State v. Buchholz
| Decision Date | 11 August 1999 |
| Docket Number | No. 20706.,20706. |
| Citation | 1999 SD 110,598 N.W.2d 899 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Kyle Louise BUCHHOLZ, aka Kyle Louise Bucholz, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
v.
Kyle Louise BUCHHOLZ, aka Kyle Louise Bucholz, Defendant and Appellant
No. 20706.
Supreme Court of South Dakota.
Considered on Briefs April 26, 1999.
Reassigned June 22, 1999.
Decided August 11, 1999.
Mary G. Keller, Huron, South Dakota, Attorney for defendant and appellant.
GILBERTSON, Justice (on reassignment).
[¶ 1.] Kyle Louise Buchholz appeals from her conviction of possession of controlled substance in violation of SDCL 22-42-5.1 We affirm.
FACTS
[¶ 2.] Kyle Buchholz was returning home to Redfield, South Dakota, at approximately 12:30 in the afternoon of March 16, 1998, after attending a weekend foosball tournament in Huron, South Dakota. The South Dakota Highway Patrol had set up a vehicle safety checkpoint along the highway Buchholz was traveling. As Buchholz approached the checkpoint, the highway patrol officer noticed a headlight was not working on the car she was driving. When Buchholz reached the safety checkpoint, the officer approached, asked for a driver's license and informed her a headlight was not working on the vehicle.
[¶ 3.] As Buchholz did not have her driver's license with her, the officer asked her to pull over and have a seat in his patrol vehicle. Once Buchholz was seated in the car, the officer ran her identification and asked her where she was coming from. Buchholz stated she had been at a foosball tournament in Huron.
[¶ 4.] The officer wrote Buchholz a warning ticket. As the two were walking back to Buchholz's car, the officer asked her if she was transporting drugs. Buchholz replied no. The officer then asked if he could search her vehicle and she consented. The officer located a fanny pack, and, upon opening it, methamphetamine was found along with various drug paraphernalia. The search continued and an empty vial believed to have contained methamphetamine was found in another bag. Field tests revealed the substances were methamphetamine.
[¶ 5.] Buchholz was placed under arrest for possession of controlled substances and taken to the Huron Regional Correction Center. Buchholz was booked and asked to provide a urine sample. She initially refused, however after being threatened with catheterization, she provided a urine
[¶ 6.] Prior to trial, defense counsel made a motion to suppress the results of the urine test. The trial court denied the motion. Defense counsel made two other motions, one for specific discovery of a search warrant affidavit authorizing the search of a Huron hotel during the foosball tournament and another for appointment of an expert witness on fingerprints. The trial court denied both these motions.
[¶ 7.] Buchholz was subsequently convicted of possession of a controlled substance (SDCL 22-42-5) and sentenced to five years in the South Dakota Women's Prison.
[¶ 8.] Buchholz appeals, arguing:
1. Whether the seizure of Buchholz's urine violated her constitutional rights.
2. Whether specific discovery of a search warrant affidavit should have been granted.
3. Whether a fingerprint expert should have been appointed.
4. Whether there was sufficient admissible evidence to support a finding of guilt.
5. Whether the sentence imposed violated Buchholz's constitutional rights.
STANDARD OF REVIEW
[¶ 9.] A trial court's findings of fact used to support or deny a motion to suppress are reviewed under the clearly erroneous standard. State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42; State v. Stetter, 513 N.W.2d 87, 91 (S.D.1994); State v. Corder, 460 N.W.2d 733, 736 (S.D. 1990). "This court's function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made." State v. Dreps, 1996 SD 142, ¶ 8, 558 N.W.2d 339, 341 (citing State v. Baysinger, 470 N.W.2d 840, 843 (S.D. 1991)). Whether an officer had a lawful basis to conduct a warrantless search is reviewed de novo as a question of law. State v. Ashbrook, 1998 SD 115, ¶ 6, 586 N.W.2d 503, 506 (citing State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citation omitted)).
DECISION
[¶ 10.] 1. Whether the seizure of Buchholz's urine violated her constitutional rights.
[¶ 11.] Our recent decision in State v. Hanson, 1999 SD 9, 588 N.W.2d 885 controls the disposition of this case. The issue in Hanson was exactly the same as is now before us: "[w]hether the seizure of [the defendant's] urine violated her constitutional rights." In Hanson our analysis concluded that no violation occurred. 1999 SD 9, ¶ 40, 588 N.W.2d at 893-4. There is no factual or legal reason in the case now before us to conclude otherwise.
[¶ 12.] The three disputed matters are: (1) whether there was probable cause to believe the evidence existed; (2) whether exigent circumstances existed; and (3) whether procurement of the sample was reasonable considering the interests of the accused and society. Hanson, 1999 SD 9 at ¶ 28, 588 N.W.2d at 892.
[¶ 13.] a. Probable cause
[¶ 14.] Buchholz's vehicle was legally stopped in a traffic check because she had a headlight out. When stopped she also failed to produce the driver's license she should have had in her possession. Buchholz informed the officer she had come from a foosball tournament in Huron. The officer was aware of possible drug use at the tournament. The officer also knew that Buchholz was rumored to use methamphetamine and her ex-husband had been arrested for possession of methamphetamine the week before.
[¶ 15.] After issuing a warning ticket, the officer subsequently asked if she would
[¶ 16.] This provides a stronger case for probable cause than existed in Hanson. Here Buchholz was the sole occupant of the car while in Hanson two other occupants were found in the car besides the defendant. An open vial containing methamphetamine is no less an indication of consumption of that substance than a half-empty open container of alcoholic beverages or an odor of alcoholic beverages emanating from a car. State v. Tilton, 1997 SD 28, ¶ 13, 561 N.W.2d 660, 663 (citing State v. Peterson, 407 N.W.2d 221, 223 (S.D.1987)). If the officer had probable cause to arrest Buchholz for possession, which he clearly did, "it would follow [he] had probable cause to test her for traces of the illegal substance for which she was arrested." Hanson 1999 SD 9 at ¶ 33, 588 N.W.2d at 892.
[¶ 17.] b. Exigent circumstances
[¶ 18.] "Exigent circumstances exist when there is a situation that demands immediate attention and there is no time to get a warrant." Hanson, 1999 SD 9 at ¶ 35, 588 N.W.2d at 892 (citing State v. Heumiller, 317 N.W.2d 126, 129 (S.D. 1982)). In Hanson, expert testimony was provided to show that marijuana does not dissipate from a person's system as quickly as does alcohol. Id. In this case an expert testified that methamphetamine use would only be detectable for two to three days.
[¶ 19.] Nevertheless exigent circumstances exist as a prompt test will indicate a higher concentration of the drug. This assists law enforcement in determining whether consumption of the drug was on the day of the stop or recent.
[¶ 20.] According to authority cited by the defendant, urine tests for methamphetamine are only accurate for 24 to 48 hours from consumption of the drug. Citing United States v. Pond, 36 MJ 1050, 1058 (AFCMR 1993). If the officer was confronted with a driver who manifested no outward signs of drug consumption yet recovered an open drug vial from the driver's car, it is logical to assume the period for testing had about run its course. It is illogical to require that the officer, who is sitting on a rural highway must somehow locate the Beadle County State's Attorney to draft an affidavit, find a Magistrate or Circuit Judge to issue the search warrant, and take the defendant to a medical facility to obtain a...
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