(dissenting)—I must respectfully dissent from this opinion, the result of which is to keep from evidence a probable drug dealer’s goodly supply of heroin. In doing so, I fully appreciate the trial judge made specific findings on conflicting testimony that defendant was “choked” so that “[he] could not and/or had extreme difficulty breathing during this 30 to 60 second time period.” The officers vehemently denied this, testifying his throat was grasped in such a way that only his swallowing was restricted. Defendant himself admitted he was neither hurt nor even rendered unconscious by the procedure and that all he had to do was spit up the balloons or allow them to be removed from the roof of his mouth.
I realize that we are foreclosed by the trial judge’s finding in this regard, but I note the formal findings he ultimately signed, in fixing the exact time during which defendant’s breathing was impaired, go far beyond anything' he said in orally granting the motion to suppress. Further, in that oral decision he appears to quote two California Supreme Court Justices who were dissenting from that court’s refusal to review a decision of the California District Court of Appeals, which had affirmed a superior court *874conviction of one Antonio Rochin, People v. Rochin, 101 Cal. App. 2d 140, 143, 149, 150, 225 P.2d 1, 913, 917 (1951). See also Rochin v. California, 342 U.S. 165, 167, 96 L. Ed. 183, 187, 72 S. Ct. 205, 25 A.L.R.2d 1396 (1952). Based thereon, he concludes there had been an unreasonable search and seizure, saying “We’re not going to go in and force a man against his own will to give it up.” I believe this evidences a misconception of the law applicable to attempts to destroy evidence and confuses Fifth Amendment considerations with concerns of due process.
As Division One of this court has already made clear in State v. Young, 15 Wn. App. 581, 550 P.2d 689 (1976), the use of reasonable force to compel or induce the disgorgement of contraband from a subject’s mouth is not proscribed. I do not believe the force resorted to here was unreasonable, nor do I believe that a momentary restriction of the air supply, as in the instant case, presents any real danger of serious bodily harm. I feel safe in that assumption because defendant did not consult a physician and chose not to favor the trial court with any medical testimony to that effect. The burden of producing such testimony was, of course, upon the defendant, and had he come forth with such evidence I would have no hesitation in joining the majority to condemn such a practice. On the contrary, however, defendant appears to have suffered only a momentary discomfort which he could have avoided in the first place or terminated much sooner by simply complying with the lawful demands of the officers. Defendant had absolute control of the situation. If he has any complaints at all it is a classic example of “self-inflicted harm.”
If the majority hope by this decision to discourage future violent confrontations between police officers and suspects, a concern expressed in People v. Bracamonte, 15 Cal. 3d 394, 540 P.2d 624, 124 Cal. Rptr. 528 (1975), I doubt it will achieve that purpose. On the contrary, I suspect the sanction of suppression will not necessarily deter conscientious officers in their attempts to remove from the marketplace *875—all thought of conviction aside—any supply of heroin which comes to their attention as it did in this case. The holding may be taken as an invitation to such drug violators to escape justice by popping contraband into their mouths and then claiming they were “choked.” I submit that if we tell them instead that such a device will not work, they will themselves choose to avoid such measures as were taken here.
As stated in State v. Young, supra, what is reasonable or unreasonable force should depend upon the facts of each case. Here the police were faced with no spur of the moment attempt by a teen-aged experimenter to rid himself of one or two capsules of a fairly innocuous, though illegally possessed, substance. Rather, it was a resort to a common practice among heroin dealers by an individual the officers had probable cause to believe was peddling heroin.1 Neither do I see the police conduct here as at all approaching that which was involved and condemned in Rochin v. California, supra. Again I stress that, except for some minor discomfort, the defendant emerged from the encounter completely unscathed.
Finally, I continue to find unpalatable the application of the exclusionary rule as a remedy for what this court has found to be an invasion of defendant’s constitutional rights2 —yet another case of penalizing the innocent public for the “constable’s blunder.” While necessarily constrained by higher authority to continued use of this sanction, I confess I share Chief Justice Burger’s views as to its continued value and efficacy except in a few selected cases, as expressed in his concurring opinion in Stone v. Powell, 428 U.S. 465, 496-97, 49 L. Ed. 2d 1067, 1089, 96 S. Ct. 3037 (1976):
In evaluating the exclusionary rule, it is important to *876¡bear in mind exactly.what the.rule accomplishes/ Its : function-is simple—the exclusion of truth from the fact-finding process. . . . The operation of the rule is therefore unlike that of the Fifth Amendment’s protection ' against compelled self-incrimination. A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect’s will has been overborne, a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability. This is not the case as to reliable evidence—a pistol, a packet of heroin, counterfeit money, or the body of a murder victim—which may be judicially declared to be the result of an “unreasonable” search.
"The reliability of such evidence is beyond question; its probative value is certain.
(Citation omitted.) I share also Justice Burger’s concern that
Legislatures are unlikely to create statutory alternatives, or impose direct sanctions on errant police officers or on the public treasury by way of tort actions, so long as persons who commit serious crimes continue to reap the enormous and undeserved benefits of the exclusionary rule’. And of course, by definition the direct beneficiaries of this rule can be none but persons guilty of crimes.
Stqne v. Powell, supra at 500-01.
If, in fact, police officers are found in a given case to have exceeded reasonable force to the point of brutality and thus, to have committed an assault upon a suspect, I submit he has a ready made remedy—a suit for damages. To those who would suggest that the remedy is merely illusory because convicted heroin possessors and dealers will not find a sympathetic jury, I can only answer “he has himself to blame.”, I would reverse.
Fetition for rehearing denied March 11, -1977.
Review denied by Supreme Court July 27,1977.
The affidavit for search warrant describes several instances in which defendant possessed substantial numbers of heroin-filled balloons and of his offers to sell them. It is, I believe, common knowledge the substance is kept in balloons so it can be disposed of by swallowing, hopefully without ill effect.
The trial court suppressed the heroin as the fruits of an unconstitutional search, whereas this court’s opinion condemns the police action as a deprivation of defendant’s right to due process.