2006 UT 61
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
No. 20050468
Plaintiff and Respondent,
v.
F I L E D
Ernesto Alverez,
Defendant and Petitioner.
October 20, 2006
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Third District, Salt Lake
The Honorable Paul G. Maughan
No. 031904214
Attorneys: Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray,
Asst. Att'y Gen., for plaintiff
Steven G. Shapiro, Debra Meek Nelson, Salt Lake City,
for defendant
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1
Defendant Ernesto Alverez was convicted of two counts
of possession of a controlled substance with intent to
distribute. Before trial, he moved to suppress the admission of
the drugs into evidence, arguing the police actions that led to
the discovery of the drugs constituted an unreasonable search and
seizure in violation of the Fourth Amendment to the United States
Constitution. The district court denied his motion and the court
of appeals affirmed. We granted certiorari to review the
decision of the court of appeals and now affirm.

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FACTS
¶2
"The legal analysis of search and seizure cases is
highly fact dependent." State v. Brake, 2004 UT 95, ¶ 2, 103
P.3d 699 (citing State v. Hansen, 2002 UT 125, ¶ 5, 63 P.3d 650).
Therefore, we give a detailed recitation of the facts.
¶3
On June 23, 2003, Officer Don Wahlin of the Salt Lake
City Police Department and another officer were conducting
surveillance on a condominium complex located in South Salt Lake
City. According to Officer Wahlin's suppression hearing
testimony, he had "heard there was dealings" in that area. The
record does not reveal the source of the tip or how it came to
Officer Wahlin's attention. While observing the condominiums,
the officers saw a vehicle pull into the complex. Officer Wahlin
recognized the vehicle as the same vehicle reportedly involved in
drug sales near an unknown informant's residence located nearly
20 blocks away. Officer Wahlin received this information from
the Salt Lake City Police Department's Narcotics Unit.
Defendant, who was the car's driver and only occupant, got out of
the vehicle and walked to an unknown location in the complex. He
returned about five minutes later and drove away. Officer Wahlin
ran a computer check on the vehicle and discovered that it was
uninsured. Due to a department policy, the officers did not stop
the car for lack of insurance at that time.
¶4
The next day, Officer Wahlin and Officer Chad Steed
returned to the condominium complex. According to Officer
Wahlin, they did so because it was their experience that drug
dealers typically return to the same location around the same
time of day. As they expected, the vehicle returned, and
Defendant got out and again walked to an unknown location in the
complex. At this point, the officers moved their unmarked car
closer to the vehicle in question, got out, and waited behind a
van parked next to Defendant's car. While they were waiting,
Officer Steed looked into the driver's area of the vehicle and
saw a representation of Jesus Malverde.1 He also noticed a small
bottle of water, which in his experience is frequently used by
individuals involved in the drug trade to swallow drugs that they
have hidden in their mouths. When Defendant returned to his car
less than five minutes later, just as he had done the day before,
Officers Wahlin and Steed approached him from behind the van.

1 According to Officer Steed, Jesus Malverde is known among
drug dealers as the patron saint of drug dealing. The record
does not disclose the form of the representation.
No. 20050468
2

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¶5
Officer Wahlin first asked Defendant whether he knew
that his vehicle was uninsured, to which Defendant replied,
"How'd you know that?" Officer Wahlin then explained to
Defendant that the vehicle was suspected of being connected to
drug dealing. Defendant denied any knowledge of drug dealing.
Officer Wahlin then asked Defendant whether he had any drugs on
him, and Defendant responded in the negative. Finally, Officer
Wahlin asked Defendant to open his mouth to show the officers
whether he was hiding any drugs. Officer Wahlin testified that,
up until this point, he had not had any difficulty understanding
Defendant's speech nor had he noticed objects in his mouth.
However, upon asking Defendant to open his mouth, Officer Wahlin
noticed that Defendant appeared nervous. Moreover, both officers
saw Defendant making strange motions with his tongue and mouth,
as well as a swallowing motion.
¶6
Almost immediately, and without communicating with one
another, both officers grabbed the wrists of Defendant and
twisted his arms, which pushed his head and torso forward. The
officers testified that they believed Defendant was trying to
conceal or destroy evidence that he was hiding in his mouth.
They also testified that they grabbed him and bent him forward to
prevent him from swallowing the objects in his mouth. The
officers ordered Defendant to spit out the objects in his mouth,
and Defendant proceeded to spit out 15 balloons containing heroin
and cocaine.
¶7
Defendant was arrested and charged with two counts of
possession of a controlled substance with intent to distribute, a
second degree felony. He filed a motion to suppress the drugs,
alleging that the police had violated his Fourth Amendment right
to be free from unreasonable searches and seizures.2 The
district court held a suppression hearing, following which it
denied Defendant's motion, stating that under the totality of the
circumstances the officers had a "reasonable basis to believe a
crime was being committed in their presence." Defendant entered
a conditional plea of guilty, reserving the right to appeal the
denial of his motion to suppress pursuant to State v. Sery, 758
P.2d 935 (Utah Ct. App. 1988). Defendant subsequently appealed
his conviction to the Utah Court of Appeals, which affirmed in
State v. Alverez, 2005 UT App 145, 111 P.3d 808. Defendant
requested certiorari, which we granted. This court has
jurisdiction under Utah Code section 78-2-2(5) (2002).

2 Defendant has raised his search and seizure objections
solely on the basis of the Fourth Amendment, without making any
claims under article I, section 14 of the Utah Constitution.
3
No. 20050468

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STANDARD OF REVIEW
¶8
"On certiorari, we review the decision of the court of
appeals and not that of the district court." State v. Brake,
2004 UT 95, ¶ 11, 103 P.3d 699. The court of appeals' decision
is reviewed for correctness. Id. In search and seizure cases,
no deference is granted to either the court of appeals or the
district court regarding the application of law to underlying
factual findings. Id. ¶¶ 11, 15.
ANALYSIS
¶9
We granted certiorari on three issues: (1) "[w]hether
the totality of the circumstances . . . created a reasonable
[and] articulable suspicion" of criminal activity that justified
the officers' detention of Defendant; (2) "[w]hether the totality
of the circumstances at the time the police officers conducted
their search demonstrated probable cause for that search"; and
(3) "[w]hether the officers employed reasonable force to obtain
evidence from [Defendant's] mouth." Before addressing these
issues, we believe it necessary to address the level of the
encounter that took place between Defendant and the police
officers.
I. FOURTH AMENDMENT SEIZURE
¶10
The State of Utah recognizes three levels of
constitutionally permissible encounters between police officers
and citizens:
(1) an officer may approach a citizen at
anytime [sic] and pose questions so long as
the citizen is not detained against his will;
(2) an officer may seize a person if the
officer has an "articulable suspicion" that
the person has committed or is about to
commit a crime; however, the "detention must
be temporary and last no longer than is
necessary to effectuate the purpose of the
stop"; (3) an officer may arrest a suspect if
the officer has probable cause to believe an
offense has been committed or is being
committed.
Salt Lake City v. Ray, 2000 UT App 55, ¶ 10, 998 P.2d 274
(quoting State v. Deitman, 739 P.2d 616, 617­18 (Utah 1987)).
The State contends that the encounter between Defendant and
Officers Wahlin and Steed was a level one encounter, which is a
"consensual encounter wherein a citizen voluntarily responds to
No. 20050468
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non-coercive questioning by an officer." State v. Hansen, 2002
UT 125, ¶ 34, 63 P.3d 650. Because such an encounter is
consensual, there is no seizure under the Fourth Amendment. Id.
However, a level two seizure, which involves "an investigative
detention that is usually characterized as brief and non-
intrusive," is a Fourth Amendment seizure and thus requires that
police have a reasonable suspicion. Id. ¶ 35. The
distinguishing feature between a level one encounter and a level
two seizure is whether "in view of all of the circumstances . . .
a reasonable person would have believed that he was not free to
leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980).
¶11
The court of appeals did not express its opinion on
the level of the encounter in this case but rather presumed the
encounter was a level two seizure, noting that the outcome of the
appeal would have been the same regardless of its resolution of
this issue. State v. Alverez, 2005 UT App 145, ¶ 10 n.2, 111
P.3d 808. We conclude that this encounter was a level two
seizure and therefore implicates the Fourth Amendment's
protection against unreasonable search and seizure. Under the
circumstances in this case, where two uniformed police officers
waited for and then approached Defendant and accused him of not
one, but two illegal acts---lack of car insurance and drug
trafficking---a reasonable person would not have felt free to
leave.
¶12
The State claims that the United States Supreme Court
has held that questioning alone does not immediately turn an
encounter from a level one consensual encounter into a level two
seizure. That much is true. The Court has stated that "mere
police questioning does not constitute a seizure," Florida v.
Bostick, 501 U.S. 429, 434 (1991), and that "police officers can
approach individuals . . . and ask them potentially incriminating
questions," id. at 439. However, we think the manner of
questioning, the content of the questions, and the context in
which the questions are being asked can convert "mere
questioning" into a level two seizure if, under all of the
circumstances, a reasonable person would not feel free to leave.3
In this case, the officers' inquiries exceeded "mere questioning"
and created a confrontational encounter. The questions "[d]id
you know your car was uninsured?" and "[d]id you know your car is

3 The Supreme Court in United States v. Mendenhall gave
several examples of circumstances that might denote a seizure,
two of which were the "use of language or the tone of voice" that
might indicate to a defendant that "compliance with the officer's
request might be compelled" and the "threatening presence of
several officers." 446 U.S. 544, 554 (1980).
5
No. 20050468

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suspected as being involved in drug dealing?" were accusatory in
nature. These questions, which originated from a pair of
uniformed police officers who waited for and then surprised
Defendant alone in a residential parking lot, would not leave a
reasonable person with the impression that he was free to
disregard the questions, get in his car, and drive away. The
accusatory nature of the questions and the context in which they
were asked demonstrated a "show of authority" sufficient to
restrain Defendant's freedom of movement. Mendenhall, 446 U.S.
at 553.
¶13
Having determined that a level two Fourth Amendment
seizure did occur in this case, we now turn to whether the
officers had a reasonable and articulable suspicion of criminal
activity in order to justify Defendant's detention.
II. REASONABLE AND ARTICULABLE SUSPICION
¶14
"[I]t is settled law that `a police officer may detain
and question an individual when the officer has reasonable,
articulable suspicion that the person has been, is, or is about
to be engaged in criminal activity.'" State v. Markland, 2005 UT
26, ¶ 10, 112 P.3d 507 (quoting State v. Chapman, 921 P.2d 446,
450 (Utah 1996)). Under the reasonable suspicion standard, "the
likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard." United
States v. Arvizu, 534 U.S. 266, 274 (2002). When determining
whether police officers had a reasonable and articulable
suspicion, courts may not use a "divide-and-conquer analysis."
Terry v. Ohio, 392 U.S. 1, 22 (1968). In other words, courts
cannot evaluate individual facts in isolation to determine
whether each fact has an innocent explanation. United States v.
Arvizu, 534 U.S. 266, 274 (2002). Rather courts must look to the
"totality of the circumstances" to determine whether, taken
together, the facts warranted further investigation by the police
officer. Id. An officer's suspicion is reasonable if it is
supported by specific and articulable facts as well as any
rational inferences drawn from those facts. See Terry, 392 U.S.
at 21. However, an "inchoate and unparticularized suspicion or
`hunch,'" is insufficient to establish reasonable suspicion. Id.
at 27.
¶15
While the analysis of a stop is an objective one, the
officer's subjective belief is a factor in the analysis. State
v. Warren, 2003 UT 36, ¶¶ 19­20, 78 P.3d 590. A lack of
subjective belief on the part of the officer conducting the
search will not per se invalidate the search if it was
objectively reasonable. Id. ¶ 19. Also, courts will consider
No. 20050468
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police officers' "subjective interpretation of the facts" as part
of an objective analysis. Id. ¶ 20. Moreover, officers are
allowed to use their training and experience in making rational
inferences about possible criminal behavior. Arvizu, 534 U.S. at
273. The parties here do not dispute the propriety of the
officers' initial question about Defendant's lack of car
insurance.4 Rather, they dispute whether the officers had a
reasonable suspicion of drug activity sufficient to extend the
permissible scope of the detention to ask Defendant about drugs.
"The length and scope of the detention must be `strictly tied to
and justified by' the circumstances which rendered its initiation
permissible." State v. Johnson, 805 P.2d 761, 763 (Utah 1991)
(quoting Terry, 392 U.S. at 19). Thus, before extending the
scope of the initial detention, the officer must have a
reasonable suspicion of a further illegality. State v. Hansen,
2002 UT 125, ¶ 31, 63 P.3d 650.
¶16
In order to determine whether Officers Wahlin and Steed
had a reasonable, articulable suspicion to ask Defendant about
drugs, we must examine the facts available to them before they
approached Defendant. Both officers were trained and experienced
and, thus, had personal knowledge about the drug trade. This
enabled them to interpret their observations and more readily
detect criminal wrongdoing. The officers had received two tips,
one about Defendant's vehicle and another about drug activity in
the area of the condominium complex. The officers had witnessed
Defendant make two short visits to the condos on consecutive
days; they had been trained to recognize this type of behavior as
being consistent with drug dealing. Officer Steed had also seen
a water bottle and representation of Jesus Malverde, two items
that he associated with drug trafficking.5

4 Defendant concedes that the police officers had a
reasonable suspicion about the lack of insurance, thus justifying
the initial question. The State argues that because this
encounter was consensual, the officers needed no reasonable
suspicion but had it anyway.

5 At the suppression hearing, the district court gave
"little weight" to these two facts. As noted by the court of
appeals, however, these facts should still be included in an
analysis of the totality of the circumstances. State v. Alverez,
2005 UT App 145, ¶ 13 n.3, 111 P.3d 808.
The topic of the personage Jesus Malverde was a subject of
extensive discussion at the suppression hearing. While this
court professes no special expertise in hagiology or folklore,
some independent research reveals that Jesus Malverde is not
(continued...)
7
No. 20050468

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¶17
Under the totality of the circumstances, we think that
the above facts were sufficient to give Officers Wahlin and Steed
a reasonable suspicion of criminal drug activity. A police
officer may, in certain circumstances, rely on information
received from another; however, "the legality of a stop based on
information imparted by another will depend on the sufficiency of
the articulable facts known to the individual originating the
information." State v. Case, 884 P.2d 1274, 1277 (Utah Ct. App.
1994); see also Ex parte State, 494 So. 2d 719, 721 (Ala. 1986).
In other words, the tip must bear some indicia of reliability.
See Florida v. J.L., 529 U.S. 266, 271 (2000). In this case, the
officers received two tips. Officer Wahlin described one tip as
his "ha[ving] heard there was dealings in this area." The other
tip, about Defendant's vehicle, came from the police department's
narcotics division. The record does not disclose whether the
narcotics division was able to provide any background information
about the origin or trustworthiness of its report. Because the
origin of the tips relied on by the officers is unknown, neither
tip bears any external indicia of reliability, which is
troubling. Indeed, the State has conceded that the tips alone
were insufficient to create a reasonable suspicion.
¶18
Nevertheless, we believe the tips can still be
considered, along with other factors, in a totality of the
circumstances analysis. In J.L., the United States Supreme Court
affirmed the decision of a Florida state court to suppress
evidence that was obtained from a juvenile defendant where the
police officers' suspicions "arose not from any observations of
their own but solely from a call made from an unknown location by
an unknown caller." Id. at 270. J.L., however, does not prevent
police officers from using tips without any indicia of
reliability if, in addition to such tips, the officer's own
observations give the officer a reasonable suspicion of illegal
activity. Here, the officers relied on their own observations in
addition to the anonymous tips. We give greater emphasis to

5 (...continued)
exclusively or historically associated with the drug culture. He
is a regional folk hero, in the tradition of Robin Hood, who is
popular among the poor and disadvantaged of the Mexican state of
Sinaloa. Jesus Malverde, Wikipedia,
http://en.wikipedia.org/wiki/Jesus_Malverde (last visited
October 6, 2006). The district court was correct in placing
little weight on the facsimile's presence but nevertheless
recognizing it as part of the totality of circumstances. Like
the district court, we consider it as one of many factors but
give it very little weight.
No. 20050468
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Defendant's two stops and short stays at the same location around
the same time on successive days, which the officers testified
was consistent with drug dealing. The two suspicious objects
that Officer Steed observed in Defendant's car, along with the
inferences the officers drew as a result of their experience,
further strengthen the reasonableness of the officers' suspicion
when considered in the context of the tips.
¶19
Notwithstanding our conclusions, we note that this is a
close case. The totality of the facts barely meets the threshold
of reasonable and articulable suspicion. We thus emphasize that
it is only because of the sum of all the available facts that we
affirm the court of appeals' decision. The absence of any one of
the facts well have dictated a different conclusion. We also
point out that the officers in this case could have done many
things to shore up their suspicions about Defendant before
detaining him. For example, they could have verified the tips
they had received, followed Defendant from the condominium
complex to do further surveillance of his activities, inquired as
to what apartment he had visited, and asked whether he was the
owner of the vehicle. Any of these would likely have provided
more substantial probable cause to justify obtaining a warrant
for Defendant's person. This decision is not intended to give
police officers permission to "seize now, ask questions later"
without first conducting an adequate investigation.
¶20
We conclude that the officers had a reasonable
suspicion to detain Defendant temporarily for questioning about
his possible involvement in drug-related activity. We next
address Defendant's challenge to the officers' subsequent action
of requiring him to discharge drugs from his mouth.
III. REASONABLENESS OF SEARCH
¶21
The Fourth Amendment to the United States Constitution
protects "[t]he right of the people" against "unreasonable
searches and seizures" and generally requires police to obtain
warrants before instigating a search. U.S. Const. amend. IV.
Nevertheless, police officers may be excused from the warrant
requirement where exigent circumstances "`require that the search
be performed before a warrant can be obtained.'" See State v.
Palmer, 803 P.2d 1249, 1251 (Utah 1990) (quoting State v.
Christensen, 676 P.2d 408, 411 (Utah 1984)). When relying on the
exigent circumstances exception, the State bears the burden of
proving that the search was lawful. Id. at 1251. In Schmerber
v. California, 384 U.S. 757, 770­71 (1966), the Supreme Court
announced three requirements a warrantless search must satisfy in
order to be lawful. The three requirements are (1) a clear
indication that evidence will be found; (2) exigent circumstances
9
No. 20050468

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that justify the intrusion; and (3) a reasonable method of
search. Id. We hold that each of these requirements was
satisfied and that the officers effected a proper warrantless
search of Defendant.
A. Clear Indication
¶22
The first requirement under the exigent circumstances
exception is that the police must have a "clear indication" that
the desired evidence will be found as a result of the search.
Id. at 770. This concept was introduced in Schmerber, where a
police officer arrested the defendant for drunk driving. Id. at
758-59. Upon arrest, the police officer ordered a warrantless
blood sample to test the defendant's blood-alcohol content. Id.
The defendant challenged the admissibility of the blood sample,
claiming that his blood was drawn in violation of his Fourth
Amendment rights. Id. at 759. The United States Supreme Court
held that the police officer could lawfully order a warrantless
blood sample where the officer had "a clear indication" that the
test would yield the desired evidence and where the warrantless
test was necessary to prevent the destruction of evidence. Id.
at 770.
Although the Schmerber Court did not clearly explain what it
meant by "clear indication," it appears to have imposed a
heightened standard for determining probable cause that evidence
will be found in the context of searches involving bodily
intrusions. Id. Indeed, Schmerber recognized that the clear
indication necessary to instigate a bodily intrusion is a higher
standard than the probable cause necessary to conduct a bodily
search incident to an arrest. Id. at 769-70. The Court
explained that the considerations justifying a search incident to
an arrest, such as officer safety and the discovery of concealed
evidence, "have little applicability with respect to searches
involving intrusions beyond the body's surface." Id. Moreover,
Justice Brennan later explained Schmerber by noting that "[t]he
intrusion perhaps implicated Schmerber's most personal and deep-
rooted expectations of privacy, and the Court recognized that
Fourth Amendment analysis thus required a discerning inquiry into
the facts and circumstances to determine whether the intrusion
was justifiable." Winston v. Lee, 470 U.S. 753, 760 (1985).
This heightened expectation of privacy means that sufficient
probable cause exists only with "a clear indication that evidence
will be found." Schmerber, 384 U.S. at 770.
¶23
On the facts of this case, we find that Officers Wahlin
and Steed had a clear indication that a search would uncover
drugs concealed in Defendant's mouth. While questioning
Defendant about the presence of drugs, Officer Wahlin noticed
No. 20050468
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Defendant's nervousness and both officers witnessed him
manipulating small objects in his mouth. From their training and
experience, these acts indicated to the officers that Defendant
had drugs in his mouth, wrapped in plastic or balloons, and was
attempting to swallow them in order to conceal them from the
police. We note that if the officers had possessed no evidence
other than the facts that justified their initial detention of
Defendant, they would not have had sufficient evidence to search
his mouth. Rather, it was Defendant's reaction to the officers'
request to open his mouth, in addition to the earlier factors,
that gave rise to a clear indication. As suggested by Schmerber,
a search of Defendant's mouth for drugs then became "relevan[t]
and likely [to] succe[ed]" in producing evidence against him.
Id. at 770.
¶24
Defendant contends that because the officers had not
witnessed him placing any drugs in his mouth or actually seen the
drugs in his mouth, they did not have a clear indication that
they would find drugs. However, we cannot separate Defendant's
later behavior from the earlier evidence, such as the repeated
short stops and stays, the tips, and the items in his car. It
was the totality of these facts that led the officers to
recognize a clear indication of drug-related activity. When
determining whether they have a clear indication, police officers
are not required to be absolutely certain or be able to guarantee
that drugs will be found. Rather, "`we deal with
probabilities[,] . . . factual and practical considerations of
everyday life.'" State v. Dorsey, 731 P.2d 1085, 1088 (Utah
1986) (quoting Brinegar, 338 U.S. at 175). Having found that the
first requirement of the Schmerber test is satisfied in this
case, we turn to the second.
B. Exigent Circumstances
¶25
Under the second requirement of Schmerber, police
officers must "reasonably . . . believe[] that [they are]
confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threaten[s] the
destruction of evidence." Schmerber, 384 U.S. at 770 (citation
and internal quotation marks omitted). The State argues that the
need to protect Defendant from an accidental overdose presents an
additional exigency under the circumstances before us. In either
case, the exigency turns on whether the balloons of drugs would
have passed safely through Defendant's digestive and excretory
systems, such that the evidence would have been preserved. For
example, in State v. Palmer, 803 P.2d 1249 (Utah 1990), the court
of appeals reversed a denial of a motion to suppress x-ray
evidence that police had obtained from the defendant, who was
accused of stealing and swallowing a diamond ring. Id. at 1251,
11
No. 20050468

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1253. There, the court held that exigent circumstances did not
exist because the ring would have passed safely through the
defendant's system. Id. Likewise, in People v. Bracamonte, 540
P.2d 624 (Cal. 1975), the defendant had been seen swallowing two
balloons of drugs. Id. at 626. The police forced her to take an
emetic solution to induce regurgitation of the balloons. The
California Supreme Court reversed the defendant's conviction
because her Fourth Amendment rights had been violated since the
balloons would have passed through her body "by the ordinary
processes of nature." Id. at 631. We reached a similar
conclusion in State v. Hodson, 907 P.2d 1155, 1158 (Utah 1995),
where we recognized that plastic-wrapped heroin chips would have
followed one of two paths---absorption into the bloodstream or
intact passage because of their packaging. There, we held that
the officer's extreme use of force was not justified by the
exigency presented. Id. at 1159.
¶26
The parties here make much of the fact that the
officers did not know how the drugs were packaged and therefore
did not know whether the drugs could safely pass through the
Defendant's body. The officers themselves testified that while
they were unsure, their experience told them that the drugs would
most likely be double-wrapped in plastic and a balloon. In
Hodson, this court addressed these concerns, stating "[t]here is
considerable indication . . . that drug dealers commonly seek to
secrete drugs by means of swallowing, and it does not seem likely
that they would routinely risk their own safety or lives." Id.
at 1158 (citations omitted). Thus, in this case, we may assume
the officers' constructive knowledge of the fact that the drugs
were most likely safely packaged.
¶27
We think that Palmer and Bracamonte are factually
distinguishable. In these cases, the contraband or evidence had
already been swallowed and put beyond the reach of ordinary
search techniques. The police then resorted to more intrusive
measures, such as an x-ray scan or the compulsory administration
of an emetic solution. Here, Defendant had not yet swallowed the
packets of drugs when the officers grabbed his arms and bent his
body forward to prevent the swallowing of the evidence. We agree
with the California Supreme Court's statement in Bracamonte that
"[t]here is, of course, no right to conceal or destroy evidence
of criminal conduct." 540 P.2d at 631; see also United States v.
Holloway, 906 F. Supp. 1437, 1441­42 (D. Kan. 1995) (stating,
"[t]o belabor the obvious, there is no constitutional right to
destroy or secret evidence" and that the contrary proposition
"defies both logic and common sense." (citing United States v.
Corral-Corral, 899 F.2d 927, 930 (10th Cir. 1990))). The
Bracamonte court also recognized that "the mouth is not a sacred
orifice" and as such, "attempts to swallow evidence can be
No. 20050468
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prevented . . . as long as excessive force is not employed." Id.
at 632 n.6 (citations omitted). We agree that officers are not
forbidden to take positive action to prevent the concealment of
evidence, even if that evidence may become available in another
form in the future, so long as the method of prevention is
commensurate with the risk of concealment.
¶28
Relying heavily on Hodson, Defendant argues that no
exigent circumstances were present because the packets of drugs
would have passed through his digestive tract, and therefore any
police action to prevent Defendant from swallowing the drugs was
impermissible. Defendant's position is contrary to the central
holding of Hodson. In Hodson, the police officers put a gun to
the suspect's head, dragged him to the ground, put an arm around
his neck, and then inserted their fingers into his mouth to
retrieve chips of heroin. 907 P.2d at 1156. In addressing the
officers' actions, we stated:
No emergency or exigency justifies the
use of force at this level to preserve
evidence which would be readily (if
inconveniently) accessible through nonviolent
means.
In the absence of an urgent need to
preserve evidence, there cannot be a
justification for the significant risks to
health and safety posed by using the kind of
force in this case to get a suspect to spit
out what is believed to be a mouthful of
drugs.
Id. at 1158 (emphasis added).6 Our decision to reverse in that
case was limited to the kind of extreme force used in that
specific situation. See id.; see also id. at 1160 (emphasizing
the "fact-sensitive nature of this decision") (Zimmerman, C.J.,
concurring).
¶29
As the above-quoted language suggests, Hodson
contemplates a range of circumstances involving different degrees
of exigency and different levels of force. There is, of course,

6 The court of appeals, in its decision below, called
attention to this same language and reached a similar conclusion.
State v. Alverez, 2005 UT App 145, ¶¶ 31-32, 111 P.3d 808. We
agree with its assessment of Hodson's meaning and go a step
further in explaining what Hodson means in reference to the
relationship between exigent circumstances and reasonable force.
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some minimum threshold level of exigency that must be present, as
well as a maximum amount of allowable force. However, these two
factors should not be viewed in a vacuum. We read Hodson to mean
that the propriety of a particular level of force is dependent,
in part, on the degree of exigency presented by the
circumstances. This contingency creates a kind of sliding scale,
where low degrees of exigency will justify only low levels of
force. Accordingly, a high level of exigency may support a
higher use of force. The correct frame of reference, then, is
not a simple yes-or-no inquiry into whether exigent circumstances
exist. Rather, the correct inquiry is whether the level of
exigency, given all the circumstances, including the risks to a
suspect's health and safety, justifies the kind of force used by
the police officers. We therefore conclude that a threshold
level of exigency was present in this case, since the officers
were not required to stand back and allow Defendant to conceal
evidence if his actions could be reasonably prevented. This
exigency was not of the highest degree, and therefore only a
lesser use of force was reasonable to prevent the concealment of
the evidence.
C. Reasonable Force
¶30
Having concluded that the State has demonstrated both a
clear indication and exigent circumstances, we now address
whether the police officers conducted their search in a
reasonable manner. In Winston v. Lee, 470 U.S. 753, 761­62
(1985), the United States Supreme Court gave us a three-part test
to determine whether the search method used by the police was
reasonable. The test weighs (1) "the extent to which the
procedure may threaten the safety or health of the individual"
and (2) "the extent of intrusion upon the individual's dignitary
interests in personal privacy and bodily integrity" against
(3) "the community's interest in fairly and accurately
determining guilt or innocence," which embraces the need to
preserve evidence. Id.
1. Threat to Health or Safety
¶31
One of the most important factors in the Winston
analysis is the threat the search poses to the health or safety
of the suspect. Id. at 761. A search that is supported by
probable cause, but "endangers the life or health of the
suspect," may nevertheless be unjustifiable. Id. This test has
evolved under two principal contexts. The first is the use of
serious medical or surgical interventions or drug-induced
vomiting to acquire evidence. Id. at 766 (holding that surgical
extraction of a bullet from suspect's body in order to produce
evidence of his involvement in a robbery was unreasonable because
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of unknown risks from the procedure); Schmerber, 384 U.S. at
771­72 (holding that extraction of blood from defendant in order
to measure alcohol was reasonable because the procedure is common
and presents little risk or pain); Rochin v. California, 342 U.S.
165, 172­174 (1952) (stating that forced administration of an
emetic solution through a tube into the defendant's stomach was
police conduct that "shocks the conscience"); Bracamonte, 540
P.2d at 631 (finding unreasonable a procedure where the defendant
was restrained, a tube was forced down her throat until she said
it was too painful, at which time she consented to drink an
emetic solution, which caused her to vomit balloons filled with
heroin). The second is the application of force to the throat of
a suspect in order to prevent the swallowing of evidence. In
Hodson, this court, using the Winston test, rejected the use of a
chokehold in order to prevent the swallowing of evidence because
of the dangers of restricting the flow of air or blood.7 907
P.2d at 1158.
¶32
In this case, the officers did not use an invasive
medical procedure or apply any pressure to the throat of
Defendant. Here, the officers grabbed the arms and wrists of
Defendant and twisted them, which, as they expected, forced him
to bend forward, making it more difficult for him to swallow the
drugs. There was no threat to Defendant's health or safety.
While he may have suffered momentary discomfort, there was no
significant pain, lasting injury, or peril to his life. Indeed,
the officer's force is indistinguishable from the use of force
incidental to that used in an ordinary arrest. Where the suspect
has his or her arms pulled behind his or her back, is handcuffed,
and has his or her body pressed against some hard surface for the
purpose of a brief frisk.
¶33
We also reject the notion, raised by counsel for
Defendant, that there was some intrusion into his body by the
police officers. The facts state that Defendant, though
obviously under duress, himself spat out the balloons of cocaine
and heroin and that the officers did not reach inside his mouth
to retrieve them.

7 We note that courts in other jurisdictions have decided
this issue differently. Some, like California, have upheld
applications of force to the throat that fall short of choking.
People v. Cappellia, 256 Cal. Rptr. 695 (Ct. App. 1989); People
v. Mora, 47 Cal. Rptr. 338 (Dist. Ct. App. 1965); see also State
v. Desmond, 593 So. 2d 965 (La. Ct. App. 1992).
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2. Intrusion Upon Dignitary Interests
¶34
The second factor of the Winston test is the extent of
intrusion into the "individual's dignitary interests in personal
privacy and bodily integrity." Hodson, 907 P.2d at 1157. The
Winston Court provided a few examples of police actions that,
while not harming the suspect physically, would intrude on the
individual's privacy and dignity. 470 U.S. at 762. These
included intruding into the suspect's living room, eavesdropping
on phone calls, or compelling the suspect to go to the police
station with the officers. Id.
¶35
We find that Officers Wahlin and Steed intruded upon
Defendant's dignitary interests in privacy and security; however,
Winston does not prohibit all such intrusions. Indeed, nearly
all arrests intrude upon a suspect's interest in personal privacy
and bodily integrity. Therefore, the question is not so much
whether there was an intrusion, but whether the degree of
intrusion was inappropriate. In this case, an average citizen
would feel that public questioning in an accusatory manner by
police intruded upon his privacy and security. The degree of
damage to the "individual's interest in human dignity" would be
heightened if, as in this case, the officers then placed their
hands on the suspect's body and twisted the subject into an
uncomfortable position to induce compliance. Winston, 470 U.S.
at 762 n.5 (citation and internal quotation marks omitted).
While the officers' actions in this case should be recognized as
invasive, we do not think it was to an inappropriate degree. The
police action here was not an invasion of Defendant's home, the
interior of his body, or into purely private matters. Defendant
was engaged in criminal activity in a public place, and the
officers had a right, and even a duty, to intervene. Thus, we
acknowledge that an invasion of Defendant's dignitary interests
occurred in this case, but the invasion was reasonable under the
circumstances.
3. The Community's Interest and the Need to Preserve Evidence
¶36
Under the third Winston factor, we weigh both of the
factors mentioned above against the public interest in "fairly
and accurately determining guilt or innocence." Winston, 470
U.S. at 762. The community's interest includes the need to
preserve evidence necessary to establish culpability in the
criminal justice system. Id. at 765. This community interest
includes preventing the concealment of evidence. The
administration of justice and crime prevention require convenient
access to evidence where this access can be provided in a
reasonable fashion. To a large extent, an examination of this
factor replicates our earlier analysis of exigency. While
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Officers Wahlin and Steed could have allowed Defendant to swallow
the drugs, which would have reappeared in some form in the
future, they were not required to do so where the method of
preventing the concealment was a reasonable one.
¶37
Also, Officers Wahlin and Steed had no other conclusive
evidence of criminal wrongdoing; retrieving illegal substances in
the possession of Defendant was ultimately the only way to
establish the truth of the charges against him. Unlike in
Winston, there was no alternative evidence available at the time
of the search to establish the culpability of Defendant for
possession of controlled substances with the intent to
distribute. See id. at 766 (finding that since additional
evidence, such as the testimony of the robbery victim, was
available, there was no "compelling need" to surgically extract a
bullet from the defendant's shoulder). The officers retrieved
the required evidence in a reasonable manner, without endangering
Defendant or subjecting him to an excessive invasion of privacy.
Relying on our conclusion that exigent circumstances were present
in this case to justify some use of force, we hold that the
officers were justified in resorting to the level of force used
here to compel Defendant to spit out the drugs.
CONCLUSION
¶38
In summary, (1) the officers here had a reasonable
articulable suspicion to approach Defendant, seize him, and ask
him questions about criminal activity; (2) they likewise had a
clear indication that drugs would be found; and (3) the method of
their search was reasonable. We therefore affirm the court of
appeals' decision.
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¶39
Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham's opinion.
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