#27951-r-DG 2018 S.D. 18
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
HI TA LAR, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA
THE HONORABLE JON R. ERICKSON Judge
MARTY J. JACKLEY Attorney General
CAROLINE A. SRSTKA Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
DAVID K. WHEELER Huron, South Dakota Attorney for defendant and appellant.
CONSIDERED ON BRIEFS ON APRIL 24, 2017 OPINION FILED 02/21/18 #27951
GILBERTSON, Chief Justice
[¶1.] Hi Ta Lar appeals his conviction and sentence for unauthorized
ingestion of a controlled substance (methamphetamine). Law enforcement required
Lar to produce a urine sample without first obtaining his consent or a warrant. Lar
argues the circuit court erred by denying his motion to suppress evidence produced
through chemical analysis of the sample. We reverse and remand.
Facts and Procedural History
[¶2.] On January 26, 2015, at approximately 10:55 p.m., Lar was a
passenger in the rear seat of a vehicle that was stopped for an inoperable headlight.
Due to the driver’s nervous appearance, law enforcement deployed a drug dog,
which indicated a controlled substance was present in the vehicle. Law
enforcement searched the vehicle and discovered a metal pipe and 0.498 ounce of
marijuana in a seat pocket behind the front passenger seat. No controlled
substances were found on Lar. Lar, the driver of the vehicle, and two other
passengers were subsequently arrested for possession of two ounces or less of
marijuana and for possession of drug paraphernalia.
[¶3.] Following the arrest, law enforcement required Lar to provide a urine
sample. An officer watched Lar urinate into a specimen cup. Law enforcement did
not obtain a warrant or Lar’s consent prior to doing so. Subsequent testing by the
State Health Lab detected metabolites of methamphetamine in Lar’s urine. Lar
filed a motion to suppress the results of the urinalysis, but the circuit court denied
the motion. In total, Lar faced one count of possessing two ounces or less of
marijuana in violation of SDCL 22-42-6, one count of unauthorized ingestion of a
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controlled substance in violation of SDCL 22-42-5.1, and one count of possessing
drug paraphernalia in violation of SDCL 22-42A-3.
[¶4.] Lar agreed to waive his right to a jury trial on the ingestion charge in
exchange for the State dismissing the possession charges. A court trial was held on
June 14, 2016. The court found Lar guilty of unauthorized ingestion of a controlled
substance. On August 9, the court sentenced Lar to imprisonment for three years. 1
[¶5.] Lar appeals, raising one issue: Whether law enforcement may, without
a warrant, require an arrestee to provide a urine sample as a search incident to
arrest.
Standard of Review
[¶6.] “Constitutional interpretation is a question of law reviewable de novo.”
Kraft v. Meade Cty. ex rel. Bd. of Cty. Comm’rs, 2006 S.D. 113, ¶ 2, 726 N.W.2d 237,
239 (quoting Steinkruger v. Miller, 2000 S.D. 83, ¶ 8, 612 N.W.2d 591, 595). “[W]e
review the circuit court’s factual findings for clear error but ‘give no deference to the
circuit court’s conclusions of law.’” State v. Medicine, 2015 S.D. 45, ¶ 5, 865 N.W.2d
492, 495 (quoting State v. Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d 779, 782).
Analysis and Decision
[¶7.] The U.S. Constitution protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV; see also S.D. Const. art. VI, § 11. “As the text
1. Lar’s offense is a Class 5 felony, which carries a presumptive sentence of probation. SDCL 22-6-11. In sentencing Lar to imprisonment, the circuit court determined that aggravating factors warranted deviating from the presumptive sentence. Lar does not appeal this determination.
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makes clear, ‘the ultimate touchstone of the Fourth Amendment is
“reasonableness.”’” Riley v. California, ___ U.S. ___, ___, 134 S. Ct. 2473, 2482,
189 L. Ed. 2d 430 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403,
126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650 (2006)). “[S]earches conducted outside the
judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment . . . .” Arizona v. Gant, 556 U.S. 332,
338, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009) (quoting Katz v. United States,
389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)). Thus, “[i]n the
absence of a warrant, a search is reasonable only if it falls within a specific
exception to the warrant requirement.” Riley, ___ U.S. at ___, 134 S. Ct. at 2482.
[¶8.] This case “concern[s] the reasonableness of a warrantless search
incident to a lawful arrest.” Id. “It is well settled that a search incident to a lawful
arrest is a traditional exception to the warrant requirement of the Fourth
Amendment.” United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 471,
38 L. Ed. 2d 427 (1973).
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. . . . In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.
Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685
(1969). This “authority to search the person incident to a lawful custodial arrest” is
categorical—i.e., it “does not depend on what a court may later decide was the
probability in a particular arrest situation that weapons or evidence would in fact
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be found upon the person of the suspect.” Robinson, 414 U.S. at 235, 94 S. Ct.
at 477.
[¶9.] While “the existence of the exception for . . . searches [incident to
arrest] has been recognized for a century, its scope has been debated for nearly as
long. That debate has focused on the extent to which officers may search property
found on or near the arrestee.” Riley, ___ U.S. at ___, 134 S. Ct. at 2482-83 (citation
omitted). For example, the authority to search incident to arrest extends to “the
area into which an arrestee might reach in order to grab a weapon or evidentiary
items[.]” Chimel, 395 U.S. at 762-63, 89 S. Ct. at 2040. But the exception does not
justify searching an “entire three-bedroom house, including the attic, the garage,
and a small workshop” just because the arrest occurred inside the home. Id. at 754,
768, 89 S. Ct. at 2035, 2043. Nor does the exception extend to searching an
arrestee’s vehicle unless “the arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the search.” Gant, 556 U.S. at 343,
129 S. Ct. at 1719. The exception does not extend to “search[ing] digital information
on a cell phone seized from an individual who has been arrested.” Riley, ___ U.S.
at ___, 134 S. Ct. at 2480, 2495. And while the exception does extend to obtaining
an arrestee’s breath without a warrant, it does not extend to obtaining an arrestee’s
blood without a warrant. Birchfield v. North Dakota, ___ U.S. ___, ___, 136 S. Ct.
2160, 2185, 195 L. Ed. 2d 560 (2016).
[¶10.] The question in this case, then, is not whether searching Lar’s urine
was likely to produce weapons or evidence; rather, the question is “whether
application of the search incident to arrest doctrine to this particular category of
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effects would ‘untether the rule from the justifications underlying the Chimel
exception’”—i.e., “harm to officers and destruction of evidence[.]” Riley, ___ U.S.
at ___, 134 S. Ct. at 2484-85 (quoting Gant, 556 U.S. at 343, 129 S. Ct. at 1719).
The United States Supreme Court has never extended the search-incident-to-arrest
exception to the collection and testing of an arrestee’s urine. Nor does “the founding
era . . . provide any definitive guidance as to whether [such tests] should be allowed
incident to arrest.” See Birchfield, ___ U.S. at ___, 136 S. Ct. at 2176 (discussing
“[b]lood and breath tests to measure blood alcohol concentration”).
Absent more precise guidance from the founding era, [the question] whether to exempt a given type of search from the warrant requirement [is determined] “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
Riley, ___ U.S. at ___, 134 S. Ct. at 2484 (quoting Wyoming v. Houghton, 526 U.S.
295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408 (1999)).
[¶11.] The State does not argue that searching an arrestee’s urine is justified
by Chimel’s officer-safety rationale. Like digital data on a cell phone, information in
an arrestee’s urine “cannot itself be used as a weapon to harm an arresting officer
or to effectuate the arrestee’s escape.” Cf. id. at ___, 134 S. Ct. at 2485. “[T]he
officers who searched [Lar’s urine] ‘knew exactly what they would find therein:
data. They also knew that the data could not harm them.’” Cf. id. (quoting United
States v. Wurie, 728 F.3d 1, 10 (1st Cir. 2013)). Thus, application of the search-
incident-to-arrest exception to the category of effects at issue here—i.e., an
arrestee’s urine—would untether the rule from Chimel’s officer-safety justification.
“To the extent dangers to arresting officers may be implicated in a particular way in
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a particular case, they are better addressed through consideration of case-specific
exceptions to the warrant requirement, such as the one for exigent circumstances.”
Id. at ___, 134 S. Ct. at 2486.
[¶12.] As for Chimel’s second justification, it is undisputed that an arrestee’s
urine, like other biological samples, can contain evidence of crime. 2 But Lar argues
that the government’s interest in preserving such evidence does “not justify
extending a search incident to arrest to collection and testing of an arrestee’s urine”
2. In this case, police searched Lar’s urine for metabolites of methamphetamine, which is evidence of a crime (i.e., possessing a controlled substance) other than the crime of arrest (i.e., possessing marijuana and paraphernalia). Regardless, the United States Supreme Court has indicated that the object of a search incident to arrest does not necessarily need to be evidence of the particular crime of arrest. In Robinson, police arrested a motorist for driving with a revoked license. 414 U.S. at 220-21, 94 S. Ct. at 470. During a search of the motorist incident to arrest, police discovered a cigarette box containing heroin. Id. at 223, 94 S. Ct. at 471. The motorist was convicted of possessing heroin, but the United States Court of Appeals for the District of Columbia reversed. Id. at 220, 94 S. Ct. at 469. The Court of Appeals reasoned that because a search of the arrestee could produce only evidence of crimes other than the crime of arrest (i.e., driving with a revoked license), Chimel’s evidence-preservation justification did not apply. Robinson, 414 U.S. at 227, 94 S. Ct. at 473. The United States Supreme Court reversed and held that the authority to search incident to arrest is not diminished “by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.” Id. at 234, 94 S. Ct. at 476. Similarly, in Riley, police arrested a motorist for possessing concealed and loaded firearms in his vehicle. ___ U.S. at ___, 134 S. Ct. at 2480. During a search incident to arrest, police seized a smart phone and searched its digital data, which implicated the arrestee in several additional crimes. Id. at ___, 134 S. Ct. at 2481. The arrestee was convicted for the additional crimes and appealed to the California Supreme Court, which affirmed. The United States Supreme Court reversed, not because a search of the smart phone could have produced only evidence of crimes other than the crime of arrest, but rather because privacy concerns outweighed the government’s interest in preserving evidence. Riley, ___ U.S. at ___, 134 S. Ct. at 2486-93.
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because “the arrestee has no ability to alter the chemical composition of the urine or
otherwise destroy it.” While an arrestee may not be able to take active steps to
destroy evidence in his urine, the “concern for preserving evidence or preventing its
loss readily encompasses the inevitable metabolization of” that evidence. See
Birchfield, ___ U.S. at ___, 136 S. Ct. at 2182 (discussing metabolization of alcohol
in arrestee’s blood). This is because
[t]he distinction . . . between an arrestee’s active destruction of evidence and the loss of evidence due to a natural process makes little sense. In both situations the State is justifiably concerned that evidence may be lost, and [the defendant] does not explain why the cause of the loss should be dispositive.
Id. Likewise, Lar does not explain how the State’s interest in preserving evidence is
diminished when the loss of evidence results from a natural process like
metabolization.
[¶13.] Even so, “[t]he search incident to arrest exception rests not only on the
heightened government interests at stake in a volatile arrest situation, but also on
an arrestee’s reduced privacy interests upon being taken into police custody.” Riley,
___ U.S. at ___, 134 S. Ct. at 2488. “The fact that an arrestee has diminished
privacy interests does not mean that the Fourth Amendment falls out of the picture
entirely. . . . To the contrary, when ‘privacy-related concerns are weighty enough[,]’
a ‘search may require a warrant, notwithstanding the diminished expectations of
privacy of the arrestee.’” Id. (quoting Maryland v. King, 569 U.S. 435, 463,
133 S. Ct. 1958, 1979, 186 L. Ed. 2d 1 (2013)). In weighing the privacy-related
concerns of extending the search-incident-to-arrest exception to a particular
category of effects, relevant considerations include the degree of “physical intrusion”
of the search, the amount of information potentially revealed by the search, and the -7- #27951
potential “to cause any great enhancement in the embarrassment that is inherent
in any arrest.” Birchfield, ___ U.S. at ___, 136 S. Ct. at 2176-77, 2184.
[¶14.] The privacy concerns surrounding the category of effects at issue in
this case (i.e., an arrestee’s urine) outweigh the State’s interest in preserving
evidence. Although requiring an arrestee to urinate into a specimen container does
not involve a physical intrusion into the body, 3 such a search is both more
informative and more embarrassing than the breath test approved in Birchfield.
While “breath tests are capable of revealing only one bit of information, the amount
of alcohol in the subject’s breath[,]” id. at ___, 136 S. Ct. at 2177, the “chemical
analysis of urine, like that of blood, can reveal a host of private medical facts about
[a person], including whether he or she is epileptic, pregnant, or diabetic[,]” Skinner
v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617, 109 S. Ct. 1402, 1413, 103 L. Ed. 2d
639 (1989). And “[e]ven if the law enforcement agency is precluded from testing the
[urine] for any purpose other than to [detect evidence of crime], the potential
remains and may result in anxiety for the person tested.” Birchfield, ___ U.S.
at ___, 136 S. Ct. at 2178.
[¶15.] Requiring an arrestee to urinate into a specimen container also has the
potential to be “a substantial invasion beyond the arrest itself[.]” Riley, ___ U.S.
at ___, 134 S. Ct. at 2488.
There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function
3. The type of search at issue in this case is requiring an arrestee to urinate into a specimen container. Collecting urine via catheterization is highly physically invasive and would weigh heavily in favor of requiring a warrant.
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traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.
Skinner, 489 U.S. at 617, 109 S. Ct. at 1413 (quoting Nat’l Treasury Emps. Union v.
Von Raab, 816 F.2d 170, 175 (5th Cir. 1987)). “[T]he process of collecting the
sample to be tested . . . may . . . involve visual or aural monitoring of the act of
urination . . . .” Id. Thus, while “participation in a breath test is not an experience
that is likely to cause any great enhancement in the embarrassment that is
inherent in any arrest[,]” Birchfield, ___ U.S. at ___, 136 S. Ct. at 2177, the same
cannot be said of the experience of urinating into a specimen container under the
watchful eye of a law-enforcement officer.
[¶16.] In light of the foregoing, law enforcement must secure a warrant prior
to obtaining a urine sample from an arrestee. Even though there may not be a less-
invasive method of obtaining the evidence in an arrestee’s urine, the privacy
concerns involved in searching an arrestee’s urine are much greater than those
involved in subjecting an arrestee to a breath test. Until and unless the United
States Supreme Court offers further guidance on applying the search-incident-to-
arrest exception to searching an arrestee’s urine, this Court will adhere to the
Fourth Amendment’s “strong preference for searches conducted pursuant to a
warrant[.]” Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d
527 (1983). Other courts have similarly held. See State v. Thompson, 886 N.W.2d
224, 233 (Minn. 2016) (holding warrant required to search urine of motorist
arrested for driving under influence of alcohol); State v. Helm, 901 N.W.2d 57, 60-61
(N.D. 2017) (holding warrant required to search urine of motorist arrested for
driving under influence of controlled substance). -9- #27951
[¶17.] Our decision today does not mean law enforcement is prohibited from
ever searching an arrestee’s urine. For example, law enforcement may seek a
warrant requiring an arrestee to provide a urine sample by urinating into a
specimen container. The normal requirements for the issuance of a search warrant
would apply; specifically, “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV (emphasis
added). 4 And “[t]o the extent that law enforcement still has specific concerns about
the potential loss of evidence in a particular case, there remain more targeted ways
to address those concerns.” Riley, ___ U.S. at ___, 134 S. Ct. at 2487. For example,
while a natural process like metabolization does not constitute an exigency per se, it
may constitute an exigency in a particular case. See Missouri v. McNeely, 569 U.S.
141, 165, 133 S. Ct. 1552, 1568, 185 L. Ed. 2d 696 (2013) (“[I]n drunk-driving
investigations, the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test
without a warrant.” (emphasis added)). 5
4. In this case, obtaining a warrant to search Lar’s urine for metabolites of a controlled substance—as opposed to metabolites of marijuana—would have required law enforcement to identify “evidence which would ‘warrant a [person] of reasonable caution in the belief’ that” Lar had ingested a controlled substance. See Wong Sun v. United States, 371 U.S. 471, 479, 83 S. Ct. 407, 413, 9 L. Ed. 2d 441 (1963) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)) (defining the term probable cause).
5. On appeal, the State additionally argues Lar’s conviction should nevertheless be affirmed under the good-faith exception to the exclusionary rule. But as Lar points out, the State did not raise this argument before the circuit court. (continued . . .) -10- #27951
Conclusion
[¶18.] Having considered an arrestee’s legitimate expectation of privacy and
the government’s competing interest in preserving evidence, we conclude law
enforcement may not require an arrestee to urinate into a specimen container as a
search incident to a lawful arrest. The Fourth Amendment requires law
enforcement to obtain a warrant to conduct such a search. Therefore, the search at
issue in this case violated the Fourth Amendment, and the circuit court erred by
denying Lar’s motion to suppress evidence obtained by the chemical analysis of his
urine.
[¶19.] We reverse and remand.
[¶20.] ZINTER and SEVERSON, Justices, and WILBUR, Retired Justice,
concur.
[¶21.] KERN, Justice, concurs with a writing.
[¶22.] JENSEN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
KERN, Justice (concurring).
[¶23.] I write only to note the inevitable question looming on the horizon:
what steps may be taken when a person refuses to submit to a search warrant
authorizing collection of a urine sample? May law enforcement forcibly restrain and
_______________ (. . . continued) Arguments not raised at the trial level are deemed waived on appeal. Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 12 n.5, 764 N.W.2d 474, 480 n.5. Arguments regarding the good-faith exception to the exclusionary rule are no different. State v. Jackson, 2000 S.D. 113, ¶ 12 n.1, 616 N.W.2d 412, 417 n.1.
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catheterize the suspect when the warrant does not specify the method of urine
collection? Indeed, search warrants need not “include a specification of the precise
manner in which they are to be executed.” Dalia v. United States, 441 U.S. 238,
257, 99 S. Ct. 1682, 1693, 60 L. Ed. 2d 177 (1979). Rather, “it is generally left to the
discretion of the executing officers to determine the details of how best to proceed
with the performance of a search authorized by a warrant—subject of course to the
general Fourth Amendment protection against ‘unreasonable searches and
seizures.’” Id.
[¶24.] Catheterization is an invasive medical procedure. It involves insertion
of a tube through the suspect’s urethra and into the bladder to obtain a urine
sample. Such a highly intrusive act raises the question if and when it is a
reasonable method of urine collection. Within the context of 42 U.S.C. § 1983
litigation, courts have been grappling with issues raised by the use of involuntary
catheterization by law enforcement in South Dakota and elsewhere. See, e.g., Riis
v. Does One Through Twenty, No. 3:17-CV-03017-RAL, 2017 WL 5197405, at *5 (D.
S.D. Nov. 9, 2017); Clark v. Djukic, No. 2:14 CV 160, 2017 WL 4278039, at *6 (N.D.
Ind. Sept. 25, 2017); Pillow v. City of Appleton, No. 14-C-1298, 2017 WL 2389625, at
*3 (E.D. Wis. June 1, 2017). Courts should bear in mind that they may disallow
search methods when issuing a warrant, and a search authorized by a warrant must
nonetheless be reasonable in execution. Dalia, 441 U.S. at 257, 99 S. Ct. at 1693.
However, because this case presents neither facts specific to nor briefing on this
constitutional issue, the question is not before us for review. See Miller v. Idaho
State Patrol, 252 P.3d 1274, 1283 (Idaho 2011).
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