The Honor able Frank J. Magill was an active judge at the time this case wa s 1 submitted and assumed senior status on April 1, 1997, before the opinion was filed. The Honorable Richard H. Battey, Chief Judge, United States District Court for 2 the District of South Dakota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3831

___________ United States of America, *
* Appellee, *
* Appeal from the Unite d States v. * District Court for the
* District of South Dakota. Donald Twiss, *
* Appellant. *

___________ Submitted: March 11, 1997 Filed: Octobe r 20, 1997

___________ Befor e MAGILL, JOHN R. GIBSON, and MURPHY, Circui t 1 Judges.

___________ MAGILL, Circuit Judge.

Do nald Twiss pled guilty to the charge of unlawfu l possessionof marijuana, in violation of 21 U.S.C. § 844 (1994). Twiss’s plea of guilty was conditioned o n obtaining appellate review of two issues: (1) whether the district court erred by not 2-2-

supp ressing the evidence obtained from a warrantles s urinalysis, and (2) whether the district court erred b y not suppressing inculpatory statements that Twiss mad e when he was confronted with the results of th e urinalysis. We affirm.

I.
During the early evening of Tuesday, October 17 , 1995, a je ep traveling near Oglala, South Dakota, rolled
over wh ile going down a steep incline. Three occupant s of the jee p, Donald Twiss, Twiss's wife, and Duane Ross,
were able to walk away from the accident. The fourt h 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 o f Vivian Reed where the Twisses had left their car earlier. The three survivors did not speak with anyone in the Reed resid ence, nor did they call the police to report th e acci dent. Instead, the three survivors drove th e Twisses’ car to Pine Ridge, South Dakota, to seek medical attention.

Prior to reaching the hospital, however, the thre e survivo rs stopped at a pay phone near a service statio n in Pin e Ridge shortly before 8:00 p.m. Twiss notifie d the police department of the roll-over accident.
Oglala Sioux Tribe Criminal Investigator Stanley Sta r Come s Out and several other police officers arrived a t the scene of the accident at about 8:30 p.m. tha t eveni ng. Star Comes Out found Red Star's body pinne d-3-

beneath th e overturned jeep and found a beer clutched in Red Star’s hand. The police officers discovere d marijuana both in Red Star's pocket and in a nylon sports bag in the front area of the jeep. The sports bag als o contai ned mail that belonged to the owner of the jeep , Robert Martin. Lastly, the police officers found th e remains of some smoked marijuana cigarettes in the jeep.-4-

At ab out 9:00 p.m., Star Comes Out called Specia l Agen t Douglas Grell of the Federal Bureau o f Investigat ion (FBI). Star Comes Out briefed agent Grell abou t the investigation of the accident and informe d 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 intervie w the acc ident survivors. Twiss and Ross told Star Come s Out that Red Star, the deceased occupant of t he jeep, had been driving the jeep when it rolled over. When aske d why t hey had not called the police from Vivian Reed' s residence, Twiss and Ross gave different answers. Ros s 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 t he mother of Red Star lived at the Reed residence and Twiss did no t want to tell her about her son’s death. Twiss als o stated that he did not use the telephone at the Ree d resi dence because he wanted to take his wife to Pin e Ridge for medical attention immediately. Star Comes Out observ ed that both Twiss and Ross appeared to b e intoxicated during the interview.

Before Star Comes Out left the hospital, Captai n Lionel Iron Moccasin of the Oglala Sioux Tribe Publi c Safet yCommission asked Star Comes Out which of th e survi vors was going to be given a substance test. Sta r Comes Out replied that he would ask agent Grell. Sta r Comes Out then returned to the police station.

At the police station, Star Comes Out contacted agen t Grell for the second time. There is contradictor y-5-

testimony about whether Star Comes Out relayed to agen t Grell the information that Star Comes Out obtained whe n he inte rviewed Twiss and Ross. Twiss contends that, a t the time of the second phone call to agent Grell, Sta r Comes O ut had not yet interviewed either Twiss or Ross

. At the suppression hearing, Star Comes Out was confuse d as to whet her 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 Come s Out). However, Star Comes Out testified that, prior t o his-6-

second con versation with agent Grell, Star Comes Out had obse rved Twiss’s demeanor and that Twiss smelled o f alcohol. Trial Tr. 93:2-24. Star Comes Out als o test ified that, before Star Comes Out spoke with agen t Grel l for the second time, another law enforcemen t official in the emergency room, Harold Brewer, may hav e told St ar Comes Out that Twiss appeared to b e intoxicated. Trial Tr. 102:13-23. Moreover, agent Grell test ified that, prior to agent Grell’s ordering of th e urine test, Star Comes Out had told him that Twiss an d Ross appeared to be intoxicated. Trial Tr. 10:11-12.
During Star Comes Out’s second conversation wit h agen t Grell, agent Grell ordered that urine samples b e taken from Twiss, Twiss’s wife, and Ross. At the tim e agent Grel l ordered the urine tests, no warrant had been issued, none of the survivors were under arre st on either federal or tribal charges, and none had been Mirandized. Agent G rell has testified, however, that at the time h e gave th e order, he suspected that someone besides Re d Star was driving the jeep because Red Star died with a beer in his hand.
Captain Iron Moccasi n took the urine samples without advising the survivors that they could refuse to give the urine samples or that they were free to leave. Th e samp le from Twiss’s wife was taken at 9:50 p.m., th e sample from Twiss was taken at 10:00 p.m., an d the sample fromRoss was taken at 10:30 p.m. Twiss’s test showe d that he had consumed marijuana.

After agent Grell received the urinalysis reports, h e interviewed Twiss. Agent Grell confronted Tw iss with the-7-

ur inalysis results, implying that the results wer e incriminating. Agent Grell also advised Twis s that Twiss was not under arrest, that Twiss would not be arrested at the con clusion of the interview, and that Twiss did no t have to answer any questions or provide any informatio n if he did not want to do so voluntarily.-8-

Twiss confessed to h aving used marijuana at his home in Porcupi ne, South Dakota, on the Saturday night before the accident. Twiss was subsequently chargedwith having possess ed marijuana on or about October 14, 1995, th e Saturday before the October 17 accident.
Following a hearing, a United States magistrate judg e issued an order on May 3, 1996, suppressing the evidence derived from the urine sample taken from Twis s, including the admissions Twiss made when he was confron ted with the
resu lts of the urinanalysis. The government appeale d this order, and the district court reversed the order.

Before the district court, Twiss entered a cond itional guilty plea to the charge of unlawfu l possession of marijuana, in violation of 21 U .S.C. § 844. Twiss now appeals. II.

Twiss argues that the district court erred by no t suppressing the results of the warrantless urinalysis

. Spec ifically, Twiss asserts that there was no probabl e cause to justify this warrantless search. We disagree.

A compe lled urinalysis is a search under the Fourt h Ame ndment, see Skinner v. Railway Labor Executives ' Ass 'n , 489 U.S. 602, 617 (1989). We review de novo th e di strict court's determination of the existence o f pr obable cause sufficient to justify a warrantles s searc h. See Ornelas v. United States , 116 S. Ct. 1657 , 1659 (1996). Probable cause sufficient for a warrantless
sear ch exists "where the known facts and circumstance s are sufficient to warrant a man of reasonable prudence in-9-

the belief that contraband or evidence of a c rime will be found." Id. at 1661.

In th is case, we have no doubt that a person o f
reas onable prudence would believe that evidence of a crime woul d be discovered through a urinalysis of Twiss.Cont

rary to the dissent’s assertion that it was "unlikely that anyone other than 3 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 atthe 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 h e could have cranked it [the steering wh eel during the roll over] hard to the left with one ha nd, but it certainly had me wondering if he was the driver when he was holding a bottle of be er in one hand.” (testimony of agent Grell)); Trial Tr. 57:21-23 (“It wa s unu sual for an individual to drive a vehicle and to hold or clutch a beer bottle in hi s 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 th e 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- Twiss was one of three survivors involved in a single

vehic le accident that caused the death of Red Star

. Desp ite the serious and tragic nature of the accident , and t he fact that the body of Twiss’s friend lay pinne d beneath the roll bar of the jeep, Twiss left the accident
sce ne and failed to contact the police at his firs t opportunity. The police found evidence of both alcoho l and marijuana at the accident scene, raising th e in ference that intoxication had played a role in Re d Star’s death. The police further suspected t hat Red Star had not been driving, which suggested that Twiss coul d 3 have been the driver whose actions resulted i n Red Star’s death. At the hospital, Star Comes Out observed Twiss’s deme anor, smelled alcohol on Twiss, and concluded tha t Twis s was likely intoxicated, which was consistent wit h the drug a nd alcohol use indicated by the evidence found at the acc ident scene. In all the circumstances of this
case , the police could have reasonably believed tha t Twiss h ad been using marijuana while he was a passenge r in the jeep, or the police could have reasona bly believed that Twiss was driving the jeep while intoxic ated, either-11-

by alcohol or marijuana, or both, and thereby caused the death of Red Star. In either case, the polic e could have believed that they had to act promptly to obt ain evidence of Twiss’s possibly intoxicated state.-12-

Twi ss argues that the FBI agent in charge of th e investigation, agent Grell, did not know all of the facts that Star Comes Out did, and consequently age nt Grell did not have p robable cause to order the search. What agent Grell did or did not know, however, is not relevant t o the probable cause inquiry.

We have held that “probable cause [to support a warr antless search] may be based on the collectiv e knowledge of all law enforcement officers involved in an inves tigation and need not be based solely upon th e info rmation within the knowledge of the officer on th e sce ne if there is some degree of communication

. . . . ” Unite d States v. Horne , 4 F.3d 579, 585 (8th Cir. 1993 ) (emphasis added), cert. denied , 510 U.S. 1138 (1994); cf. United Sta tes v. Rich , 795 F.2d 680, 682 (8th Cir. 1986) (“[T]he [C]ourt does not merely look to the actua l knowledge of the arresting officer, but to the combine d 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 arres t wi thout a warrant it is not necessary that he hav e pers onal knowledge of all items of information whic h take n together constitute probable cause. The cour t looks to t he collective knowledge and information of all the officers involved.”).

InTwiss’s case, whether agent Grell knew the result s of Star Comes Out’s interviews with Twiss andRoss before age nt Grell ordered the urinalysis was a point o f disput e. However, no one disputes that Star Comes Ou t had described the accident scene to agent Grell befor e agent Grell ordered the urinalysis. Thus, lo oking to the-13-

collective knowledge of all the officers, probable cause existed to support the warrantless urinalysis.

III.

Twiss argues that the district court erred by failin g to suppress Twiss's confession. We disagree.-14-

Tw iss’s argument is entirely premised on th e impr oprietyof the urinalysis. Because the urinalysi s was not improper, the district court did not err i n refu sing to suppress the confession Twiss made when h e was confronted with the results of the urinalysis.

IV.
For the foregoing re asons, we affirm the decision of the district court.
JOHN R. GIBSON, Circuit Judge, dissenting.
I respectfully dissent.

There w as no probable cause to justify this search

. The cou rt's finding of probable cause rests solely o n spec ulation, rather than on the collective knowledge o f law enf orcement officials. We make an independent d e novo review of the ultimate question of proba ble cause to make a warrantless search. See Ornelas v. Un ited 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 la w en forcement officers. See id. As we deal with a war rantless search, the burden of proof is on th e gover nment. See Turk v. United States , 429 F.2d 132 7 (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 sampl e should be obtained from Twiss.-15-

The cou rt supports its finding of probable cause o n evidence of alcohol and marijuana which autho rities found at the acc ident scene. Star Comes Out, who was the only testifying witness who had investigated the scene of the acci dent, however, testified that there was no physica l evidence linking the drugs to Twiss. The court also-16-

supports its finding of probable cause on the suspicio n that Red Star had not been driving. Star Comes Out , howe ver, stated that there was no physical evidence a t th e scene that anyone other than Red Star had bee n drivi ng the vehicle. The position of Red Star's bod y near th e driver's seat, combined with the fact that Re d Star had a family relationship with the owner of th e Jeep, made it unlikely that anyone other than Red Sta r 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 th e disputed testimony concerning the timing of t he interview in relation to the urinalysis. In discussing thi s di screpancythe court states that Star Comes Out wa s co nfused as to whether he interviewed Twiss and Ros s befor e or after the second call to Grell, and that h e testi fied that he told Grell that both Twiss and Ros s appe ared intoxicated during the interview. Althoug h Grell testified that Star Comes Out told him that Sta r Comes Out had interviewed Twiss, who appeared to b e in toxicated during the interview, Star Comes Out' s test imony, which is the most direct and probativ e eviden ce, plainly does not support this. In fact, th e trans cript of Star Comes Out's testimony demonstrate s that he made no assertion that he interviewed Twis s befo re his second phone call to Grell. Further, th e recor d shows Star Comes Out did not interview Twis s before his second call to Grell.

Star Comes Out testified that he went to the hospita l to in terview the survivors, but was not able to talk t o-17-

any of them both because the hospital emergen cy staff was assisti ng them and relatives were coming in. He state d that he then went back to the jail without di scussing the accident with anybody at the hospital at that time. Star Comes Out testified that before his second contact wit h Grell he was not able to speak with anybody about th e incident w ith the possible exception of a Harold Brewer,
a person at the emergency room that evening. Thi s test imonyis in stark contradiction to the court' s find ing today, and shows that Star Comes Out did no t interview Twiss before his second phone call to Grell.Although Twiss's counsel questioned Star Comes Out about this report, th e 4 written repo rt was not formally introduced into evidence. Twiss, however, discussed th e report in, and appended the report to, his brief on appeal to the district court, a s 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 Twi ss occurred at 11:20 P.M. We may consider this evidence simply for th e purpose of cl arifying 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- Star Comes Out also testified that he only had on e inter view with Twiss and that he prepared a writte n repo rt following this interview. Star Comes Ou t testifi ed that at the time of this interview he "didn' t know . . . if the urine test was taken or not." Twiss's atto rneyasked Star Comes Out whether this intervie w occurred about 11:20 p.m., and Star Comes Out responde d that he could not remember. Authorities took Twiss' s 4 urine sample at 10:00 p.m. Therefore Grell, in makin g his d ecision to order urine samples, could not hav e relied upon Star Comes Out's observation that Twiss wa s int oxicated during the interview. Accordingly, th e court's reliance on Star Comes Out's interview of Twis s for its pr obable cause determination is not supported by the record.

Further, and most significantly, Grell testified tha t he received the first call from Star Comes Out a t appr oximately9:45 p.m. and had the second conversatio n with Star Comes Out a minimum of an hour later. Th e authori zation to give the urine test was given by Grel l to Star Comes Out in this second call. The e vidence thus-19-

demonstrates that Grell's authorization was given afte r the urinalysis had been taken at 10 p.m.

Star Comes Out did not smell marijuana when he talke d to Twiss in the hospital, and Officer Lionel Iro n Moccasin gave similar testimony.-20-

Gre ll asked for a urine test rather than a bloo d test, although generally blood alcohol tests were ordered for determining the amount of alcohol in someone' s system. H e has never taken blood tests to determine the presence of marijuana or other drugs, but gen erally urine tests are used for this purpose. Grell wanted the urine sample taken in this case to determine the presence o f marijuana, but also to determine the presence of alcohol. Grell knew that a blood test would only tell him th e pres ence of marijuana in the system, but couldn' t quant ifyit, whereas a urine test would give him thi s information.

St ar Comes Out testified that one bag of marijuan a was found in Red Star's pocket, and one bag in a sport s bag which had mail in it addressed to Robert Martin, the
owner of the car. This information was not related t o Grell. As the court recognizes today, howeve r, it is the coll ective knowledge of the officers that is material , and this m ust apply to exculpatory evidence, and defeats a conclusion of probable cause.

The court today strives mightily to establis h probable cause, but the word "probable" stands in star k contr adiction to the words found on pages 6 and 7 an d particularly footnote 3 of the court's opinion, such a s

" suspected "; which " suggested that Twiss could have been the driver"; "Twiss was likelyintoxicated, which wa s consistent with drug and alcohol use"; "I suppose"; "It
was just unusual to me"; and "It's possible that th e passen ger can be thrown over the driver's side and th e driver's side can be ejected." (Emphasis added)-21-

From these statements the court finds it probabl e that Twiss could have been using marijuana while a passenger in the Jeep and police could have b elieved that he was the driver while intoxicated, either by alcohol or mari juana or both, and caused the death of Red Star

. Pro bable cause is not so elastic or imaginative a stan dard or concept, and the burden was on th e government.-22-

In ligh t of this evidence I conclude the Magistrat e Judge prop erly ruled that there was no probable cause to justify this warrantless search and that the results o f 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, th e incr iminating statements must also be suppressed. Se e Unit ed States v. Carter , 884 F.2d 368, 374 (8th Cir

. 1989).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

.