State v. Hanson

prior right or his written notice words, di- counsel requirement bears In other Smith, 515 alleged violations. See of the revoca- rectly ability to contest upon the 225; McCormick, proceedings. tion 124. prior written receive Christian did 22.] [¶ find that Christian was denied 24.] We layper- aAs alleged violations. notice of the by proceed- court process of law the trial due knowledge exper- and legal he lacked the son hearing on revocation December ing with the process right his to due to assert tise represented by was not when he no- prior lack written was denied prior and not received written counsel objected to the have could tice. Counsel of his sus- alleged violations notice trial court and alerted the proceedings pay- pended Since violation sentence. fact, many of the problem. procedural provided for revoca- the basis ment schedule appeal by Christian issues raised sentence, suspended reverse tion of his we competent if counsel had avoided have been dispositive, this is remand. Since issue and hearing. appointed at December been unnecessary it address other issues. investigated could have Christian’s Counsel hearing. employment status Justice, MILLER, Chief and information, a more realistic accurate With KONENKAMP, AMUNDSON, GIL- and presented could have been payment schedule BERTSON, Justices, concur. Instead, sug- court. Christian

to the trial on his mis- payment schedule based

gested a employed. assumption that was still

taken he comply inability to with that schedule

His subsequent revoca-

provided the basis suspended

tion of his sentence. waived The State claims Christian

[¶23.] right right his to notice.

his to counsel and disagree. voluntarily, made must be [A] waiver SD 9 knowingly, intelligently, with sufficient Dakota, Plaintiff STATE of South of the relevant circumstances awareness Appellee, likely of a consequences. The waiver right positively constitutional must be es- tablished, party and the burden closely scrutinize

alleging as courts waiver HANSON, Pamela Defendant indulging every allegations, reason- such Appellant. against presumption able waiver. When No. 20374. determining right a constitutional whether waived, has this court looks Supreme Dakota. Court South totality of the circumstances. Argued 1998. Oct. Paroles, v. Board Pardons Smith (alteration (S.D.1994) Reassigned Nov. 1998. McCormick, N.W.2d at original) (quoting omitted)). (citations Christian was Decided Jan. he to waive his whether wished not asked 25, 1999. Rehearing Feb. Denied was not advised that right counsel. He waiving his admitting the violations he nothing in the rec-

right to notice. We find “voluntarily, Christian

ord which shows intelligently” right his waived

knowingly, Barnett, General,

Mark Attorney Michele Bennett, General, K. Attorney Assistant Pierre, plaintiff appellee. Mary Keller, Huron, G. for defendant and appellant. (on

GILBERTSON, reassignment). Justice appeals [¶ 1.] Hanson her conviction for 1) possession marijuana claiming that 2) police her; lacked cause to arrest rights her constitutional were violated in ob- 3) taining urine; of her was support insufficient evidence to her con- viction. affirm. AND

FACTS PROCEDURE February [¶2.] On approxi- mately p.m., 10:00 stopped Huron J.S., car age driven for violation of the (Han- tinted window law. Pamela Hanson son), age passenger was a in the front M.G., age a passenger seat rear seat. J.S. and M.G. were friends of Hanson’s son. spoke 3.] Officer Marotteck with J.S. identity

about occupants of the other the car. years He learned that M.G. was 15 and in city’s old violation of the curfew law. Officer Marotteck into leaned the car to speak with M.G. and a faint detected odor of burnt spoke

[¶ 4.] Officer Marotteck separately with all passengers about they three where OF REVIEW doing. STANDARD they had what been had been only car to have claimed Hanson Our standard of review ride from time in order receive a short well established: grocery The stories store. home findings sup A of fact from a trial court’s All three juveniles conflicted. two hearing upheld unless pression must any knowledge the odor regarding denied Pfaff, clearly they áre erroneous. State had ever marijuana. None claimed there (S.D.1990). Similarly, a passenger. fourth been a finding concerning probable trial court’s the scene dog brought to drugA for a warrantless arrest will not car, but not on on the and “hit” unless erroneous. U.S. overturned car re- passengers. three Searches (8thCir.1987); Woolbright, F.2d 1390 marijuana leaf and partially burned vealed McGlynn, with burnt seed on rear seat (8thCir.1982). court’s function under This All seat. under the rear residue is to clearly erroneous standard deter any knowledge passengers three denied decision of the lower mine whether pipe. of substantial evi court lacks dence, of an view evolves from erroneous juveniles were Hanson and the two [¶ 6.] whether, considering or applicable law the transported to the Hanson was arrested. record, we are left with a defi entire police department where a urine court, has According her conviction that a mistake to the trial and firm obtained. nite Carder, requested, obtained.” “not nor v. 460 N.W.2d consent was made. State n marijua- positive for (S.D.1990). The urine tested making this determina 733 na. tion, light in a most we the evidence review Id. the trial court’s decision. favorable to with one count charged Hanson was

[¶ 7.] pound 840, of possession of less than one-half Baysinger, of N.W.2d 843 v. 470 State of 22-42-6 and (S.D.1991). in violation SDCL possession a controlled sub- one count of of stance, methamphetamine, in violation AND ANALYSIS DECISION methamphetamine 22-42-5. The

SDCL charge to trial. was dismissed probable 1. there was [¶ 11.] Whether Hanson’s arrest. cause for suppress the uri- Hanson’s motion to nalysis trial was denied evidence argues police that the 12.] Hanson 1997, 4, At court trial June court. held her. She probable cause to arrest lacked belonged him that the M.G. testified solely on was based claims that her arrest smoked in the marijuana had been and no any her car and denial presence trial court night question. The car on the pipe. We knowledge of No- opinion in its memorandum dated stated disagree. 1997, 20, it did not find vember testimony and found juvenile’s to be credible ex cause to arrest [¶ 13.] “Probable guilty possession Hanson within the facts circumstances ists where knowledge and arresting officers’ following raising the appeals Hanson reasonably trustworthy in they have which issues: to war sufficient in themselves formation are probable cause 1. there was Whether by caution rant a man reasonable belief Hanson’s arrest. is commit suspect has committed or that a of Hanson’s urine Whether the seizure Baysinger, 470 N.W.2d ting an offense.” rights. her constitutional violated Stuck, N.W.2d 43 (citing v. State 685, Max, (S.D.1988); 263 N.W.2d v. State evidence 3. Whether there was sufficient “However, (S.D.1978)). probable cause conviction. 338, 342, probabilities deals with that are not technical S.Ct. 62 L.Ed.2d (“Where only cause, practical but the factual and consider the standard is must, everyday person sup- ations of which search or seizure life reasonable technicians, by probable prudent persons, legal ported particularized respect to Baysinger, person.”). act.” “A person’s 470 N.W.2d at 845 mere Glide, propinquity independently suspect- State others 87 S.D. N.W.2d (1972)). not, activity ed of criminal approach do not does without “[W]e [the] facts more, give separately rise cause to arrest ... ‘but rather we view the action person.” Baysinger, 470 arresting N.W.2d at 846 officers on basis of the (citation omitted). totality cumulative facts effect such ” Baysinger, circumstances.’ case, (alterations however, [¶ 16.] In this original) 845-46 Green, there was than proximity more mere in (quoting United States 386,390 (8thCir.1975) (citations occupants volved. All three omitted)). denied

knowledge parapherna lia, but all had access to the rear seat of the reason compact requires small car. Possession stop excessively car of its because tinted an presence individual be aware Lownes, windows. State intentionally character (S.D.1993) (“The probable cause re consciously possess drug. such quired to a stop make than that less (cit Wellner, (S.D.1982) required to issue a warrant or make an ar Kietzke, ing 502, 506, 85 S.D. rest.”) Ohio, (citing Terry 392 U.S. 25- (1971)). “However, pos 88 S.Ct. 20 L.Ed.2d 908- session need may not be exclusive. It ... (1968); Anderson, 09 v. State 359 N.W.2d (quoting [be] shared with others.” Id. (S.D.1984)). 887,889 Once Officer Marotteek Kietzke, 506, 554). 85 at S.D. 186 at N.W.2d detected the odor burnt and the car, drug dog “hit” probable on the [¶ Hanson has 17.] not shown that the trial cause for a warrantless search of ear. clearly court was erroneous when it found Pfaff, (citing 456 at N.W.2d 561 v. State probable and, cause to her arrest Peterson, 221, (S.D.1987)). 407 N.W.2d 223 therefore, we affirm this issue. justifying “Probable cause a pres search is ent where the facts found court or [¶ 18.] Whether seizure Han- magistrate would lead a pru reasonable and son’s urine violated her constitutional person fairly dent probable believe it that rights. crime been committed and that evi dence relevant to the crime would be uncov [¶ 19.] Hanson that claims trial court Zachodni, ered the search.” v. State 466 suppressed urinalysis should have results (S.D.1991) 624, (citations N.W.2d 629 omit because the violated her federal and ted). We have held that “when law en rights by state constitutional obtaining a vehicle, stops forcement officer and the sample without her consent and with- probable officer has cause believe the vehi out a warrant. contraband, cle contains the vehicle searched without a waiTant.” Id. at 627 [¶20.] The Fourth Amendment (citations omitted). The search of car the United States Constitution and Article produced the leaf and seed and VI, § 11 of the South Dakota Constitution residue of burnt protect against unreasonable searches and

seizures. “Because it is clear that the collec recognize [¶ 15.] We that proba testing tion and upon urine intrudes ex particularized ble must as to pectations privacy each society long has party Baysinger, reasonable, arrested. recognized 470 N.W.2d ... these intru 846; Illinois, 85, 91, Ybarra v. 444 U.S. 100 sions must be deemed searches under the

891 coercion, any actual or or Railway v. without duress Skinner Fourth Amendment.” Zachodni, 602, 466 at 629 Assn., 617, implied.” N.W.2d U.S. Labor Executives’ 440, Cody, 639, (quoting State 103 L.Ed.2d 109 S.Ct. omitted)). (citations (S.D.1980) The trial (1989). was “not court found that consent requested, the state’s nor obtained.” Given 21.] a. Consent. case, proof and facts of the we burden hold the trial court was not erro- Generally a of a search [¶ 22.] finding Hanson did not consent to neous by a place must be authorized person or taking a urine cause to believe warrant based produce contraband that the search will Zachodni, 466 of a crime. other evidence b. search without consent. Lawful 26.] omitted). (citations However, at 627 N.W.2d has unsuc [¶ While the State to con given to law enforcement “[c]onsent cessfully claimed Hanson consented necessity to ob removes duct search sample, it also maintains the alternative cause.”

tain a warrant based have obtained could ¶ Shearer, 1996 SD under Schmerber Cal without her consent omitted). (citations 792, 795 N.W.2d ifornia, 384 U.S. 86 S.Ct. (1966). absence con “[T]he L.Ed.2d 908 simply Hanson was told a more, consent, not without does neces scious bears be taken. “The State would sarily a violation of a con taking render proving the burden consent Abram, Breithaupt right.” stitutional freely voluntarily giv has been search 408, 410, 1 432, 435-36, 77 L.Ed.2d S.Ct. en.” Zachodni (1957). 448, 451 491,497,103 Royer, S.Ct. Florida v. 460 U.S. (1983)). 1319, 1324, 75 L.Ed.2d previously adopted the We have ‘by showing met “The State’s burden analysis in the context alco of Schmerber authori to a claim of lawful mere submission Nguyen, hol offenses. See State related ” (quoting ty.’ 47, ¶10, Zachodni SD Royer, U.S. at 103 S.Ct. at 75 460 Tucker, 152, (1997); 154 State v. 533 N.W.2d 236). Sickler, 70, L.Ed.2d at The officer who obtained (S.D.1995); v. N.W.2d State 488 trial that was sample Lanier, testified he (S.D.1992); the 452 N.W.2d 73 State Heinrich, way (S.D.1990); take a one or the 449 “going to 145 State (S.D.1989); v. Par other.” N.W.2d 26-27 State (S.D.1989); ker, State 444 N.W.2d (S.D.1987); Ager, 874 Hanson was not advised of [¶ 24.] Hartman, 256 N.W.2d being rights required produce to her before (S.D.1977).We have stated: fact, only of she was advised the statutory rights after constitutional and her not [B]odily samples sub- [are] substance it is sample had obtained. “While the exclusionary ject under the to the rule necessary for to that the State show the (1) they taken if are Fourth Amendment right to consenting party knew the refuse (2) arrest, by a reliable to a lawful incident consent, knowledge lack of knowl such obtaining accepted such method and judgment edge is one factor Court’s (3) reasonable, medically ap- sample, in a its burden.” Zachod the State met whether (4) manner, proved where there (citation omitted). at 628 N.W.2d that the evidence probable cause to believe ni that the It is also held

sought exists. must establish vol- by bodily “The State natural elimination alcohol by convincing presents exigent evidence circumstances untariness clear functions free, necessity obtaining a the the of a obviate was result which the search warrant. unequivocal search intelligent, specific consent (alterations Tucker, stop was 533 N.W.2d at 154 scene the not the most direct added) Hartman, original) (emphasis grocery from to route her home the store. (citation omitted)).1 passengers N.W.2d Here The other two indicated to law (1) disputed the issues remain are: car which enforcement that Hanson had been the twenty-five probable whether was cause to believe for to there minutes make ten block (2) existed, exigent trip grocery the whether cir- evidence store. If the officers had Hanson, procure- probable existed cumstances whether no cause to search then they ment of had probable reasonable consider- no to search the cause ing society. accused and two ear occupants leaving interests other of the marijuana containing

officers a car occupant no to hold accountable as the source (i) /¶ 29.] Probable cause. illegal drug. ‘probable [¶ 30.] “[T]he definition of If probable the officers had cause employed is question cause’ the court possession marijuana, arrest Hanson for it law, discretion, such, and, not of fact or of as they probable would follow had cause to test novo, fully ‘pre reviewable de with no for illegal her traces substance for sumption attaching] determination ” which she was arrested. Hanson has not Zachodni, the circuit court.’ N.W.2d findings shown trial court’s of fact con- (second original) alteration (quoting cerning probable cause errone- (S.D. Byrd, State v. ous. Based on the above facts the officers 1986)). Hartpence also See Youth Forest had cause to believe Hanson (S.D.1982). ry Camp, possessing marijuana had been and to test We find that there was to test drug. her in this case. [¶ 3 n .] 31.] The tell us (ii) facts that Hanson Exigent circumstances. was in a car smelled burnt Exigent circumstances ex residue, marijuana A with burned ist when there is situation that demands partially seed mari burned immediate attention and is no time juana leaf were found in the car which Heumiller, get warrant. occupants Hanson and the other would have (S.D.1982). itWhile is true A dog access. “hit” on car. dissipate does not from a dog individually While did not “hit” person’s system alcohol, quickly as does Hanson, dog neither did “hit” on the can be influenced various fac occupants excluding other two tors, including the amount of water con occupant inclusion of other ear. sumed to the urine test. The State’s occupants All possession denied of mari the that chemist testified the sooner the urine juana, knowing the the of source the sample is marijuana after consump collected All occupants odor. told inconsis tion, likely positive the a more result will be tent stop. stories to the who officer made the on sample given by obtained.2 Based the One of the consistencies at few this time was Hanson, the chemist testified that high the that occupants none claimed addi present in suggest levels THC urine passengers tional in had been the vehicle to consumption day day that or the before. It a create source the and its odor. also allowed the chemist to rule out the merely get- [¶ 32.] Hanson was possibility claimed she that the could have ting a grocery ride store. passive Yet the been the result passive smoke or laws, Implied through 1. consent SDCL p.m. February 32-23-10 2. arrest The occurred at 10:00 on 21, 1997, 32-23-21, Friday night. apply magistrate do not Whether a because Hanson was not judge or circuit could the have been located driver that of the car. weekend the to commencement of business Monday morning hours is unknown. such, As possession son for ingestion.3 right in to search her the officers had is no basis for this case In there medically manner based exi reasonable from testing any different treating gent and as incident that circumstances Strong, testing. See State blood-alcohoi drug. state must lawful arrest for the The (Iowa 1992) (cocaine); State procedure itself was reasonable establish 189, 505 N.W.2d 673 Thompson, 244 Neb. in weighing pri when the accused’s interests (1993) (cocaine). exigent cir- In both cases society’s vacy security against interest in is at existed the difference cumstances procedure identifying perpetrator in degree, wheth- only in the matter of not most Strong, at crime. uphold- not. exist or In the circumstances er Lee, 760, 105 U.S., 753, Winston drugs, for the Court in ing a forced urine test (1985)). S.Ct. L.Ed.2d v. Edmo reasoned: United States testing in type used this [¶39.] persuaded requiring that an arres- We are case, sample, is would submitting to a test reasonable seem tee to submit urine Fourth Amendment. It is less on a under the to be more reasonable and less intrusive than withdrawal of intrusive search person’s attempt- life than the alternative body. human It involves blood from the ing If a to secure a warrant. warrant were in pain. no of trauma or Like alcohol risk necessary, significant restraints would have system, of controlled sub the blood traces preserve placed upon the individual to disappear also in the urine will stances the law the chain evidence while enforce- Railway Labor over time. Skinner sought magistrate locate a or circuit ment Ass’n, 602, 109 S.Ct. Executives’ 489 U.S. judge obtain a warrant. the Court 103 L.Ed.2d specimen into a [¶ 40.] Urination container ‘[a]lthough metabolites of noted that body process. As a normal is reasonable longer drugs in urine for remain some function, than urination less intrusive re- delay necessary periods of ... time Edmo, syringe. moval of blood may result procure a warrant nevertheless is no F.3d at 1292. There threat of valuable the destruction evidence.’ safety or the health the individual. Win- 623, 109 Id. at S.Ct. ston, 105 S.Ct. at 470 U.S. (9thCir.1998). A similar analysis L.Ed.2d 669. Considered holding be found in can United States precau- “all reasonable medical whether Twiss, (8thCir.1997), reh’g 127 F.3d 771 & unusual or tions were taken no untested suggestion reh’g en banc denied. employed....” Id. procedures Here were were procedures no unusual untested re- (Hi.) Balancing interests [¶37.] quired.4 already We have determined society. the accused and by law not en- was demanded was at random but there have held issue forcement 38.] We one body fluid Han- to believe Hanson’s was arrest cause However, required. as instructed that the re- 3. State Chemist Mathison testified Schmerber, proper “demonstrates sults the urine "the Fourth Amendment's actively smoking large person constrain, against ail intru is to function marijuana.” amount of such, against but intrusions which are sions as testify: circumstances, to Mathison went on justified which are or not sample, we found in With improper 384 U.S. at made in an manner.” possible pinpoint when the smok- not to it’s 1834, 768, at 918. 86 S.Ct. at 16 L.Ed.2d See very high place. ing But this is level. took generally summary Thompson of cases for greatest probability would be that the concerning the use of choke holds extract Generally, you very smoking was recent. a defendant’s mouth when he substances from smoking place expect took that the would 189, attempts Neb. evidence. 244 swallow day, although [sic] we conclusive cannot N.W.2d 673. 505 that from a urine demonstrate speci- produce a a defendant refuse to 4. Should procedures by urinating, other medical men

894 drug consumption. theory positive test for sustain a rational would drawn therefrom ¶67, Schmerber, White, 24, 1835, guilt.” State 86 S.Ct. at SD U.S. (citations omitted). Al at 919-20. L.Ed.2d The urine though this case is based on circumstantial highly its results essen- test are accurate and possession evidence an inference of can be community’s fairly tial to the interest by established circumstantial evidence. accurately determining guilt the defendant’s (cid:127) Dickson, (S.D. State especially considering or innocence there 1983); Winckler, with were two other individuals the car (S.D.1977). drugs similar access to the found (cit- Strong, officers. 837-38 having Possession is as defined control Winston, ing 470 U.S. at S.Ct. place thing knowledge over a with 1617-18, 670). 84 L.Ed.2d at this evi- Here and the intent to have such control. The pos- was crucial to dence establish Hanson’s actual, possession does not have to be against session as two the other physical possession person. on one’s We occupants of car. affirm on issue possession have also held that not need two. exclusive, possession may thus be shared

with others. 3. Whether [¶41.] there sufficient Dickson, (citations 329 N.W.2d at 632 support evidence to Hanson’s convic- omitted). quotations internal When one ex- tion. previously amines the facts set forth herein charge possession against which led to the argues positive [¶ 42.] Hanson that a Hanson, sup- is there sufficient evidence drugs by for urine test itself cannot consti port guilty. verdict “possession” marijuana tute in violation of SDCL 22-42-6. She cites to such as cases For the above reasons we affirm the Lewis, “probative which held that trial court. corroborating evidence” must be established positive drug state in addition MILLER, Justice, Chief test a conviction. 394 N.W.2d KONENKAMP, Justice, concur. (Minn.App.1986). AMUNDSON, [¶ 46.] SABERS and [¶ We not need decide the Justices, dissent. issue of what if proof further additional beyond required the test result establish SABERS, (dissenting). Justice possession in this case as she was not [¶ 47.] THE OF SEIZURE HANSON’S charged possession in her URINE VIOLATED HER CONSTITU- body possession but found TIONAL RIGHTS. sitting in the car. The trial court trier of fact made this clear in its memorandum Law [¶48.] enforcement lacked opinion incorporated findings which it into its search of Hanson’s urine. The of fact and conclusions of law.5 A verdict suppressed trial court should have the evi- guilty as long will be overturned as the dence because the seizure her urine with- and the “evidence reasonable inferences out her consent and without a warrant violat- 5. The court separate trial reasoned: cannot be convicted offense "possession.” argument upon This issue has not been ad- Defendant’s based the histor dichotomy "possession’’ ic between and "use” dressed in South Dakota. this instance Blackston, so, in the criminal law. See there is need for no this Court to do be- (3rdCir.1991) particu cause while is circumstantial evidence of Spann, larly, People Cal.App.3rd ingestion, there is also evidence of the (3 1986). Cal.Rptr. Dist. Defendant presence marijuana actual of in the form of a argues specific there a when statute leaf, pipe. and a residue "use,” concerning ingestion, i.e. a defendant controlling can be is not rights. Twiss and federal constitutional ed her state Therefore, this case. the facts of distinguished from I dissent. in a one-car acci- fatal Twiss was involved Marotteek Although 49.] Officer detect- [¶ passengers two left Twiss and other dent. car, marijuana odor within the ed an of burnt eventually went of accident and scene the the of Han- was no odor about con- hospital police the made to the where car, dog “hit” on person. The the son’s body was found passenger’s fourth tact. The police nothing The observed not on Hanson. a still pinned the car with beer underneath suggested she appearance about her which Marijuana was found hand. clutched his any drug. After under of was the influence Police detected scene of the accident. the of lack considering the entire record the person and he of about Twiss’ an odor alcohol evidence, was the trial court substantial suspected intoxicated. Police appeared finding probable cause erroneous occupant was not the driver the deceased urinalysis. forcing Hanson’s driving one might have the that Twiss addition, exigent circumstances [¶50.] on of accident. Based all that at the time the obtaining a which the need eliminate information, Ap- Eighth Circuit Court of the taking sample urine did warrant before the urinalysis. peals probable the found cause for specifical not exist. Schmerber Therefore, California situation Tunss is the factual ly exigent found circumstances because this significantly different than case dissipates speed from at which alcohol probable emphasize the lack serves 770-71, body. 86 S.Ct. cause here. (1966). have 16 L.Ed.2d 908 factually distinguish- also 54.] Edmo is [¶ recognized exigent circumstances also these controlling. Edmo ob- and is not was taking able of blood upheld and have warrantless erratically. police found driving The served samples for detection of alcohol because dissipates pis- and .22 speed from a semi-automatic at which alcohol Tucker, body. 533 N.W.2d tol in his car. Edmo consented urine See Hartman, (S.D.1995); 256 sample, Ninth unlike Hanson. The Circuit (S.D.1977). 131, 134 police Appeals found that the Court to believe Edmo had con- cause alcohol, marijuana is not [¶ Unlike However, a I sumed controlled substance. body, thereby dissipated de- quickly agree Circuit that do not Ninth a Ac- stroying possible evidence crime. obtaining sample urine without warrant chemist, cording marijuana can to the State’s justified exigent because of circumstances. fat stored in an individual’s tissue long days ingestion. as after as detected majority mini- 55.] Both Edmo up to suggests may it be detected Literature degree mize the of intrusion involved in ob- days. speed at long as which as The majority taining sample. glosses a urine The body presence of eliminates the by stating type that “[t]he over the intrusion exigent justi- circumstances create does testing in this would seem to be used case police had urinalysis. The fying warrantless per- more reasonable and less intrusive mag- present information to a ample time attempting than son’s life the alternative determination to for a istrate majority ignores to secure warrant.” The authorizing attempt to obtain warrant logical reasoning. Al- extension its sample. taking Hanson’s urine though physical did not use force urine, sample obtain the majority cites United States 52.] The officer who obtained the testified (8thCir.1997), Twiss, reh’g & 127 F.3d “going to take urine he one reh’g en banc denied suggestion for way Had or the Hanson other.” refused Edmo, and United States order, comply with his forced catheterization (9thCir.1998) finding for the However, have would been used to obtain reliance exigent circumstances. majority argue cannot that that misplaced. cases is those procedure would “more to respect involving be reasonable tion in- searches ... ... to attempting beyond less intrusive than body’s trusions surface. The a warrant.” secure Forced catheterization dignity 'privacy interests in human integ- would be a substantial intrusion of the protects which Fourth Amendment for- body. rity an goes individual’s It well bid such intrusions on the mere beyond obtaining the intrusion involved in a might that chance desired evidence ob- blood, sample person suspected from a In tained. the absence of a clear indica- driving under the influence alcohol. tion in fact such will evidence found, fundamental these human interests majority, position [¶ 56.] Under the require law officers to risk suffer the in person a have no situation would may disappear süeh evidence unless there ability to provide refuse to urine is an immediate search. suspected driving At an least individual drugs while under the or alcohol influence 769-70, (empha- U.S. at 86 S.Ct. at 1835 protection implied some from receives added). sis laws. An individual can to consent refuse Supreme [¶ 59.] The United States Court to a submit withdrawal face revoca- goes on to importance discuss the of a war- driving Only tion his or privileges. rant, stating: “Search warrants are ordinari- can under limited circumstances the individu- ly required dwellings, for searches of However, al to submit. be forced because emergency, an absent no less could be re- vehicle, Hanson was not the driver she quired body where intrusions into the human protection implied does not receive the of the importance are concerned.... of in- and, position consent laws under the formed, detached and deliberate determina- majority, could not refuse submit tions the issue whether or not to invade taking of her urine. body another’s in guilt search of evidence Obtaining sample of from an indisputable great.” at Id. force, individual without a using warrant if Although S.Ct. the Schmerber court necessary, goes beyond scope of a search exigent found circumstances based on the incident to lawful arrest. Law enforcement speed at which alcohol is from eliminated bodily obtain a of a substance body precluded warrant, the need for a it individual, from an such a semen carefully holding. limited its It stated: case, rape but such substantial intru- today “That we hold that the Constitution sion requires a warrant seizure. not forbid the does States minor intrusions age this modern of fax machines and an body into stringently individual’s under phones, cellular it is difficult believe law way limited in no conditions indicates that it could obtain a enforcement search war- intrusions, permits more substantial or in- magistrate rant judge from or circuit court under trusions other Id. at conditions”. sought within a few hours. The individual added). (emphasis 86 S.Ct. We must during be searched could be detained heed caution. time. illegally [¶ 60.] Evidence obtained must be minimum, At a the Fourth Amend- suppressed exclusionary under rule. ment to the United States Constitution re- Shearer, 52, ¶21, SD quires the existence of cause before (citing McCreary, State v. may require law enforcement an individual to 82 S.D. 142 N.W.2d submit an body. intrusion of his or her Ohio, (citing Mapp v. S.Ct. Supreme The United States Court (1961))). 6 L.Ed.2d 1081 “The ratio rejected Schmerber searches to ar- incident nale this is to rule deter from justification bodily rest as for searches of violating protections.” constitutional Shear substances: ¶ er, 1996 SD 52 at Saiz, validity Whatever the these consider- (S.D.1988)). general, they applica- ations have little Here, only police 61.] [¶ 1999 SD an for support possession arrest CAMPION, Kirby, Tom Kir Richard Joe J. paraphernalia found III, by, Ray Laird, Mies, M. Peter W. police did not The back seat of vehicle. Peterfeit, Ogle, Martin F. Er Richard for probable cause to an arrest have M.Sifrar, Sifrar, nest Marie G. Charles and, therefore, right had no ingesting Tracer, Witt, L. and Robert Plaintiffs providing a Hanson into urine coerce Mrs. Appellees, counsel sample. Apparently, already floodgates have claims the illegally urine opened coerce APARTMENTS, a limited PARKVIEW try samples improper cases. must Brutger partnership, Equities,Inc., floodgates too before it is late. close those Brutger Compa in Interest Successor trial court was errone- [¶ 62.] The nies, Inc., Appellants, Defendants suppress denying Hanson’s motion to ous urinalysis results. THERE INSUFFICIENT WAS Development Housing The South Dakota HANSON’S TO SUPPORT EVIDENCE Authority, Defendant. THE IMPROPER- WHEN CONVICTION No. 20393. ADMITTED URINE TEST RESULT LY IS DISREGARDED. Supreme Court of South Dakota. an is 64.] action tried “When Argued Sept. 1998. court, improperly is that presumption testimony disregarded.” Matter admitted Decided Jan. R.S.S., (S.D.1991) (citations omitted). However, presump- Hanson’s conviction tion not valid here. evidence, with

was based circumstantial

great placed deal of reliance the results of trial court refused to and,

suppress the results of the urine

therefore, it to be evi- considered admissible making It cannot when its verdict.

dence

presumed improperly that the admitted re- disregarded by

sults trial court were they clearly not.

because were 65.] should remand for

[¶ We reverse and

retrial. AMUNDSON, Justice, joins this

dissent.

Case Details

Case Name: State v. Hanson

Court Name: South Dakota Supreme Court

Date Published: Jan 20, 1999

Citation: 588 N.W.2d 885

Docket Number: None

Court Abbreviation: S.D.