction of evidence might also justify remedial action. (Id. at p. 404.)
Considering the relevance of Bracamonte, supra, 15 Cal.3d 394, to defendants circumstances despite that courts failure to reach the due process issues, the present circumstances are easily distinguished. Defendant violently resisted such that it was reasonable to think that the baggie could break inside her body, and the use of force was much less than that used in Bracamonte, and not intrusive inside defendants body. Although the present circumstances were very unfortunate, and appear to have been preventable, we conclude that defendants Fourth and Fifth Amendment rights were not violated.
DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Haerle, J.