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South Dakota Supreme Court Announces Search Incident to Arrest Exception to Warrant Requirement Does Not Apply to Collection of Urine Sample Upon Arrest

by Dale Chappell

Law enforcement must secure a warrant prior to obtaining a urine sample from an arrestee, the Supreme Court of South Dakota held in an issue of first impression before the Court.

Hi Ta Lar was arrested after a lawful traffic stop turned up some marijuana and a pipe in the car. Though no drugs were found on Lar and he was only a passenger in the car, law enforcement ordered Lar to urinate in a cup to test for the presence of illegal drugs. Lar did not give his consent, and law enforcement did not obtain a warrant to collect his urine.

The test revealed that Lar had methamphetamine in his system, and he was charged with unauthorized ingestion of a controlled substance, among other drug charges. He filed a motion to suppress evidence obtained via chemical analysis of his urine, but the circuit court denied his motion.

Lar agreed to plead guilty to the ingestion of a controlled substance charge, and the State dropped the other charges. He was sentenced to three years in prison and filed an appeal. The issue before the South Dakota Supreme Court was “Whether law enforcement may, without a warrant, require an arrestee to provide a urine sample as a search incident to arrest.”

The Fourth Amendment to the U.S. Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Searches conducted without a warrant “are per se unreasonable under the Fourth Amendment,” absent recognized exception to the warrant requirement.

A search incident to arrest is a recognized exception that allows police “to search the person arrested in order to remove any weapons” and “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 (1969). Chimel held that police have the authority to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items” for the protection of the police, but the exception does not justify searching an “entire three-bedroom house” just because the arrest occurred within it. More recently, the U.S. Supreme Court extended the limitation noted in Chimel to prohibit “searching digital information” on a smartphone of an arrestee without a warrant. Riley v. California, 134 S. Ct. 2473 (2014).

While police do not need a warrant to obtain a breath test, the U.S. Supreme Court has held that this does not extend to a blood test without a warrant. Birchfield v. North Dakota, 136 S. CT. 2160 (2016). The Birchfield Court instructed that three factors are to be considered when deciding whether extending the search incident to arrest exception to a particular situation or procedure: (1) the degree of “physical intrusion” of the search, (2) the amount of information potentially revealed by the search, and (3) the potential “to cause any great enhancement in the embarrassment that is inherent in any arrest.”

Applying the foregoing factors to a breath test, the Birchfield Court determined that the degree of physical intrusion is minimal, only evidence of the suspected offense can be revealed, and the degree of embarrassment involved is minimal. In contrast, a blood test involves substantial physical intrusion of the arrestee’s body and can reveal private and potentially embarrassing information other than evidence of the suspected offense.

After discussing the applicable U.S. Supreme Court case law, the South Dakota Supreme Court held that “law enforcement must secure a warrant prior to obtaining a urine sample from an arrestee.” A urine sample is more analogous to a blood test than a breath test. Like the former, a urine sample can reveal private health information about the arrestee other than simply evidence of a crime. Additionally, “urinating into a specimen container under the watchful eye of a law-enforcement officer” is likely to cause “great enhancement in the embarrassment” of the arrestee.

Finally, just as the search of a smartphone can only produce data and nothing that could pose a safety risk to the arresting officers, the same holds true for the testing of an arrestee’s urine.

Based on the foregoing rationale, the Court concluded that the search incident to an arrest exception to the warrant requirement does not apply to the collection of a urine sample upon arrest.

As such, the search in question in this case violated Lar’s Fourth Amendment rights, and the evidence obtained by the chemical analysis of his urine should have been suppressed.

Accordingly, the Court reversed the circuit court and remanded the case. See: State v. Lar, 908 N.W.2d 181 (S.D. 2018). 

 

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