COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73489 IN THE MATTER OF: NASRAY : JOURNAL ENTRY ABU-ALI : AND : OPINION Defendant-appellant : : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 25, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Juvenile Court Division Case No. 9700509 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR Eighth Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DARIN THOMPSON, ESQ. ASST. PUBLIC DEFENDER 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113 DYKE, J.: -2- Nasray Abu-Ali (hereafter referred to appellant ) appeals from the judgment of the juvenile court which found him to be delinquent for possessing cocaine and criminal tools. For the reasons set forth below, we reverse. On January 17, 1997, Cleveland Police issued a complaint against appellant charging him with delinquency for possessing cocaine and criminal tools. The matter came to trial on July 17, 1997. As the proceedings commenced, the defense moved to suppress the evidence, asserting that it was seized in violation of appellant's constitutional rights. With the agreement of the parties, the court determined that it would combine the hearing on the motion to suppress with the trial on the merits. For its case, the state presented the testimony of Cleveland Police Officer Kanzig. Officer Kanzig testified that shortly after 3:00 a.m., on December 2, 1996, he and his partner observed appellant on Clark Avenue. The officers suspected that appellant was violating curfew and stopped him. During this time, appellant appeared to put something into his mouth. The officers commanded him to spit out the object but he refused to do so. Kanzig held his throat so he wouldn't be able to swallow it and his partner struck him in the stomach to make him cough, and he coughed out the suspected cocaine. (Tr. 17). Appellant spit out ten objects. The officers took him to his father's house to report what had happened then took him to the hospital. The officers also recovered $118, food stamps and a pager. -3- The trial court denied the motion to suppress and determined that appellant was delinquent in connection with both charges. Appellant was subsequently committed to the custody of the Ohio Department of Youth Services. Herein, appellant assigns two errors for our review. Appellant's first assignment of error states: THE JUVENILE COURT ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS EVIDENCE BECAUSE THE METHOD AND MANNER OF THIS SEARCH WAS UNREASONABLE AND SHOCKED THE CONSCIENCE. Within this assignment of error, we are called upon to assess whether appellant was subjected to an unconstitutional search and seizure when the arresting officers grabbed him by the throat and punched him in the stomach in order to extract cocaine from his mouth. As we find such tactics to constitute an unreasonable seizure and to shock the conscience, we answer this question in the affirmative. The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreason- able searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment proscribes all unreasonable searches and seizures and it is a cardinal principal that its overriding function *** is to protect personal privacy and dignity against unwarranted intrusion by the State. Schmerber v. California -4- (1966), 384 U.S. 757, 767. Its proper function is to constrain intrusions which are not justified in the circumstances, or which are made in an improper manner. Id. at 368. In determining whether a Fourth Amendment violation has occurred in connection with a bodily search, the Schmerber court announced several criteria: (1) the government must have a clear indication that incriminating evidence will be found; (2) the police officers must have a warrant, or, there must be exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner. Id. at 770-772, 86 S.Ct. at 1835-1836, 16 L.Ed.2d at 919-920. Further, as the court noted in State v. Sisler (1995), 114 Ohio App.3d 337, 342-343: "The due process guarantee protects citizens from the arbitrary or fundamentally unfair use of government power, while the search and seizure clause requires that the government engage only in reasonable searches and seizures. Obviously, a government intrusion that violates the due process guarantee (because it is arbi- trary or inconsistent with fundamental notions of justice) will also violate the search and seizure clause (because it will be unreasonable)." *** The two constitutional provisions join to require that in any search and seizure the "means and procedures employed [must respect] relevant Fourth Amendment standards of reasonableness." Schmerber v. California, supra, 384 U.S. at 768, 86 S.Ct. at 1834, 16 L.Ed.2d at 918. Thus, where the method employed by the police to obtain evidence shocks the conscience, a due process violation has been -5- articulated. Rochin v. California (1951), 342 U.S. 165, 172. The Rochin court explained: "[W]e are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents--this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation." Id., 342 U.S. at 172, 72 S.Ct. at 209-210, 96 L.Ed. at 190. These fundamental principles are safeguarded by the exclu- sionary rule which mandates suppression of evidence obtained as the result of the illegal search or seizure. See Mapp v. Ohio (1961), 367 U.S. 643, 655. This court recently considered these principles in State v. Victor (1991), 76 Ohio App.3d 373. In Victor, a police officer observed the defendant in an area marked by many prior drug sale complaints motioning to occupants of vehicles. They further observed him approach a car and lean into the passenger side window. The defendant attempted to leave the area when the officers approached and the officers observed him place suspected drugs into his mouth. The arresting officer grabbed the defendant's neck and quickly applied pressure to his throat, causing him to expel the suspected drugs. Noting that the reasonableness of an intrusive search must be considered on a case- by-case basis, a divided panel of this court concluded that the search was reasonable. Accord United States v. Caldera (C.A.9, -6- 1970), 421 F.2d 152 (force exerted to search defendant's mouth was neither shocking nor unreasonable under the circumstances); United States v. Harrison (C.A.D.C. 1970), 432 F.2d 1328 (action of police in grabbing defendant by the throat in order to prevent him from swallowing heroin capsules was reasonable). From this line of authority, some reasonable, carefully administered measures may be applied to prevent a suspect from ingesting suspected drugs and to preserve evidence. Nonetheless, we are unable to condone the search which occurred in this instance. Applying the criteria announced in Schmerber v. California, supra, there was no clear indication that incriminating evidence would be found. Appellant was stopped for an apparent curfew violation, and was at no time observed to be engaging in drug-related activity. Further as to the method employed by the officers, we are unable to conclude that the measure applied in this matter was reasonable, or reasonably applied. It is both unreasonable and shocking to the conscience to grab a suspect by the throat and punch him in the stomach in order to obtain evidence which the suspect may have placed in his mouth. This is particularly true in this instance as the officers admittedly worked in concert to subdue a 5'9" and 120 lbs. suspect who clearly looked too young to be out at that hour. We find such tactics to more closely resemble the cruel, simple expedient of compelling [evidence] from the accused's own mouth which has been condemned by the Supreme Court of the United States. Cf. Schmerber v. California, supra, at 763. -7- Accordingly, the trial court erred in denying the motion to suppress and the first assignment of error is well-taken. Appellant's second assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ADJUDICATED MASTER ABU-ALI DELINQUENT FOR POSSESSION OF CRIMINAL TOOLS BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ALLOW A RATIONAL TRIER OF FACT TO FIND THAT THE ELEMENT OF INTENT WAS PROVEN BEYOND A REASONABLE DOUBT. In our discussion of the previous assignment of error, we determined that appellant was subjected to an unconstitutional search and the exclusionary rule therefore mandated suppression of the illegally obtained evidence. With regard to this assignment of error, we note that the exclusionary rule additionally mandates suppression of evidence which is subsequently discovered and derivative of that prior illegality. Wong Sun v. United States (1963), 371 U.S. 471, 488. Accordingly, the evidence of alleged criminal tools must be suppressed as the fruit of the poisonous tree in order to give effect to appellant's constitutional rights. The delinquency adjudication entered in connection with the charge of possession of criminal tools therefore fails for insufficient evidence and this claim is accordingly well-taken. The delinquency adjudications entered in this matter are reversed. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MCMONAGLE, J., CONCURS (SEE ATTACHED CONCURRING OPINION) PORTER, P.J., DISSENTS (SEE ATTACHED DISSENTION OPINION) ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73489 IN THE MATTER OF: : -9- : NASRAY ABU-ALI, A MINOR : : D I S S E N T I N G Appellant : : O P I N I O N : : DATE: NOVEMBER 25, 1998 JAMES M. PORTER, P.J., DISSENTING: I must respectfully dissent from my colleagues disposition of this appeal on the grounds that the majority fails to follow the on-all-fours decision of this Court in State v. Victor (1991), 76 Ohio App.3d 372. The majority's conclusion that the police officers used excessive force is contradicted by this Court's holding in Victor. On facts remarkably similar, the defendant in Victor, was approached by police officers for suspected drug activity. Upon seeing the officers, defendant started walking hurriedly away and placed something in his mouth. Approaching the defendant quickly from the right rear, the detective put his left hand on defendant's back, swang around in front of the defendant and grabbed the front of the defendant's neck with his right thumb and forefinger choking the defendant with a firm thrust of his hand as in a karate chop. The defendant immediately spat out two half-inch square plastic bags. Victor, supraat 379-80. It is doubtful that a karate chop to the throat is less intrusive than a punch in the stomach. Upon a careful review of the very cases on which this majority relies -10- (Rochin, Schmerber and Winston ), as well as many others, the Victor Court analyzed the evidence and held at 379: As the detectives approached the defendant, he began walking hurriedly away. The detectives announced their identity as police officers at which time the defendant was observed placing something into his mouth. Furthermore, exigent circumstances were present which would have made it extremely impractical for the officers to obtain a warrant. The defendant was in the process of destroying the only evidence the government had to convict him of possession of narcotics. The officers were unaware of whether the narcotics were packaged in such a manner as to be impervious to intestinal processes. Had the narcotics been unpackaged, the evidence could have been metabolized before a blood test could be administered. We, thus, reject defendant's contentions that less intrusive means were available to retrieve the evidence. In addition, the method and manner of the search were not unreasonable. As far as can be determined from the transcript, the officers did not use excessive force to accomplish the search: the defendant remained standing throughout the search; the search was accomplished quickly with the defendant opening his mouth as soon as pressure was applied to his throat; and the defendant did not appear to be injured as a result of the contact. Thus, it appears no more force was used than was reasonably necessary. Based on the above, we conclude the means and procedures employed by the police adequately complied with Fourth Amendment standards of reasonableness under the limited circumstancesof this case. Schmerber, supra. Accordingly, the suppression of critical evidence against defendant was error. The state's assignment of error is sustained and the trial court's judgment is reversed. It can be seen from the foregoing that the facts at issue present an even stronger case for denying suppression in that the police exercised considerable restraint in obtaining evidence while protecting the youth. Although the majority states (p.7) that there was no clear indication that incriminating evidence would be found, the officers had every reason to believe otherwise. The more they talked to the young man, the more nervous he became. He turned, made a motion to his mouth and started walking away, raising justifiable suspicion. The officer grabbed him and held his throat so he couldn't swallow, repeatedly requesting him to open his mouth or spit it out. He refused. It was only then that they punched him in the stomach to make him successfully cough out the contraband. (Tr. 14-17). Less intrusive means were not available under the exigent circumstances. No harm resulted to defendant. The officers would have been delinquent in their duties to stand by helplessly while the youth swallowed what turned out to be ten rocks of cocaine and possibly overdosed on the powerful drug. They acted reasonably in retrieving the evidence and protecting the youth. Under the circumstances, we should follow our own precedent in Victor, supra, and sustain the lower court's ruling. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73489 IN THE MATTER OF: : NASRAY ABU-ALI, A MINOR : : C O N C U R R I N G APPELLANT : O P I N I O N : : : : -12- DATE: TIMOTHY E. McMONAGLE, J., CONCURS: I write separately not only to concur with the well-reasoned majority opinion but to respectfully, yet vigorously, disagree with the dissent's characterization of State v. Victor (1991), 76 Ohio App.3d 372, as being on-all-fours with the within factual situation. The police officers in Victor were veteran narcotics detectives on a regular patrol specifically looking for drug traffickers in a very high drug activity area. These police officers observed the defendant in this exact area waving his hands and motioning to the occupants of passing vehicles. They also observed the defendant lean into the passenger side window of a stopped car. Moreover, each of the defendant's actions was consistent with the modes or patterns of operation utilized by street corner drug vendors. Victor, supra at 375. In the within case, this defendant was observed as being nothing more than young. He was suspected of doing nothing more than being underage for the time of night. This factual situation is just too different to be on-all-fours or even remarkably similar as claimed in the dissent. The dissent further claims that the police exercised considerablerestraint in obtaining evidence while protecting the youth. (Dissent, p. 3). Two adult patrolmen, one holding the clearly juvenile curfew violator by the neck while the other officer strikes the juvenile in the stomach is hardly considerable -13- restraint under any interpretation. It is even more difficult to fathom how an activity which sounds remarkably similar to punching and choking was protecting the youth. These officers, while remarkably candid about what they did, just did not act reasonably in retrieving this evidence, nor can it be said they protected the youth. To allow such unfettered police activity without sanctions cannot be tolerated in a country which prides itself on protecting its citizens' individual freedoms. The Constitution of the United States should not be viewed as merely existing to justify any type of police activity just so long as it yields incriminating evidence. Rather, the Constitution exists to provide protection .