U.S. v. Twiss

• Decision Date: 25 November 1997
• Docket Number: No. 96-3831,96-3831
• Citation: 127 F.3d 771
• Parties: UNITED STATES of America, Appellee, v. Donald TWISS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 771

127 F.3d 771

UNITED STATES of America, Appellee, v. Donald TWISS, Appellant.

No. 96-3831.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1997.

Decided Oct. 20, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 25, 1997.

Ted L. McBride, Rapid City, SD, argued (Karen E. Schreier, U.S. Attorney, on the brief), for Appellee.

Steven J. Oberg, Rapid City, SD, argued, for Appellant.

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 court ² erred by not 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 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.

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 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 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 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.

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 urinalysis. 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, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (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, 517 U.S. 690, ----, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (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 the belief that contraband or evidence of a crime will be found." Id. at ----, 116 S.Ct. 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.

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 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.

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...