Rodriguez
People v. Rodriguez
Opinion
Lead Opinion
Kingsley, J.
Defendant appeals from a judgment (order granting probation). For the reasons set forth below, we reverse the order.
On information from an informant, police officers obtained a warrant authorizing search of defendant’s residence, automobile and person. 1 The police, armed with that warrant, observed defendant driving his automobile. They stopped him. As the officers approached the vehicle they saw defendant swallow several small balloons. 2 They arrested him and took him to a police station for interrogation. About an hour later, the police took defendant to a hospital where, at their request, an emetic was administered, through a nasal tube, causing defendant to regurgitate the balloons. On examination the balloons were found to contain heroin.
A motion under section 1538.5 of the Penal Code to suppress the balloons as evidence was made and denied. Thereafter, pursuant to a *550 plea bargain, defendant was found guilty of possession of heroin and was granted probation.
On the present appeal, defendant contends only that the section 1538.5 motion should have been granted. We agree and therefore reverse the order.
Defendant relies primarily on the decision by the…
Dissenting Opinion
Dunn, J.
I respectfully dissent.
It seems to me that the testimony does not warrant a reversal.
Dr. Parr testified that: “A. It was my opinion that he needed to have his stomach emptied. ... He had ingested a significant amount of heroin. He could be in danger of having a toxic reaction.”
“A. I treated him on the basis of my medical judgment. .. . That he had ingested heroin, that if I did not treat him, I could possibly endanger his life or his life would be in danger.”
“The Witness: I think the effects of gastric acid on rubber, if you use the term genetically, there are many different kinds of plastics and latens and different rubber compounds. Some are disintegrated by stomach acid and some have no effect.”
The defense testimony by Dr. Nelson, that less than 1 percent of balloons might be dissolved by gastric juices is not conclusive.
I would sustain the judgment.
A petition for a rehearing was denied July 27, 1977, and respondent’s petition for a hearing by the Supreme Court was denied September 1, 1977.
Opinion
KINGSLEY, Acting P.J.
Defendant appeals from a judgment (order granting probation). For the reasons set forth below, we reverse the order.
(1) (See fn. 1.) On information from an informant, police officers obtained a warrant authorizing search of defendant's residence, automobile and person. [1] The police, armed with that warrant, observed defendant driving his automobile. They stopped him. As the officers approached the vehicle they saw defendant swallow several small balloons. [2] They arrested him and took him to a police station for interrogation. About an hour later, the police took defendant to a hospital where, at their request, an emetic was administered, through a nasal tube, causing defendant to regurgitate the balloons. On examination the balloons were found to contain heroin.
A motion under section 1538.5 of the Penal Code to suppress the balloons as evidence was made and denied. Thereafter, pursuant to a plea bargain, defendant was found guilty of possession of heroin and was granted probation. [3]
On the present appeal, defendant contends only that the section 1538.5 motion should have been granted. We agree and therefore reverse the order.