United States v. Donald Twiss ( 1997 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-3831
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal         from     the     United
    States
    v.                                 * District Court for the
    * District of South Dakota.
    Donald Twiss,                          *
    *
    Appellant.                *
    ___________
    Submitted:        March 11, 1997
    Filed:              October
    20, 1997
    ___________
    Before MAGILL,1           JOHN    R.    GIBSON,      and     MURPHY,      Circuit
    Judges.
    ___________
    MAGILL, Circuit Judge.
    Donald Twiss pled guilty to the charge of unlawful
    possession of marijuana, in violation of 21 U.S.C. § 844
    (1994).    Twiss’s plea of guilty was conditioned on
    obtaining appellate review of two issues: (1) whether the
    district court2 erred by not
    1
    The Honorable Frank J. Magill was an active judge at the time this case was
    submitted and assumed senior status on April 1, 1997, before the opinion was filed.
    2
    The Honorable Richard H. Battey, Chief Judge, United States District Court for
    the District of South Dakota.
    suppressing the evidence obtained from a warrantless
    urinalysis, and (2) whether the district court erred by
    not suppressing inculpatory statements that Twiss made
    when he was confronted with the results of the
    urinalysis. We affirm.
    I.
    During the early evening of Tuesday, October 17,
    1995, a jeep traveling near Oglala, South Dakota, rolled
    over while going down a steep incline. Three occupants
    of the jeep, Donald Twiss, Twiss's wife, and Duane Ross,
    were able to walk away from the accident.     The fourth
    occupant, Ron Red Star, was pinned under the jeep’s roll
    bar and died in the accident.
    The three survivors walked to the nearby residence of
    Vivian Reed where the Twisses had left their car earlier.
    The three survivors did not speak with anyone in the Reed
    residence, nor did they call the police to report the
    accident.    Instead, the three survivors drove the
    Twisses’ car to Pine Ridge, South Dakota, to seek medical
    attention.
    Prior to reaching the hospital, however, the three
    survivors stopped at a pay phone near a service station
    in Pine Ridge shortly before 8:00 p.m. Twiss notified
    the police department of the roll-over accident.
    Oglala Sioux Tribe Criminal Investigator Stanley Star
    Comes Out and several other police officers arrived at
    the scene of the accident at about 8:30 p.m. that
    evening.   Star Comes Out found Red Star's body pinned
    -2-
    beneath the overturned jeep and found a beer clutched in
    Red Star’s hand.       The police officers discovered
    marijuana both in Red Star's pocket and in a nylon sports
    bag in the front area of the jeep. The sports bag also
    contained mail that belonged to the owner of the jeep,
    Robert Martin.    Lastly, the police officers found the
    remains of some smoked marijuana cigarettes in the jeep.
    -3-
    At about 9:00 p.m., Star Comes Out called Special
    Agent   Douglas   Grell   of   the  Federal   Bureau   of
    Investigation (FBI). Star Comes Out briefed agent Grell
    about the investigation of the accident and informed
    Grell of the marijuana found at the scene of the accident
    in Red Star’s pocket and in the nylon sports bag.
    Star Comes Out then went to the hospital to interview
    the accident survivors. Twiss and Ross told Star Comes
    Out that Red Star, the deceased occupant of the jeep, had
    been driving the jeep when it rolled over. When asked
    why they had not called the police from Vivian Reed's
    residence, Twiss and Ross gave different answers. Ross
    said that he did not call the police from Vivian Reed’s
    residence because no one was home. Twiss explained that
    he did not want to use Reed’s phone because the mother of
    Red Star lived at the Reed residence and Twiss did not
    want to tell her about her son’s death.        Twiss also
    stated that he did not use the telephone at the Reed
    residence because he wanted to take his wife to Pine
    Ridge for medical attention immediately. Star Comes Out
    observed that both Twiss and Ross appeared to be
    intoxicated during the interview.
    Before Star Comes Out left the hospital, Captain
    Lionel Iron Moccasin of the Oglala Sioux Tribe Public
    Safety Commission asked Star Comes Out which of the
    survivors was going to be given a substance test. Star
    Comes Out replied that he would ask agent Grell. Star
    Comes Out then returned to the police station.
    At the police station, Star Comes Out contacted agent
    Grell for the second time.       There is contradictory
    -4-
    testimony about whether Star Comes Out relayed to agent
    Grell the information that Star Comes Out obtained when
    he interviewed Twiss and Ross. Twiss contends that, at
    the time of the second phone call to agent Grell, Star
    Comes Out had not yet interviewed either Twiss or Ross.
    At the suppression hearing, Star Comes Out was confused
    as to whether he conducted his interview of Twiss before
    or after the second phone call to agent Grell. See Trial
    Tr. 91:24-25 to 92:1; 94:21-24 (testimony of Star Comes
    Out). However, Star Comes Out testified that, prior to
    his
    -5-
    second conversation with agent Grell, Star Comes Out had
    observed Twiss’s demeanor and that Twiss smelled of
    alcohol.    Trial Tr. 93:2-24.     Star Comes Out also
    testified that, before Star Comes Out spoke with agent
    Grell for the second time, another law enforcement
    official in the emergency room, Harold Brewer, may have
    told Star Comes Out that Twiss appeared to be
    intoxicated. Trial Tr. 102:13-23. Moreover, agent Grell
    testified that, prior to agent Grell’s ordering of the
    urine test, Star Comes Out had told him that Twiss and
    Ross appeared to be intoxicated. Trial Tr. 10:11-12.
    During Star Comes Out’s second conversation with
    agent Grell, agent Grell ordered that urine samples be
    taken from Twiss, Twiss’s wife, and Ross. At the time
    agent Grell ordered the urine tests, no warrant had been
    issued, none of the survivors were under arrest on either
    federal or tribal charges, and none had been Mirandized.
    Agent Grell has testified, however, that at the time he
    gave the order, he suspected that someone besides Red
    Star was driving the jeep because Red Star died with a
    beer in his hand.
    Captain Iron Moccasin took the urine samples without
    advising the survivors that they could refuse to give the
    urine samples or that they were free to leave.        The
    sample from Twiss’s wife was taken at 9:50 p.m., the
    sample from Twiss was taken at 10:00 p.m., and the sample
    from Ross was taken at 10:30 p.m. Twiss’s test showed
    that he had consumed marijuana.
    After agent Grell received the urinalysis reports, he
    interviewed Twiss. Agent Grell confronted Twiss with the
    -6-
    urinalysis results, implying that the results were
    incriminating. Agent Grell also advised Twiss that Twiss
    was not under arrest, that Twiss would not be arrested at
    the conclusion of the interview, and that Twiss did not
    have to answer any questions or provide any information
    if he did not want to do so voluntarily.
    -7-
    Twiss confessed to having used marijuana at his home
    in Porcupine, South Dakota, on the Saturday night before
    the accident. Twiss was subsequently charged with having
    possessed marijuana on or about October 14, 1995, the
    Saturday before the October 17 accident.
    Following a hearing, a United States magistrate judge
    issued an order on May 3, 1996, suppressing the evidence
    derived from the urine sample taken from Twiss, including
    the admissions Twiss made when he was confronted with the
    results of the urinanalysis.     The government appealed
    this order, and the district court reversed the order.
    Before   the   district   court,   Twiss  entered   a
    conditional guilty plea to the charge of unlawful
    possession of marijuana, in violation of 21 U.S.C. § 844.
    Twiss now appeals.
    II.
    Twiss argues that the district court erred by not
    suppressing the results of the warrantless urinalysis.
    Specifically, Twiss asserts that there was no probable
    cause to justify this warrantless search. We disagree.
    A compelled urinalysis is a search under the Fourth
    Amendment, see Skinner v. Railway Labor Executives'
    Ass'n, 
    489 U.S. 602
    , 617 (1989). We review de novo the
    district court's determination of the existence of
    probable cause sufficient to justify a warrantless
    search. See Ornelas v. United States, 
    116 S. Ct. 1657
    ,
    1659 (1996). Probable cause sufficient for a warrantless
    search exists "where the known facts and circumstances
    are sufficient to warrant a man of reasonable prudence in
    -8-
    the belief that contraband or evidence of a crime will be
    found." 
    Id. at 1661.
    In this case, we have no doubt that a person of
    reasonable prudence would believe that evidence of a
    crime would be discovered through a urinalysis of Twiss.
    -9-
    Twiss was one of three survivors involved in a single-
    vehicle accident that caused the death of Red Star.
    Despite the serious and tragic nature of the accident,
    and the fact that the body of Twiss’s friend lay pinned
    beneath the roll bar of the jeep, Twiss left the accident
    scene and failed to contact the police at his first
    opportunity. The police found evidence of both alcohol
    and marijuana at the accident scene, raising the
    inference that intoxication had played a role in Red
    Star’s death. The police further suspected that Red Star
    had not been driving,3 which suggested that Twiss could
    have been the driver whose actions resulted in Red Star’s
    death. At the hospital, Star Comes Out observed Twiss’s
    demeanor, smelled alcohol on Twiss, and concluded that
    Twiss was likely intoxicated, which was consistent with
    the drug and alcohol use indicated by the evidence found
    at the accident scene. In all the circumstances of this
    case, the police could have reasonably believed that
    Twiss had been using marijuana while he was a passenger
    in the jeep, or the police could have reasonably believed
    that Twiss was driving the jeep while intoxicated, either
    3
    Contrary to the dissent’s assertion that it was "unlikely that anyone other than
    Red Star was driving," slip op. at 9, both agent Grell and Star Comes Out testified at
    length to the reasons why they suspected that Red Star was likely not driving the jeep
    at the time of the accident. See Trial Tr. 9:1-5 ("[The other officers and Star Comes
    Out] found Mr. Red Star clutching a bottle of beer. I suppose it’s possible that he
    could have cranked it [the steering wheel during the roll over] hard to the left with one
    hand, but it certainly had me wondering if he was the driver when he was holding a
    bottle of beer in one hand.” (testimony of agent Grell)); Trial Tr. 57:21-23 (“It was
    unusual for an individual to drive a vehicle and to hold or clutch a beer bottle in his
    hand after being involved in an accident. It was just unusual to me.” (testimony of Star
    Comes Out)); Trial Tr. 85:14-16 (“From my observations it’s possible that the
    passenger can be thrown over to the driver’s side and the driver’s side can be ejected
    [during a roll-over accident].” (testimony of Star Comes Out)).
    -10-
    by alcohol or marijuana, or both, and thereby caused the
    death of Red Star. In either case, the police could have
    believed that they had to act promptly to obtain evidence
    of Twiss’s possibly intoxicated state.
    -11-
    Twiss argues that the FBI agent in charge of the
    investigation, agent Grell, did not know all of the facts
    that Star Comes Out did, and consequently agent Grell did
    not have probable cause to order the search. What agent
    Grell did or did not know, however, is not relevant to
    the probable cause inquiry.
    We have held that “probable cause [to support a
    warrantless search] may be based on the collective
    knowledge of all law enforcement officers involved in an
    investigation and need not be based solely upon the
    information within the knowledge of the officer on the
    scene if there is some degree of communication . . . .”
    United States v. Horne, 
    4 F.3d 579
    , 585 (8th Cir. 1993)
    (emphasis added), cert. denied, 
    510 U.S. 1138
    (1994); cf.
    United States v. Rich, 
    795 F.2d 680
    , 682 (8th Cir. 1986)
    (“[T]he [C]ourt does not merely look to the actual
    knowledge of the arresting officer, but to the combined
    knowledge of all the officers involved.”); United States
    v. Rose, 
    541 F.2d 750
    , 756 (8th Cir. 1976) (“In order for
    an officer to have probable cause to make an arrest
    without a warrant it is not necessary that he have
    personal knowledge of all items of information which
    taken together constitute probable cause.      The court
    looks to the collective knowledge and information of all
    the officers involved.”).
    In Twiss’s case, whether agent Grell knew the results
    of Star Comes Out’s interviews with Twiss and Ross before
    agent Grell ordered the urinalysis was a point of
    dispute. However, no one disputes that Star Comes Out
    had described the accident scene to agent Grell before
    agent Grell ordered the urinalysis. Thus, looking to the
    -12-
    collective knowledge of all the officers, probable cause
    existed to support the warrantless urinalysis.
    III.
    Twiss argues that the district court erred by failing
    to suppress Twiss's confession. We disagree.
    -13-
    Twiss’s argument is entirely premised on the
    impropriety of the urinalysis. Because the urinalysis
    was not improper, the district court did not err in
    refusing to suppress the confession Twiss made when he
    was confronted with the results of the urinalysis.
    IV.
    For the foregoing reasons, we affirm the decision of
    the district court.
    JOHN R. GIBSON, Circuit Judge, dissenting.
    I respectfully dissent.
    There was no probable cause to justify this search.
    The court's finding of probable cause rests solely on
    speculation, rather than on the collective knowledge of
    law enforcement officials.    We make an independent de
    novo review of the ultimate question of probable cause to
    make a warrantless search. See Ornelas v. United States,
    
    116 S. Ct. 1657
    , 1663 (1996). We review for clear error,
    however, findings of historical fact and give "due weight
    to inferences drawn from those facts" by local law
    enforcement officers.    See 
    id. As we
    deal with a
    warrantless search, the burden of proof is on the
    government.   See Turk v. United States, 
    429 F.2d 1327
    (8th Cir. 1970); see also United States v. Marshall, 
    986 F.2d 1171
    , 1173 (8th Cir. 1993).
    FBI Agent Grell made the decision that a urine sample
    should be obtained from Twiss.
    -14-
    The court supports its finding of probable cause on
    evidence of alcohol and marijuana which authorities found
    at the accident scene. Star Comes Out, who was the only
    testifying witness who had investigated the scene of the
    accident, however, testified that there was no physical
    evidence linking the drugs to Twiss. The court also
    -15-
    supports its finding of probable cause on the suspicion
    that Red Star had not been driving.    Star Comes Out,
    however, stated that there was no physical evidence at
    the scene that anyone other than Red Star had been
    driving the vehicle.   The position of Red Star's body
    near the driver's seat, combined with the fact that Red
    Star had a family relationship with the owner of the
    Jeep, made it unlikely that anyone other than Red Star
    was driving.
    Finally, the court relies on Star Comes Out's
    interview of Twiss and Ross in support of its finding of
    probable cause, though the court acknowledges the
    disputed testimony concerning the timing of the interview
    in relation to the urinalysis.       In discussing this
    discrepancy the court states that Star Comes Out was
    confused as to whether he interviewed Twiss and Ross
    before or after the second call to Grell, and that he
    testified that he told Grell that both Twiss and Ross
    appeared intoxicated during the interview.       Although
    Grell testified that Star Comes Out told him that Star
    Comes Out had interviewed Twiss, who appeared to be
    intoxicated during the interview, Star Comes Out's
    testimony, which is the most direct and probative
    evidence, plainly does not support this. In fact, the
    transcript of Star Comes Out's testimony demonstrates
    that he made no assertion that he interviewed Twiss
    before his second phone call to Grell.       Further, the
    record shows Star Comes Out did not interview Twiss
    before his second call to Grell.
    Star Comes Out testified that he went to the hospital
    to interview the survivors, but was not able to talk to
    -16-
    any of them both because the hospital emergency staff was
    assisting them and relatives were coming in. He stated
    that he then went back to the jail without discussing the
    accident with anybody at the hospital at that time. Star
    Comes Out testified that before his second contact with
    Grell he was not able to speak with anybody about the
    incident with the possible exception of a Harold Brewer,
    a person at the emergency room that evening.         This
    testimony is in stark contradiction to the court's
    finding today, and shows that Star Comes Out did not
    interview Twiss before his second phone call to Grell.
    -17-
    Star Comes Out also testified that he only had one
    interview with Twiss and that he prepared a written
    report following this interview.        Star Comes Out
    testified that at the time of this interview he "didn't
    know . . . if the urine test was taken or not." Twiss's
    attorney asked Star Comes Out whether this interview
    occurred about 11:20 p.m., and Star Comes Out responded
    that he could not remember.4    Authorities took Twiss's
    urine sample at 10:00 p.m. Therefore Grell, in making
    his decision to order urine samples, could not have
    relied upon Star Comes Out's observation that Twiss was
    intoxicated during the interview.      Accordingly, the
    court's reliance on Star Comes Out's interview of Twiss
    for its probable cause determination is not supported by
    the record.
    Further, and most significantly, Grell testified that
    he received the first call from Star Comes Out at
    approximately 9:45 p.m. and had the second conversation
    with Star Comes Out a minimum of an hour later.       The
    authorization to give the urine test was given by Grell
    to Star Comes Out in this second call. The evidence thus
    4
    Although Twiss's counsel questioned Star Comes Out about this report, the
    written report was not formally introduced into evidence. Twiss, however, discussed
    the report in, and appended the report to, his brief on appeal to the district court, as
    well as to this court. Though we do not normally consider evidence not in the record
    below, we simply observe that the report confirms that Star Comes Out's only interview
    of Twiss occurred at 11:20 P.M. We may consider this evidence simply for the
    purpose of clarifying the record. See Dakota Indus., Inc. v. Dakota Sportswear, Inc.,
    
    988 F.2d 61
    , 63-64 (8th Cir. 1993). Because authorities took Twiss's urine sample at
    10:00 P.M., Star Comes Out thus interviewed Twiss one hour and twenty minutes after
    the drug test.
    -18-
    demonstrates that Grell's authorization was given after
    the urinalysis had been taken at 10 p.m.
    Star Comes Out did not smell marijuana when he talked
    to Twiss in the hospital, and Officer Lionel Iron
    Moccasin gave similar testimony.
    -19-
    Grell asked for a urine test rather than a blood
    test, although generally blood alcohol tests were ordered
    for determining the amount of alcohol in someone's
    system. He has never taken blood tests to determine the
    presence of marijuana or other drugs, but generally urine
    tests are used for this purpose. Grell wanted the urine
    sample taken in this case to determine the presence of
    marijuana, but also to determine the presence of alcohol.
    Grell knew that a blood test would only tell him the
    presence of marijuana in the system, but couldn't
    quantify it, whereas a urine test would give him this
    information.
    Star Comes Out testified that one bag of marijuana
    was found in Red Star's pocket, and one bag in a sports
    bag which had mail in it addressed to Robert Martin, the
    owner of the car. This information was not related to
    Grell. As the court recognizes today, however, it is the
    collective knowledge of the officers that is material,
    and this must apply to exculpatory evidence, and defeats
    a conclusion of probable cause.
    The court today strives mightily to establish
    probable cause, but the word "probable" stands in stark
    contradiction to the words found on pages 6 and 7 and
    particularly footnote 3 of the court's opinion, such as
    "suspected"; which "suggested that Twiss could have been
    the driver"; "Twiss was likely intoxicated, which was
    consistent with drug and alcohol use"; "I suppose"; "It
    was just unusual to me"; and "It's possible that the
    passenger can be thrown over the driver's side and the
    driver's side can be ejected." (Emphasis added)
    -20-
    From these statements the court finds it probable
    that Twiss could have been using marijuana while a
    passenger in the Jeep and police could have believed that
    he was the driver while intoxicated, either by alcohol or
    marijuana or both, and caused the death of Red Star.
    Probable cause is not so elastic or imaginative a
    standard or concept, and the burden was on the
    government.
    -21-
    In light of this evidence I conclude the Magistrate
    Judge properly ruled that there was no probable cause to
    justify this warrantless search and that the results of
    the test must be suppressed. Further, there was evidence
    that Twiss made the incriminating statements after Grell
    confronted him with the results of the test. Therefore,
    under the fruit of the poisonous tree doctrine, the
    incriminating statements must also be suppressed. See
    United States v. Carter, 
    884 F.2d 368
    , 374 (8th Cir.
    1989).
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -22-