APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA HONORABLE VINCENT A. FOLEY Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON AUGUST 24, 2009
[¶1.] H.L.S. appeals the denial of her motion to suppress a urine sample obtained after she was arrested without a warrant on suspicion of possession and ingestion of marijuana. We reverse.
[¶2.] On April 14, 2008, the South Dakota Division of Criminal Investigation (DCI) and other law enforcement executed a valid search warrant on an apartment in Huron, South Dakota. The apartment was at that time rented to Amelia Wipf (Wipf). The search warrant permitted the premises to be searched, a search of both Wipf and Kunta Miles, and collection of urine samples from both individuals. At the time the warrant was executed, law enforcement found six individuals in the apartment. Among those six individuals was H.L.S., age seventeen.
[¶3.] DCI Agent Josh Bobzien was a part of the law enforcement team that executed the search warrant. Due to a previous injury, he was wearing a boot cast and was unable to enter the premises until after the entry team had secured it. When he entered the living room, he noted H.L.S. was seated and handcuffed along with the other five individuals in the living room. [¶4.] Bobzien was informed by other law enforcement officers that marijuana stems and seeds had been found in plain view on an end table in the living room, and that additional flakes were found elsewhere in the living room. In addition, officers located a paper bag in the living room, also in plain view, in which marijuana stems, seeds, and the tobacco remains of a hollowed-out cigar were found, which indicated a cigar had been used as a blunt (a cigar in which the tobacco has been removed and replaced with marijuana). Bobzien asked a general question of all six individuals present, including H.L.S., as to who was the owner of the marijuana. None of the six claimed ownership, and none volunteered the identity of the owner.
[¶5.] Bobzien arrested H.L.S. along with the other five individuals present. H.L.S. was transported to the Huron Regional Correction Center where she was compelled to give a urine sample. H.L.S.'s urine tested positive for tetrahydrocannabinol (THC), the essential active component in marijuana. H.L.S. was charged with one count of possessing two ounces or less of marijuana in violation of SDCL 22-42-6, and one count of ingesting a substance for purposes of becoming intoxicated in violation of SDCL 22-42-15.
[¶6.] H.L.S. moved to suppress the results of the urine analysis. At the suppression hearing, the parties stipulated that the urine analysis was not compelled under the terms of the search warrant. Instead, both parties stipulated that the theory under which law enforcement compelled H.L.S. to provide a urine sample was based on her presence at the apartment in which the marijuana stems, seeds, and flakes were found in plain view, and on the basis of the contents of the paper bag found in the living room.
[¶7.] At the hearing, Bobzien was the only law enforcement officer to testify who had been present at the scene. Bobzien was not asked and he did not testify as to where H.L.S. was in relation to the marijuana and paper bag at the time the entry team entered the apartment. Nor was Bobzien asked whether H.L.S. was in the living room when the entry team entered the apartment to execute the warrant. Bobzien was asked but was unable to testify as to how long H.L.S. had been in the apartment before the search warrant was executed. All that Bobzien could testify to was that when he entered the apartment he observed H.L.S. seated in the living room and in handcuffs and that at that time she was sitting approximately where the contraband had been found in plain view. Bobzien testified that he did not ask H.L.S. individually whether she knew to whom the marijuana belonged.
[¶8.] Bobzien's testimony with regard to H.L.S.'s physical location during the execution of the search warrant was as follows:
Q: And when did you first encounter H.L.S.?
A: She was at the residence [where the search was conducted]. . . .
Q: And so specifically, where and when did you encounter H.L.S.?
A: I believe when I -- At the time, I had a walking boot. I was physically handicapped. The entry team made entry into the residence, and once the residence was secured I entered into the apartment, and I ...