Lead Opinion
[¶ 1.] Kyle Louise Buchholz appeals from her conviction of possession of controlled substance in violation of SDCL 22-42-5.
FACTS
[¶ 2.] Kyle Buchholz was returning home to Redfield, South Dakota, at approximately 12:30 in the afternoon of March 16,1998, after attending a weekend foosball tournament in Huron, South Dakota. The South Dakota Highway Patrol had set up a vehicle safety checkpoint along the highway Buchholz was traveling. As Buchholz approached the checkpoint, the highway patrol officer noticed a headlight was not working on the car she was driving. When Buchholz reached the safety checkpoint, the officer approached, asked for a driver’s license and informed her a headlight was not working on the vehicle.
[¶ 3.] As Buchholz did not have her driver’s license with her, the officer asked her to pull over and have a seat in his patrol vehicle. Once Buchholz was seated in the car, the officer ran her identification and asked her where she was coming from. Buchholz stated she had been at a foosball tournament in Huron.
[¶ 4.] The officer wrote Buchholz a warning ticket. As the two were walking back to Búchholz’s car, the officer asked her if she was transporting drugs. Buchholz replied no. The officer then asked if he could search her vehicle and she consented. The officer located a fanny pack, and, upon opening it, methamphetamine was found along with various drug paraphernalia. The search continued and an empty vial believed to have contained methamphetamine was found in another bag. Field tests revealed the substances were methamphetamine.
[¶ 5.] Buchholz was placed under arrest for possession of controlled substances and taken to the Huron Regional Correction Center. Buchholz was booked and asked to provide a urine sample. She initially refused, however after being threatened with catheterization, she provided a urine
[¶ 6.] Prior to trial, defense counsel made a motion to suppress the results of the urine test. The trial court denied the motion. Defense counsel made two other motions, one for specific discovery of a search warrant affidavit authorizing the search of a Huron hotel during the foosball tournament and another for appointment of an expert witness on fingerprints. The trial court denied both these motions.
[¶ 7.] Buchholz was subsequently convicted of possession of a controlled substance (SDCL 22-42-5) and sentenced to five years in the South Dakota Women’s Prison.
[¶ 8.] Buchholz appeals, arguing:
1. Whether the seizure of Buchholz’s urine violated her constitutional rights.
2. Whether specific discovery of a search warrant affidavit should have been granted.
3. Whether a fingerprint expert should have been appointed.
4. Whether there was sufficient admissible evidence to support a finding of guilt.
5. Whether the sentence imposed violated Buchholz’s ’ constitutional rights.
STANDARD OF REVIEW
[¶ 9.] A trial court’s findings of fact used to support or deny a motion to suppress are reviewed under the clearly erroneous standard. State v. Anderson,
DECISION
[¶ 10.] 1. Whether the seizure of Buch-holz’s urine violated her constitutional rights.
[¶ 11.] Our recent decision in State v. Hanson,
[¶ 12.] The three disputed matters are: (1) whether there was probable cause to believe the evidence existed; (2) whether exigent circumstances existed; and (3) whether procurement of the sample was reasonable considering the interests of the accused and society. Hanson,
[¶ 13.] a. Probable cause
[¶ 14.] Buchholz’s vehicle was legally stopped in a traffic check because she had a headlight out. When stopped she also failed to produce the driver’s license she should have had in her possession. Buch-holz informed the officer she had come from a foosball tournament in Huron. The officer was aware of possible drug use at the tournament. The officer also knew that Buchholz was rumored to use methamphetamine and her ex-husband had been arrested for possession of methamphetamine the week before.
[¶ 15.] After issuing a warning ticket, the officer subsequently asked if she would
[¶ 16.] This provides a stronger case for probable cause than existed in Hanson. Here Buchholz was the sole occupant of the car while in Hanson two other occupants were found in the car besides the defendant. An open vial containing methamphetamine is no less an indication of consumption of that substance than a half-empty open container of alcoholic beverages or an odor of alcoholic beverages emanating from a car. State v. Tilton,
[¶ 17.] b. Exigent circumstances
[¶ 18.] “Exigent circumstances exist when there is a situation that demands immediate attention and there is no time to get a warrant.” Hanson,
[¶ 19.] Nevertheless exigent circumstances exist as a prompt test will indicate a higher concentration of the drug. This assists law enforcement in determining whether consumption of the drug was on the day of the stop or recent.
[¶ 20.] According to authority cited by the defendant, urine tests for methamphetamine are only accurate for 24 to 48 hours from consumption of the drug. Citing United States v. Pond,
21.] Hanson concluded, based on an examination of case law from other jurisdictions, there is no basis for treating drug testing any different from blood-alco-blood-alcotesting. Hanson,
We are persuaded that requiring an ar-restee to submit to a urine test is reasonable under the Fourth Amendment. It is a less intrusive search than the withdrawal of blood from the human body. It involves no risk of trauma or pain. Like alcohol in the blood system, traces of controlled substances in the urine will also disappear over time. In Skinner v. Railway Labor Executives’ Ass’n,489 U.S. 602 ,109 S.Ct. 1402 ,103 L.Ed.2d 639 (1989) the Court noted that ‘[although the metabolites of some drugs remain in the urine for longer periods of time ... the delay necessary*904 to procure a warrant nevertheless may result in the destruction of valuable evidence.’ Id. at 623,109 S.Ct. at 1416 .
Id. (Citing United States v. Edmo,
[¶ 22.] c. Balancing of interests of the accused and society
[¶ 23.] This issue was also analyzed in Hanson:
We have held in issue one that there was probable cause to arrest Hanson for possession of marijuana. As such, the officers had the right to search her in a medically reasonable manner based on exigent circumstances and as incident to that lawful arrest for the drug. The state must establish the procedure itself was reasonable when weighing the accused’s interests in privacy and security against society’s interest in the procedure in identifying the perpetrator of the crime.
The type of testing used in this case, submitting a urine sample, would seem to be more reasonable and less intrusive on a person’s life than the alternative of attempting to secure a warrant. If a warrant were necessary, significant restraints would have to be placed upon the individual to preserve the chain of evidence while the law enforcement sought to locate a magistrate or circuit judge and obtain a warrant.
Urination into a specimen container is reasonable process. As a normal body function, urination is less intrusive than removal of blood by a syringe. There is no threat to the safety or the health of the individual. Considered in the analysis is whether all reasonable medical precautions were taken and no unusual or untested procedures were employed. Here no unusual or untested procedures were required.
[¶ 24.] The sample was not demanded of Buchholz at random but probable cause existed to believe her body fluid would test positive for drug consumption. Schmerber v. California,
[¶ 25.] 2. Whether specific discovery of a search warrant affidavit should have been granted.
[¶ 26.] Buchholz argues that the safety check was connected to a search of a Huron hotel conducted earlier that weekend, pursuant to a warrant. Therefore, Buchholz argues that under SDCL 23A-35-4.1, which permits a defendant to discover the contents of an affidavit supporting a search warrant, she should have been able to discover the affidavit supporting the earlier search of the hotel. The trial court determined the evidence sought was not relevant. We agree.
[¶ 27.] The proper standard for ruling on a discovery motion is whether the information sought is “relevant to the subject matter involved in the pending action....'” SDCL 15 — 6—26(b)(1). “This phraseology implies a broad construction of “relevancy” at the discovery stage because one of the purposes of discovery is to examine information that may lead to admissible evidence at trial.” Kaarup v. St. Paul Fire and Marine Ins. Co.,
[¶ 28.] Buchholz failed to make any showing that the traffic safety check was related to the earlier searches at the hotel. At the preliminary hearing, defense counsel asked the officer, “Were you thinking of the rumors that had gone around about the foosball tournament when this safety check was set up?” The officer responded, “No.” Buchholz was not searched, arrested, or charged on the basis of the search warrant at the hotel. Therefore, as to this issue, the trial court did not err.
[¶ 29.] 3. Whether a fingerprint expert should have been appointed.
[¶ 30.] “A trial court’s decision regarding appointment of an expert will not be set aside absent an abuse of discretion.” State v. Red Star,
[¶ 31.] Four elements must be satisfied before appointment of an expert must be made:
[ T]he request must be (1) in good faith; (2) reasonable in all respects; (3) timely and specifically set forth the necessity of an expert; and (4) clear in that defendant is financially unable to obtain the required service himself and that such service would otherwise be justifiably obtained were the defendant financially able.
Red Star,
[¶ 32.] Buchholz requested an expert to testify that fingerprints could have been taken from the surfaces of drug paraphernalia. However, there was no necessity for an expert in this case. The chemist for the State testified that fingerprints could have been taken, but were not. Buchholz has made no showing that the trial court abused its discretion with regard to its decision not to appoint an expert witness.
[¶ 33.] 4. Whether there was sufficient admissible evidence to support a finding of guilt.
In determining the sufficiency of the evidence on review, the question presented is whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In this review, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict. In determining the sufficiency of the evidence, this Court will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.
State v. Knecht,
[¶,34.] Buchholz argues there was insufficient evidence to convict her with possession of a controlled substance. We do not agree. Buchholz was the sole occupant of a car that contained methamphetamine. Drug paraphernalia was found amongst her luggage. The urinalysis provided information Buchholz knew of the methamphetamine and had used methamphetamine. Like Hanson, Buchholz was not charged with possession of drugs in
[¶ 35.] 5. Whether the sentence imposed violated Buchholz’s constitutional rights.
[¶ 36.] Buchholz claims that the five-year sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. However, the record is void of a sentencing hearing transcript. Without the complete record, we will presume the trial court acted properly. D.G. v. D.M.K.,
Notes
. SDCL 22-42-5 provides:
No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while action in the course of the practitioner’s professional practice.... A violation of this section is a Class 4 felony.
. Supra note 1.
Concurrence Opinion
(dissenting in part, concurring in part).
[¶ 40.] I dissent on issue one and would hold that the search violated Fourth Amendment protections. I concur on issues two and three.
[¶ 41.] Law enforcement lacked probable cause for the search and seizure of Bu-cholz’s urine. Furthermore, even assuming probable cause, exigent circumstances to excuse the necessity of obtaining a warrant did not exist.
[¶ 42.] “ ‘[T]he definition of ‘probable cause’ employed by the court is a question of law, not of fact or of discretion, and, as such, is fully reviewable de novo, with no presumption attaching] to the determination of the circuit court.’ ” State v. Zachodni,
Q: And when you arrest somebody for methamphetamine, do you usually have them take a urine test?
A: Yes.
This testimony reeks of law enforcement conducting a search as part of “standard procedure” with no facts to support the search. This same type of search was found unconstitutional in State v. Shearer,
[¶ 43.] In addition to the lack of probable cause, exigent circumstances to excuse the necessity of obtaining a warrant did not exist. In Schmerber, the Supreme Court emphasized the necessity of obtaining a search warrant prior to obtaining a blood sample:
Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusion into the human body are*907 concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search “be drawn by a,neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States,333 U.S. 10 , 13-14,68 S.Ct. 367 , 369,92 L.Ed. 436 (1948); see also Aguilar v. Texas,378 U.S. 108 , 110-111,84 S.Ct. 1509 , 1511-12,12 L.Ed.2d 723 (1964). The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence is indisputable and great.
Schmerber,
[¶ 44.] After stating its holding, the Supreme Court emphasized its narrowness:
It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States’ minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
Schmerber,
[¶ 45.] While the State argues the existence of exigent circumstances, the officer’s testimony does not support such a claim. With regard to the amount of time methamphetamine can be detected in urine, the officer testified he was unknow-ledgeable as to the length of time methamphetamine will stay in the urine but that it was “crucial you get the urine test right away.”
Q: Based on your [seventeen] years experience and your drug training, do you know how long methamphetamine will stay in urine?
A: No.
Q: Is it crucial that you get the urine test right away?
A: Yes.
Q: Do you know why that is?
A: Well, the sooner you get the urine test, you can get the results back and you can see how those results are [and then you] could determine previous to the time that they were stopped there might have been some usage.
[[Image here]]
Q: [States attorney] asked you how long methamphetamine stays in the human body, and I believe your answer was that you don’t know?
A: That’s correct.
Further, according to the officer’s testimony, when a person is arrested for metham-phetamines, exigent circumstances automatically exist. On cross-examination, the officer stated:
Q: And your exigent circumstance is that you weren’t going to let her go until she produced a urine sample?
A: Yes.
Even .the state’s attorney, in her closing argument, acknowledges the length of time it takes methamphetamines to be metabolized by the body, “So we know that in the last 72 hours that the defendant used methamphetamine.”
[¶ 46.] For exigent circumstances to exist, there must be evidence to support such a claim. This record is devoid of support for exigent circumstances. Without requiring such support, the term “exigent circumstances” is merely pretextual, becoming a blanket exception to the warrant requirement regardless of what crime the person is arrested for, or, the ability of law
[¶47.] Unlike the evanescent nature of blood alcohol levels, the presence of methamphetamine in urine can be detected for an extended period of time. United States v. Pond,
[¶ 48.] “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 traditionally performed without public observation; indeed, its performance. in public is generally prohibited by law as well as social custom.” Rawlings v. Police Department of Jersey City, New Jersey,
[¶49.] As the United States Supreme Court articulated in Rochin v. California,
[¶ 50.] Evidence illegally seized must be suppressed under the exclusionary rule. Shearer,
[¶ 51.] Although it was error to admit the results of the urine test, State argues such admission is harmless error.
In order to find error harmless, it is necessary for the appellate court to find that the admission of the erroneous evidence did not prejudice the defendant’s case. “Prejudicial error, when constitutional questions are being considered, is error which would have some likelihood of changing the result.” State v. Blue Thunder,466 N.W.2d 613 , 618-19 (S.D.1991) (citing Chapman v. California,386 U.S. 18 , 24,87 S.Ct. 824 , 828,17 L.Ed.2d 705 (1967)). A constitutional violation may constitute harmless error, and thus*909 not require reversal, if the court can declare beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained. State v. Michalek,407 N.W.2d 815 , 819 (S.D.1987) (emphasis added).
State v. Schuster,
[¶ 52.] A review of closing arguments discloses that the state’s attorney relied almost exclusively on the urine test results to prove a critical element of the crime, knowledge.
. States Attorney argued:
We know there was methamphetamine in the car. We know there was methamphetamine in the defendant's system.
Why is it important to know about the urine? And that goes to knowledge. She knows what it is. She’s a user. She knows what methamphetamine is.
And why is that important? Well I might show this brown powdery stuff to somebody on the street. They don’t know what it is. I probably wouldn’t know what that is if I was just looking at it without my training and background as the States Attorney, but an ordinary person probably don't, but a user of methamphetamine knows what that is. They know how to ingest it. They know how to take it.
Same thing with these vials. There are residue amounts in there. A user knows that by looking at them.
Look at these other items. Here is a broken light bulb, right? Well, to a user, to a person that’s using methamphetamine, you know that is something that is burnt and used to inhale methamphetamine. Heard that from the expert witnesses. You heard that from a trooper. You know that because you use drugs.
Same thing with this test tube. This is a little more obvious. Some people might know that that is used for drugs, but it’s a lest tube; a little burnt on the end and a little hole in the middle. Not everybody is going to know what that is, but if you’re a user — you have it in your system, you’ve been using — you know what that is and it goes to knowledge. You know what that is.
And that's why the urine test is important. We know that she knows what it is. She’s seen it before. She used it before. She has knowledge of that controlled drug.
Dissenting Opinion
(dissenting).
[¶ 53.] I join Justice Amundson’s dissent in all respects.
[¶ 54.] In addition, the forced urine test of defendant violated Article VI, § 9 of the South Dakota Constitution. “There can be no doubt .that this court has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution.” State v. Opperman,
[¶ 55.] Article VI, § 9 of the South Dakota Constitution provides in part:
No person shall be compelled in any criminal case to give evidence against himself[.]
(Emphasis added). The language of Article VI, § 9 provides broader protection than the Fifth Amendment which provides: “No person ... shall be compelled, in any criminal case, to be a witness against himself!.]”
[¶ 56.] The prohibition contained in Article VI, § 9 does not prevent law enforce
[¶ 57.] Therefore, we should reverse and remand for a new, fair trial.
. "This wording is substantively different than its federal counterpart, the Fifth Amendment to the United States Constitution, which protects against compulsion of a person 'to be a witness against himself.' " State v. Meek,