DocketNumber: 27951
Citation Numbers: 908 N.W.2d 181
Judges: Gilbertson, Kern
Filed Date: 2/21/2018
Status: Precedential
Modified Date: 10/16/2022
[¶1.] Hi Ta Lar appeals his conviction and sentence for *183unauthorized 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 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.
[¶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 ,
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 makes clear, 'the ultimate touchstone of the Fourth Amendment is "reasonableness." ' " Riley v. California , --- U.S. ----,
[¶8.] This case "concern[s] the reasonableness of a warrantless search incident to a lawful arrest."
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 ,
[¶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. ----,
[¶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 effects would 'untether the rule from the justifications underlying the Chimel exception' "-i.e., "harm to officers and destruction of evidence[.]" Riley , --- U.S. ----,
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. ----,
[¶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.
[¶12.] As for Chimel's second justification, it is undisputed that an arrestee's urine, like other biological samples, can contain evidence of crime.
[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.
[¶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. ----,
[¶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,
[¶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. ----,
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.
Skinner ,
[¶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 *187Amendment's "strong preference for searches conducted pursuant to a warrant[.]" Illinois v. Gates ,
[¶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).
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 , Just ice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.
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.
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.
Similarly, in Riley , police arrested a motorist for possessing concealed and loaded firearms in his vehicle. --- U.S. ----,
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.
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 ,
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. Arguments not raised at the trial level are deemed waived on appeal. Supreme Pork, Inc. v. Master Blaster, Inc. ,