                        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-
