South Dakota "Internal Possession" Drug Law Upheld

2/27/04

Dave Johnson was sitting in his Huron, SD, home minding his own business last year when local police showed up at his door with a search warrant alleging he was a marijuana trafficker. They didn't find any evidence of drug dealing or even any pot on the 50-year-old disabled former meat-cutter living on Social Security payments, but they did manage to come up with a used pipe. They arrested Johnson on paraphernalia charges, and in most states that would have been the end of it. But not in South Dakota. Dave Johnson's ordeal was just beginning.

"The cops took me downtown and said if I didn't piss for them, they'd stick something in my dick and take it by force," Johnson told DRCNet. "They were going to take it forcefully -- that's what they told me. So I said okay."

The Huron police weren't lying. Under state law, they could, with probable cause, seek a warrant from a judge ordering an individual to provide a urine sample, and if he refuses, forcibly extract one from him. And under state medical ethics rules, medical personnel are required to comply with state law.

But when Johnson's urine sample came back with traces of cocaine, local prosecutors charged him with felony drug possession under a state law that as far as DRCNet can determine is unique in the United States. Johnson eventually pled guilty to the charge and was sentenced to probation, but ended up serving 5 ½ months in state prison after being caught in possession of about $10 worth or marijuana. He is currently on parole.

Last week, the South Dakota Supreme Court upheld the state's internal possession law. In a February 18 ruling, the court gave a constitutional thumbs-up to the conviction of Joshua Schneider, who was detained in a traffic stop after the arresting officer found a scale in his car. Schneider was found guilty of drug possession after consenting to provide a urine sample that came back positive for methamphetamines. No other drug evidence that could be used against him was found.

In appealing his case, Schroeder and his attorney, Don Covey of Winner, argued that absent any other physical evidence, a positive drug test was insufficient to obtain a possession conviction. But in a unanimous ruling, the court held that a 2001 amendment to the state's drug laws erased the dichotomy between laws that make it a crime to ingest a drug and laws that make drug possession a crime. "Possession may now occur if a person knowingly possesses an altered state of a drug or substance absorbed into the human body," wrote Justice Steven L. Zinter.

"What the state Supreme Court has done is to uphold the 2001 law that defines possession as including ingestion," said University of South Dakota law professor Chris Hutton. "It isn't like that in other states," she told DRCNet. "In other states where prosecutors have charged people with possession just for having something in their urine sample, the courts have said no. Not here."

In fact, the South Dakota Supreme Court cited one such ruling, a 1998 Wisconsin Supreme Court case that found that a urinalysis result alone is not sufficient to sustain a conviction for drug possession. But because the South Dakota legislature explicitly amended the law to define a controlled substance so that "[t]he term includes an altered state of a drug or substance listed in Schedules I through IV absorbed into the human body," the South Dakota court found the Wisconsin precedent and Schroeder's appeal unpersuasive.

"The court has traditionally held that once a substance is in your body you can no longer exercise dominion and control, which are key elements of defining possession," said Covey, who argued the case at trail and before the Supreme Court. "This decision obliterates those precedents," he told DRCNet. "This is the result of an intellectually dishonest backdoor effort by the legislature. They could have tried to make drug ingestion a felony, but instead they just redefined what a controlled substance is so they could get away with this sort of thing."

Defense attorneys and civil libertarians told DRCNet that the correct thing to do is to refuse to consent to provide a urine sample, but that few people exercise their rights. "I defend a lot of drug cases," said Huron attorney Ron Volesky, "and I've defended several of these urine sample cases, but I haven't yet seen an instance where we could challenge a court order because everyone has voluntarily consented," he told DRCNet. "As a practical matter, when the police pick someone up they say, 'Look, we can do it the hard way or the easy way; you can voluntarily consent because we have probable cause, or we can wake up the judge, have him sign an order, and take you down and have you catheterized.' They basically threaten you," said Volesky.

"Don't consent. You just don't do it," said Covey. "You make them get their warrant. Maybe they won't get it, or maybe by the time they do get it the substance is metabolized," he said. But his clients don't exercise their rights, he moaned. "They can't wait to spill their guts."

"People should just say no to pissing in a cup at a policeman's request," said Steve Silverman of the Washington, DC-based civil liberties group Flex Your Rights (http://www.flexyourrights.org), which recently released a video narrated by former ACLU head Ira Glasser, "BUSTED: A Citizen's Guide to Surviving Police Encounters," designed to educate Americans about exercising their rights when confronting the cops. "BUSTED doesn't cover this particular example -- because we've never heard of such a thing before -- but the same message applies whether you're in your car, your home, on the street, or even asked to pee in a cup: Do not consent to a search, or in this case to giving a urine sample. Never consent to police searches. You gain nothing. If you consent, you have waived your rights. If they think they have probable cause to get an order, make them get it," he told DRCNet.

"If you refuse to consent and they get a court order and take a sample against your will, you can challenge it. You can file a motion to suppress the evidence for lack of probable cause," said Volesky. "Any good lawyer will try to suppress the evidence, but you can't do that if your client voluntarily hands it over."

And don't count on medical professionals to let ethical qualms about forcing unwanted medical procedures on unconsenting individuals stop them from assisting the police. Under state law, they have to, said South Dakota State University School of Nursing Professor Lori Hendricks. "There are many things nurses may not agree with, but we are bound by state law. If the law says the state can order someone's urine sample against their will, we are bound to follow the law."

Read the opinion in South Dakota v. Schroeder online at:

http://www.sdjudicial.com/index.asp?category=opinions&nav=53&year=2004&month=2&record=1247