Utah Supreme Court Rules That Using Gun and Choke Hold to Force Defendant to Spit Out Drugs is Unacceptable

IN THE COURTS February 1996

Pointing a gun at a suspect's head and using a choke hold to force him to spit out swallowed drugs are constitutionally unacceptable police practices, a majority of the Utah Supreme Court ruled on November 30 (State (Utah) v. Hodson, 907 P.2d 1155 (Utah SupCt 1995); 58 CrL 1248).

Dennis Hodson bought heroin from a police informant. After the buy, police approached him. One of the police officers testified that he saw Hodson throw something in his mouth. Another police officer approached Hodson, pointed a gun to his head and ordered him to "spit it out." The officer then put his arm around Hodson's neck and repeated the order. Hodson spit out a few chips wrapped in plastic and the officer recovered a total of eight pieces of heroin after scooping out Hodson's mouth.

At trial, Hodson moved to exclude the heroin evidence, claiming that it was obtained in an unreasonable search. The trial court and the court of appeals denied the motion.

The Utah Supreme Court ruled that the officer's actions were comparable to using force to obtain a confession from a suspect. It said it does not tolerate threats to shoot suspects as a legitimate means to extract either information or physical evidence. In the absence of any resistance, violence, or opposition to them, police officers cannot reasonably threaten to hurt people they are searching. The Court rejected the officers' claim that the actions were necessary to preserve the drug evidence or to prevent the defendant from doing harm to himself. Two justices dissented, arguing that the pointing of the loaded gun to the head of the defendant was reasonable under the circumstances. Assuming that the agent's throat hold did not cut off the defendant's air and blood supply, the risk of harm and intrusion caused by this technique were outweighed by the community's interest in obtaining the evidence.