#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
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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).
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[¶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 . . .)
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                                     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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