Mark Walker, Patrick Anderson, and John Hult

Argus Leader

Police in South Dakota are collecting urine samples from uncooperative suspects through the use of force and catheters, a procedure the state's top prosecutor says is legal but is criticized by others as unnecessarily invasive and a potential constitutional violation.

The practice isn't new, according to attorneys, but it's been brought to light in a recent case in Pierre. An attorney for a man charged with felony drug ingestion is asking a judge to throw out evidence from an involuntary urine sample, saying it violated his client's constitutional rights.

FOLLOW UP:S.D. chief justice says he can't address forced catheterization

Dirk Landon Sparks was arrested March 14 after a report of a domestic disturbance. While in custody, officers with the Pierre Police Department observed Sparks fidgeting and his mood changing rapidly. A judge signed off on a search warrant for police to obtain blood or urine.

Can a warrant be used for a forced urine test?

After Sparks refused to cooperate, police transported him to Avera St. Mary's Hospital in Pierre, where he was strapped to a bed while a catheter was forced into his penis so that officers could obtain a urine sample.

Sparks' urine tested positive for THC and methamphetamine. He was charged with obstruction, two counts of felony drug ingestion, and possession of marijuana and drug paraphernalia.

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Sparks' attorney, Jeremy Lund, declined to comment on the case. In a motion filed May 16 in Hughes County he argued the way in which police obtained the urine sample, through forced catheterization, was never authorized by the judge and violated his client's Fourth Amendment rights against unreasonable searches and seizures.

“Sticking a needle in your arm is very intrusive – I can’t imagine anything more intrusive than this,” said Ryan Kolbeck, a Sioux Falls lawyer and president of the South Dakota Association of Criminal Defense Lawyers.

It's unclear how widespread the practice of forced catheterization is in South Dakota. Attorney General Marty Jackley said in an interview that the practice is permitted with a signed court order under state law, and he cited several cases that supported the legality of the practice.

The attorney general said law enforcement would prefer not to collect urine samples by force, but that ultimately it's up to suspects if they don't want to cooperate.

“I don’t think anyone wants to go through that methodology,” Jackley said.

Police always take the person to a hospital if they are going to take a forced urine sample, said Tim Whalen, a Lake Andes attorney who has represented a couple of clients who have had urine samples taken without permission. Health care workers at the Wagner and Platte hospitals conduct the procedure on a regular basis, he said.

“They don’t anesthetize them,” Whalen said. “There’s a lot of screaming and hollering.”

A spokesman for Avera said its employees do not force care or treatments on patients but they do comply with court orders.

"In certain circumstances others may consent for a patient or a court may order care or treatment," Avera spokesman Jay Gravholt said. "In those instances, care and treatment can be provided consistent with state statutes."

Kolbeck said he doesn’t know what state law would allow authorities to use forced catheterization. It's an extreme measure that shouldn’t be used in routine cases such as drunken driving or drug ingestion, he said. Most disturbing, he said, is the fact that it could be happening to women.

“They want someone’s urine that bad?,” Kolbeck said.

The Pierre Police Department declined to comment and deferred all questions to the Hughes County State’s Attorney office. Hughes County State’s Attorney Wendy Kloeppner declined to comment on the case or the practice of forced catheterization.

Pam Hein, a defense attorney in Lake Andes, said the practice of forcing catheters into suspects' urethras "has been going on for years."

Hein has seen the issue from both perspectives. She’s served as Charles Mix County State’s Attorney and Bennett County State’s Attorney.

Often an officer will have suspicion of drug use, request the warrant for testing and get the test before any reports on a drug violation charge lands on a prosecutor’s desk.

“Do I think that it’s being abused? Yeah, I do,” Hein said.

Usually it doesn't come to force, though, Hein said. The threat alone is enough. Officers can hold defendants in a room, sometimes for hours, she said, and then tell them they can offer the urine test voluntarily or face a warrant that would allow the officer to take it by force.

“Most of the time, when they threaten them with catheterization, they said, ‘That’s OK, you can have it,’” Hein said.

Hein says she’s argued to suppress results based on coercion but hasn’t had a lot of success.

Courtney Bowie, legal director for ACLU South Dakota, said the practice raises serious legal concerns.

“It would be completely improper for people to place a catheter on an individual of the opposite gender,” Bowie said. “That would border on an unlawful assault, battery or rape.”

The use of forced catheterization has been challenged in other parts of the country.

An Indiana man lost a 2011 case against police in Lawrenceburg, Ind., after they handcuffed him to a hospital bed and grabbed his ankles as nurses applied a catheter against his will, according to court records. Jamie Lockhard sued the city, the hospital and others after the experience. The judge ruled against him because the urine sample was court-ordered.

A Utah man filed an $11 million lawsuit against two police officers, against a local sheriff’s deputy and a hospital. Stephan Cook claimed officers and health care workers used “forced catherization” to draw a urine sample after he refused to be tested for marijuana. A federal judge later dismissed Cook’s case.

In 2014, another Indiana man filed a lawsuit against two police officers and a hospital after he was pulled over for drunken driving. Police “undertook an effort to forcibly obtain” a urine sample, according to the complaint filed by William B. Clark in federal court. An officer held Clark to the bed as nurses inserted a catheter into Clark’s penis, according to court records.

Clark asked for roughly $11 million in 2014 and the case is still pending.

Argus Leader Media reporters Dana Ferguson and Megan Raposa contributed to this report.

Read the motion to suppress evidence from involuntary urine sample: