COCAINE SEIZURE UPHELD ON APPEAL.

Byline: Karen Maeshiro Staff Writer

LANCASTER - A state appellate court has ruled that a sheriff's deputy didn't use excessive force in applying a chokehold to a Palmdale motorist who stuffed a bag of rock cocaine into his mouth.

The court upheld the conviction of Aaron Sean Holman, 33, who contended that excessive force was used in retrieving the plastic bag from his mouth in violation of the Fourth Amendment proscription against unreasonable search and seizure, and so the drugs should have been kept out of court.

``(W)e reject Holman's suggestion that every application of force to the throat is per se unreasonable under the Fourth Amendment,'' wrote a judge speaking for the panel that ruled in the 2nd District Court of Appeal. ``Aside from the fact that the deputy grabbed Holman by the neck to force him to the ground, not to choke him, there is no evidence at all to suggest the force was excessive - and the trial court's finding is that it was not.

``Whatever merit there may be to the contention that choking is presumptively unreasonable, the point is irrelevant in light of the fact that Holman wasn't choked.''

Holman was sentenced last April to four years in prison after pleading no contest to one count of possession of cocaine base for sale.

He entered his plea after his motion to suppress evidence of the cocaine was denied. Prosecutors agreed to dismiss a count of resisting a police officer.

Holman appealed, contending that his motion to suppress the cocaine evidence should have been granted.

Officials said a deputy stopped Holman when he was driving in an alley behind the Palmdale Best Buy electronics store in December 2002. Holman was driving a car that had illegally tinted windows and no front or rear license plates, officials said.

When Holman was unable to provide registration papers, Deputy Scott Graham had Holman get out of his car and stand by the patrol car while the deputy checked the registration.

While checking, Graham said he saw Holman bend down, reach into his ankle area and then stand up with something in his hand that he apparently was trying to conceal.

Graham said he told Holman to drop whatever he had in his hand, but Holman reacted as if he didn't understand. Graham said he then told him to turn around and to place his hands on the hood of the patrol car.

Holman complied, and Graham saw what appeared to a plastic bag, possibly containing drugs, in Holman's left hand.

When Holman once again ignored a command to drop the item, Graham grabbed Holman by the left arm, but Holman shoved the bag into his mouth.

Graham said Holman ignored an order to spit it out. The deputy said he put Holman's hands behind his back, jumped on him, put an arm around his neck in what he called a ``control hold'' and ``took him to the ground.''

During the struggle, which lasted about a minute until backup deputies arrived, Holman spat out the bag, which contained 28 individually wrapped rocks of cocaine.

The trial judge denied Holman's motion to suppress the evidence, finding no impropriety with regard to the stop or the subsequent events.

The trial judge found the deputy acted ``to prevent ... what could have been reaching for a weapon initially (and) certainly, after the observation was made of the baggie, subsequently attempting to prevent destruction of evidence. It appears reasonable for the deputy to have taken the steps (he took).''

The trial court also said: ``There is no prohibition against the use of some force to prevent the swallowing, destruction (or) hiding of evidence. It does not appear, even with the times testified to of the 20- to possibly 30-second amount of time with a hand around the neck, that was solely for purposes of what one might (call) 'choking out,' as opposed to taking down or restraining and attempting to take into custody as indicated.''

The appellate court upheld the trial court's rejection of Holman's contention that excessive force was used to compel expulsion of the baggie.

The fact that Holman spat out the baggie is no evidence that the deputy's hold on Holman's neck was ``solely for purposes of'' securing evidence, as opposed to ``restraining and attempting to take (Holman) into custody,'' the appellate court held.

``For this reason, the cases relied on by Holman - all of which consider chokeholds that were used to force expulsion of contraband - are inapposite,'' the appellate panel ruled.

Karen Maeshiro, [phone]

karen.maeshiro(at)dailynews.com