The Honorable Frank J. Magill was an active judge at the time this case was

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 United

States

v. * District Court for the

* District of South Dakota.

Donald Twiss, *

*

Appellant. *

___________

Submitted: March 11, 1997

 Filed: October

20, 1997

___________

Before MAGILL, JOHN R. GIBSON, and MURPHY, Circuit

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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 erred by not 2
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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
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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.
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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
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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
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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
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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. 
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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 urinanalysis. 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 (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, 116 S. Ct. 1657,

1659 (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
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the belief that contraband or evidence of a crime will be

found." Id. 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.
Contrary 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

at the 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 he

could have cranked it [the steering wheel during the roll over] hard to the left with one

hand, but it certainly had me wondering if he was the driver when he was holding a

bottle of beer in one hand.” (testimony of agent Grell)); Trial Tr. 57:21-23 (“It was

unusual for an individual to drive a vehicle and to hold or clutch a beer bottle in his

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 the

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)).

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Twiss was one of three survivors involved in a singlevehicle 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, which suggested that Twiss could

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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
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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. 
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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 relevant to

the probable cause inquiry. 

We have held that “probable cause [to support a

warrantless search] may be based on the collective

knowledge of all law enforcement officers involved in an

investigation and need not be based solely upon the

information within the knowledge of the officer on the

scene if there is some degree of communication . . . .”

United States v. Horne, 4 F.3d 579, 585 (8th Cir. 1993)

(emphasis added), cert. denied, 510 U.S. 1138 (1994); cf.

United States v. Rich, 795 F.2d 680, 682 (8th Cir. 1986)

(“[T]he [C]ourt does not merely look to the actual

knowledge of the arresting officer, but to the combined

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 arrest

without a warrant it is not necessary that he have

personal knowledge of all items of information which

taken together constitute probable cause. The court

looks to the collective knowledge and information of all

the officers involved.”).

In Twiss’s case, whether agent Grell knew the results

of Star Comes Out’s interviews with Twiss and Ross before

agent Grell ordered the urinalysis was a point of

dispute. However, no one disputes that Star Comes Out

had described the accident scene to agent Grell before

agent Grell ordered the urinalysis. Thus, looking to the
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collective knowledge of all the officers, probable cause

existed to support the warrantless urinalysis.

III.

Twiss argues that the district court erred by failing

to suppress Twiss's confession. We disagree.
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Twiss’s argument is entirely premised on the

impropriety of the urinalysis. Because the urinalysis

was not improper, the district court did not err in

refusing to suppress the confession Twiss made when he

was confronted with the results of the urinalysis.

IV.

For the foregoing reasons, we affirm the decision of

the district court.

JOHN R. GIBSON, Circuit Judge, dissenting.

I respectfully dissent.

There was no probable cause to justify this search.

The court's finding of probable cause rests solely on

speculation, rather than on the collective knowledge of

law enforcement officials. We make an independent de

novo review of the ultimate question of probable cause to

make a warrantless search. See Ornelas v. United 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 law

enforcement officers. See id. As we deal with a

warrantless search, the burden of proof is on the

government. See Turk v. United States, 429 F.2d 1327

(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 sample

should be obtained from Twiss.
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The court supports its finding of probable cause on

evidence of alcohol and marijuana which authorities found

at the accident scene. Star Comes Out, who was the only

testifying witness who had investigated the scene of the

accident, however, testified that there was no physical

evidence linking the drugs to Twiss. The court also
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supports its finding of probable cause on the suspicion

that Red Star had not been driving. Star Comes Out,

however, stated that there was no physical evidence at

the scene that anyone other than Red Star had been

driving the vehicle. The position of Red Star's body

near the driver's seat, combined with the fact that Red

Star had a family relationship with the owner of the

Jeep, made it unlikely that anyone other than Red Star

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 the

disputed testimony concerning the timing of the interview

in relation to the urinalysis. In discussing this

discrepancy the court states that Star Comes Out was

confused as to whether he interviewed Twiss and Ross

before or after the second call to Grell, and that he

testified that he told Grell that both Twiss and Ross

appeared intoxicated during the interview. Although

Grell testified that Star Comes Out told him that Star

Comes Out had interviewed Twiss, who appeared to be

intoxicated during the interview, Star Comes Out's

testimony, which is the most direct and probative

evidence, plainly does not support this. In fact, the

transcript of Star Comes Out's testimony demonstrates

that he made no assertion that he interviewed Twiss

before his second phone call to Grell. Further, the

record shows Star Comes Out did not interview Twiss

before his second call to Grell. 

Star Comes Out testified that he went to the hospital

to interview the survivors, but was not able to talk to
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any of them both because the hospital emergency staff was

assisting them and relatives were coming in. He stated

that he then went back to the jail without discussing the

accident with anybody at the hospital at that time. Star

Comes Out testified that before his second contact with

Grell he was not able to speak with anybody about the

incident with the possible exception of a Harold Brewer,

a person at the emergency room that evening. This

testimony is in stark contradiction to the court's

finding today, and shows that Star Comes Out did not

interview Twiss before his second phone call to Grell. 
Although Twiss's counsel questioned Star Comes Out about this report, the

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written report was not formally introduced into evidence. Twiss, however, discussed

the report in, and appended the report to, his brief on appeal to the district court, as

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 Twiss occurred at 11:20 P.M. We may consider this evidence simply for the

purpose of clarifying 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. 

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Star Comes Out also testified that he only had one

interview with Twiss and that he prepared a written

report following this interview. Star Comes Out

testified that at the time of this interview he "didn't

know . . . if the urine test was taken or not." Twiss's

attorney asked Star Comes Out whether this interview

occurred about 11:20 p.m., and Star Comes Out responded

that he could not remember. Authorities took Twiss's

4

urine sample at 10:00 p.m. Therefore Grell, in making

his decision to order urine samples, could not have

relied upon Star Comes Out's observation that Twiss was

intoxicated during the interview. Accordingly, the

court's reliance on Star Comes Out's interview of Twiss

for its probable cause determination is not supported by

the record.

Further, and most significantly, Grell testified that

he received the first call from Star Comes Out at

approximately 9:45 p.m. and had the second conversation

with Star Comes Out a minimum of an hour later. The

authorization to give the urine test was given by Grell

to Star Comes Out in this second call. The evidence thus
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demonstrates that Grell's authorization was given after

the urinalysis had been taken at 10 p.m. 

Star Comes Out did not smell marijuana when he talked

to Twiss in the hospital, and Officer Lionel Iron

Moccasin gave similar testimony. 
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Grell asked for a urine test rather than a blood

test, although generally blood alcohol tests were ordered

for determining the amount of alcohol in someone's

system. He has never taken blood tests to determine the

presence of marijuana or other drugs, but generally urine

tests are used for this purpose. Grell wanted the urine

sample taken in this case to determine the presence of

marijuana, but also to determine the presence of alcohol.

Grell knew that a blood test would only tell him the

presence of marijuana in the system, but couldn't

quantify it, whereas a urine test would give him this

information. 

Star Comes Out testified that one bag of marijuana

was found in Red Star's pocket, and one bag in a sports

bag which had mail in it addressed to Robert Martin, the

owner of the car. This information was not related to

Grell. As the court recognizes today, however, it is the

collective knowledge of the officers that is material,

and this must apply to exculpatory evidence, and defeats

a conclusion of probable cause.

The court today strives mightily to establish

probable cause, but the word "probable" stands in stark

contradiction to the words found on pages 6 and 7 and

particularly footnote 3 of the court's opinion, such as

"suspected"; which "suggested that Twiss could have been

the driver"; "Twiss was likely intoxicated, which was

consistent with drug and alcohol use"; "I suppose"; "It

was just unusual to me"; and "It's possible that the

passenger can be thrown over the driver's side and the

driver's side can be ejected." (Emphasis added)
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From these statements the court finds it probable

that Twiss could have been using marijuana while a

passenger in the Jeep and police could have believed that

he was the driver while intoxicated, either by alcohol or

marijuana or both, and caused the death of Red Star.

Probable cause is not so elastic or imaginative a

standard or concept, and the burden was on the

government.
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In light of this evidence I conclude the Magistrate

Judge properly ruled that there was no probable cause to

justify this warrantless search and that the results of

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, the

incriminating statements must also be suppressed. See

United States v. Carter, 884 F.2d 368, 374 (8th Cir.

1989).

A true copy.

Attest:

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