dissenting.
The district court found that the police used a variety of methods to extract evidence they believed the defendant, Harris, was attempting to swallow. Among those various methods, the court found that the police applied a lateral vascular neck restraint (LVNR) to Harris. Because of the life-threatening nature of the LVNR, I cannot agree with the majority’s decision and would suggest that the use of the LVNR as a method of securing evidence is unreasonable.
The U.S. Constitution and the Nebraska Constitution provide that persons have a right to be secure in their persons against unreasonable searches and seizures. U.S. Const, amend. IV; Neb. Const, art. I, § 7. In addressing whether a search is reasonable, it is imperative that we recognize that a method and manner of search and seizure may implicate a person’s “expectations of privacy and security of such magnitude that the intrusion may be ‘unreasonable’ even if likely to produce evidence.” (Emphasis supplied.) Winston v. Lee, 470 U.S. 753, 759, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985). The need to collect and preserve evidence is a compelling state interest, but the Fourth Amendment and our state’s counterpart serve as a constraint against unjustified intrusions or intrusions made in an improper manner. See People v *303Holloway, 416 Mich. 288, 330 N.W.2d 405 (1982), cert. denied 461 U.S. 917, 103 S. Ct. 1900, 77 L. Ed. 2d 288 (1983).
The constitutional constraint on police action is “reasonableness.” I submit that the majority’s opinion impermissibly broadens the scope of “reasonableness.” From the decision announced today, the majority sends the message that the police may act with unfettered discretion in the pursuit of evidence.
The U.S. Supreme Court, in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), expressed a three-part analysis to apply when an individual has challenged the reasonableness of a search under the Fourth Amendment to the U.S. Constitution. First, the police must have a clear indication that the evidence sought will be found in the place to be searched; second, the police must have a warrant or there must exist exigent circumstances to justify the warrantless search; and third, the method used and the manner in which the search is conducted must be reasonable. See, Winston v. Lee, supra; People v. Holloway, supra.
In Schmerber, the Court addressed the reasonableness of a nonconsensual blood sample taken by medical personnel, at the direction of a police officer, from a person who was under arrest for driving while intoxicated. In applying the three-part analysis, the Court concluded that the blood sample was a reasonable means of securing evidence. First, the Court stated that the strong odor of alcohol on the defendant’s breath after the accident gave the police a clear indication that if tested, the defendant would have a high blood alcohol level. Second, the Court found that the evidence the police were seeking was capable of disappearing over a period of time and that time had already elapsed while transporting the defendant to the hospital. Finally, the Court found that the method and manner of collecting the evidence was reasonable because a blood test is the best method to secure this type of evidence, the test was administered by medically trained personnel while at the hospital, and taking blood tests is a routine medical procedure which usually involves little risk of harm, trauma, or pain. The Court cautioned that this procedure was a minimal intrusion that was administered under “stringently limited conditions” *304and that its opinion does not permit more “substantial intrusions, or intrusions under other conditions.” 384 U.S. at 772.
Subsequently, the Court, in Winston, held that surgery to remove a bullet from the defendant was an unreasonable method of collecting evidence. The Court reiterated that the Fourth Amendment represents a constraint on searches and seizures and that a search must be justified and the method and manner employed must be reasonable. The Court stated that although there was a clear indication that the bullet was there, the method of extracting the bullet created a substantial threat to the defendant’s health and safety. In reaching that conclusion, the Court compared the procedure and risks associated with taking a blood sample to those associated with general surgery. The Court stated that unlike taking a blood sample, surgery is not a routine medical procedure, and surgery necessarily involves a risk of harm, trauma, and pain to the patient. See Jones v. U.S., 620 A.2d 249 (D.C. App. 1993) (stating that the use of the Heimlich maneuver to force the defendant to expel evidence he was attempting to swallow was reasonable because the Heimlich is a commonly used procedure that does not involve any risk of serious harm).
The method employed to effect a search is a distinct consideration from the manner in which it is employed. A method may be reasonable or unreasonable, and a reasonable method may be executed in a reasonable or an unreasonable manner.
Without commenting on the reasonableness of the other maneuvers employed by the Omaha police in an effort to recover evidence from Harris, I would hold that the LVNR is an unreasonable method to search for evidence. The LVNR constitutes a substantial threat to an individual’s health and safety, and such a threat is not outweighed by the State’s interest in collecting evidence.
The district court found that the LVNR was applied to Harris during the struggle to retrieve evidence that the police believed Harris was attempting to swallow. At the suppression hearing, Lieutenant Dunning, a training officer with the Omaha Police Division, testified that there are three levels of the LVNR and *305that any of those three levels can cause unconsciousness within 3 to 7 seconds. Further, Lieutenant Dunning stated that because unconsciousness is a likely result, the officers are trained in CPR so they may revive a person who does not revive on his own after the LVNR has been applied.
Additional evidence regarding the LVNR was not admitted into evidence because the district court sustained the State’s relevancy objection. However, defendant’s counsel made an extended offer of proof on the LVNR. This offer of proof particularly illuminates the issue of whether the LVNR should ever be a permissible method of recovering evidence. According to the offer of proof, the LVNR is a special maneuver that the police are regularly trained and retrained on how to use. The intended purpose of the LVNR is to render the subject unconscious, and this result occurs within 3 to 7 seconds of continuous application. The subject is expected to revive, but if not, the police are trained in CPR so they may revive the subject.
The offer of proof also includes a description of four physiological factors that are involved when the LVNR is applied. Those four factors are venous compression, Valsalva’s maneuver, carotid compression, and vagus stimulation. All four factors restrict or cut off the flow of blood to and from the brain, or relax certain nerves, which causes the heart to stop beating.
The severity of applying the LVNR is emphasized by the testimony given by the Omaha chief of police, James Skinner. Skinner testified that the LVNR is approved for defensive use only. The police chief stated that the LVNR is to be used as a defense maneuver against an “individual who is engaged in an active assault or attempted assault on the officer.” During a redirect examination of the police chief, the following was recorded: “[Defense counsel:] Is the lateral vascular neck restraint an approved procedure in keeping a suspect from swallowing evidence? A. No, it is not.” This testimony is corroborated by the police training manual. Regarding the LVNR, the manual states:
*306WHEN:
The lateral vascular neck restraint shall be applied only to those suspects who are actively resisting a police officer. This active resistance should be of such a degree that the officer would fear injury to himself/herself or others if the officer did not apply the restraint.
DEFENSIVE USE ONLY:
The lateral vascular neck restraint shall be considered a defensive hold and shall be used for no other purpose.
(Emphasis in original.)
There is little evidence to support an argument that Harris was engaged in any aggressive behavior. According to the testimony of Officer Caldwell, who initially grabbed Harris by the throat to retrieve the evidence, she was never in fear for her safety. The only testimony indicating that safety was an issue was that of an Officer Atkinson, who stated that he always fears for his safety when a suspect is not complying with a direct order. Neither the officers involved in the struggle nor the detention technician who observed the struggle saw Harris attempt to strike, hit, or attack any of the officers.
The LVNR is designed and intended to restrict or cut off the flow of blood and to disturb the normal beating of the heart. Its use should be justified only when the police are confronted with force or threat of force of equal magnitude. Common sense dictates that an act designed to restrict the flow of blood and interrupt a normal heartbeat is an act that constitutes a substantial threat to an individual’s health and safety. Such a procedure is not a routine occurrence. The retrieval of evidence does not justify the use of the LVNR.
The majority opinion notes that the district court did not “explicitly” state whether Harris lost consciousness and implies that the officers did not cut off Harris’ blood or air supply because the district court found the force applied to Harris was not “deadly.” The fact that Harris remained conscious does not make the use of the LVNR reasonable, and the district court’s finding that the force applied to Harris was not “deadly” does not necessarily lead to the conclusion that *307the use of the LVNR was reasonable.
Several courts have held that application of force to a person’s throat and mouth area is a reasonable method of preventing a person from swallowing evidence. Significantly, these cases also noted that the air or blood supply of the particular defendant had not been affected by the methods employed by the police officers. See, People v. Cappellia, 208 Cal. App. 3d 1331, 256 Cal. Rptr. 695 (1989) (finding that police actions were reasonable when the officer placed his hands at the defendant’s throat to prevent swallowing, and stating that the defendant’s breathing was not impaired); People v Holloway, 416 Mich. 288, 330 N.W.2d 405 (1982), cert. denied 461 U.S. 917, 103 S. Ct. 1900, 77 L. Ed. 2d 288 (1983) (stating that it was reasonable to apply pressure to the defendant’s jaw and throat and force his mouth open while another officer used his fingers to get the evidence out of the defendant’s mouth, and noting that these actions did not restrict or cut off the defendant’s air or blood supply); State v. Taplin, 36 Wash. App. 664, 676 P.2d 504 (1984) (stating that the police actions were reasonable and did not obstruct the defendant’s breathing); State v. Williams, 16 Wash. App. 868, 560 P.2d 1160 (1977) (stating that although it is reasonable for police to place their hands around an individual’s neck and mouth area to prevent the swallowing of evidence, the police may not cut off an individual’s breathing or obstruct the blood flow in an effort to retrieve evidence). The normal flow of air and blood is an important consideration when determining whether a search was unreasonable. In most of these cases, the courts have examined whether the result of the police actions was the restriction of blood and air.
In People v. Sanders, 268 Cal. App. 2d 802, 74 Cal. Rptr. 350 (1969), the court held that the police officer violated the defendant’s due process rights when he executed a judo choking technique to force the defendant to expel what was in his mouth. The court discussed a variety of things that may be done to a person to prevent him from swallowing evidence, but drew the line at choking. The judo technique applied to the defendant was particularly offensive to the court because it involved applying pressure to both the front and back of the *308neck area, specifically the carotid artery. The court found that such a procedure eventually stops the flow of blood and causes the person to pass out. The court stated that any “application of force to one’s neck or throat calculated to, and which does, as stated by the officer, stop ‘the blood flow to the head, and then he passes out’ constitutes choking or its equivalent.” 268 Cal. App. 2d at 805, 74 Cal. Rptr. at 351-52. (Contrary to the majority’s implication, it does not appear that this defendant was rendered unconscious by the application of the judo choke hold.) In California, the courts have uniformly held that use of a choke hold to retrieve evidence is unreasonable. See, id.; People v. Jones, 209 Cal. App. 3d 725, 731, 257 Cal. Rptr. 500, 504 (1989) (stating that the police used unreasonable force when they applied a “chokehold,” as described in Sanders, supra, even though the defendant did not suffer a loss of air or blood flow).
In this case, the particular method employed by the police officers is designed and intended to restrict the flow of blood and to interrupt the normal beating of the heart. As with the proposed surgery in Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985), and the choke holds discussed in Sanders and People v. Jones, the Omaha police used a particular method that involves a substantial threat of serious injury to the defendant and is therefore unreasonable. The substances obtained thereby should not have been received in evidence.
Shanahan and Lanphier, JJ., join in this dissent.