It’s not really news to anyone these days that the government has unprecedented access to the outsides and innards of our bodies. Mandated trans-vaginal ultrasounds preceding abortions, strip searches in the airport, the needless groping of passengers, cavity searches by police—all prying into our most private areas, more often than not without our consent and for the edification of police officers, politicians or even a corporation. And while the THC breathalyzer race continues, police have been resorting to traumatic, alternative ways to obtain samples from people suspected of drug or alcohol use.
In Dirk Sparks’ case, four South Dakota police officers held him down, with one more filming, while he was forcibly catheterized to obtain a urine sample. It was a response to Sparks’ behavior during a domestic abuse call in which he was “fidgeting and his mood [was] changing rapidly” (signs of things like mental illness as well as drug use). A warrant had been obtained for a urine test, but not one “through forced catheterization,” explained the Argus Leader.
The practice is surprisingly common in the area with one local attorney, Tim Whalen, having represented multiple “clients who have had urine samples taken without permission.” He described the procedure: “They don’t anesthetize them [during insertion of the catheter into the urethra. …] There’s a lot of screaming and hollering.”
Sparks told USA Today of his post-traumatic stress, explaining that “the pain [he] felt when going to the bathroom lasted for weeks […] and the emotional toll proved even more lasting. He still has nightmares about the incident [and] his fear of the [town] police prompted him to move 50 miles east.”
Forced sample obtainment is hardly a new strategy, and the practice of misinterpreting the extent of searches allowable under warrants has been inflicted for years on even those simply suspected circumstantially to have ingested cannabis.
On January 20, 1999, the South Dakota Supreme Court ruled that one of these non-consensual urine sample had been improperly obtained in a case that did not even involve a catheter. Forty-two-year-old Pamela Hanson had been in the passenger seat of a car that was pulled over for its overly tinted windows when Officer Marotteck “detected a faint odor of burnt marijuana” and found, upon searching the car, “a partially burned marijuana leaf and seed on the rear seat and a pipe with burnt cannabis residue under the rear seat.” Drug dogs were brought in and smelled cannabis on the other two passengers in the car, teenage friends of Hanson’s son, but not on Hanson herself.
In the initial trial it was “found that Hanson’s consent [to a urinalysis] was ‘not requested, nor obtained’” (that, in essence, she wasn’t informed that she had the right to refuse) and that “the officer who obtained the sample testified at [that] trial that he was ‘going to take a urine sample one way or the other.’”
Typically in order to not violate the Fourth Amendment, which prohibits unreasonable searches and seizures, a warrant must be obtained to inspect either a home or a person (including their bodily functions). In this case officers did not bother even trying to obtain a warrant despite, as the court pointed out, that “in this modern age of fax machines and cellular phones it is difficult to believe law enforcement could not obtain a search warrant […] within a few hours.” Instead, officers—using the justification that it would be more intrusive upon a person’s life to be detained briefly while a search warrant was obtained than it would be to subject them to a non-consensual urine test—used every means short of physical force to procure evidence from Hanson on the presumption that it existed.
Officers tried to claim exigent circumstances—that they did not have time to get a warrant because, as in drunk driving cases, evidence of cannabis use would disappear from Hanson’s body before the warrant could be obtained. And this would be true—if the warrant took 80 days to get, because that’s how long it takes for metabolized THC to leave fat tissue (unlike alcohol which leaves the body in the general period of 12 to 24 hours).
That further underscores the underlying ridiculousness of using a urine test to determine recent cannabis use, which is that,not only do some cannabinoids hang around in the body for months after use, but also that current urine tests can’t even detect THC, the psychoactive component of the plant that’s part of what makes people “high.” Instead, they test for THC-COOH, one of THC’s non-psychoactive metabolites (one of the things it’s broken down into after ingestion). This means that, unless a blood test (which can detect THC) is taken within about an hour after use (the period of time in which there is a major THC spike), testers can’t tell if you’d been high that day or if you stopped smoking months ago. Even “one-time” cannabis users (that is, not regular smokers) have elevated levels of THC-COOH for about 150 hours after ingesting (long after the high wears off), and it’s this broad range of inclusion that explains why a NORML-cited Quest Diagnostics report found that 50 percent of all of their drug tests returned positive for cannabis.
In its dissent against the original trial ruling, the court found that such “searches of bodily substances” made following arrests “on the mere chance that desired evidence might be obtained” were in violation of the Constitution, citing a 1966 Supreme Court ruling:
“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions[.] In the absence of a clear indication that in fact such evidence will be found [as in Hanson’s case, since the drug dogs did not indicate her as having substance traces], these fundamental human interests require law officers to suffer the risk that such evidence may disappear. […] ‘Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.’”
Police argued in Hanson’s case that “as a normal body function, urination is less intrusive than removal of blood by a syringe,” not considering that any non-consensual experience is likely to lead to psychological—and physical—trauma. (Warrantless blood draws were only themselves declared unconstitutional in June of 2016 when the Supreme Court ruled against the state in Birchfield v. North Dakota.)
Probable cause meant that the police had the right to search Hanson as long as “the [medical] procedure [used] was reasonable when weighing the accused’s interests in privacy and security against society’s interest in the procedure [being used] in identifying the perpetrator of the crime,” but none of the claims about the “reasonableness” of the procedure itself factors in the lack of consent that was central to obtaining Hanson’s urine and to its eventual dismissal as evidence. And frankly, of course, nothing suggests that such actions are “reasonable [in light of] society’s interest,” as society doesn’t seem to be particularly interested at all in stoned car passengers.
Even though in this case, unlike more recent ones, catheterization did not happen, the officer who obtained the sample said that “had Hanson refused to comply with his order, forced [and warrantless] catheterization would have been used to obtain the urine sample”—something that, as made clear by Dirk Sparks’ description of his experiences following forced catheterization, is arguably just as (if not more) traumatic than now-unconstitutional forced blood tests.
The SD Supreme Court ordered a retrial of Hanson, stating that the urine test was inadmissible as its obtainment violated the Fourth Amendment and that without it “there was insufficient evidence to support [her] conviction.” The ruling wraps up with dark foreshadowing:
“The police only had probable cause to support an arrest for possession of the marijuana and paraphernalia found in the back seat of the vehicle. The police did not have probable cause to support an arrest for ingesting and, therefore, had no right to coerce Mrs. Hanson into providing a urine sample. Apparently, Hanson's counsel claims the floodgates have already been opened for police to illegally coerce urine samples in improper cases. We must try to close those floodgates before it is too late.”
South Dakota defense attorney Pam Hein said of the practice in 2016 that it “has been going on for years.” She gave her own opinion on the matter, formed after years of having had also been a state’s attorney: “Do I think that it’s being abused? Yeah, I do.”
The practice has come up multiple times in Indiana (in at least one case, William B. Clark’s, catheterization followed his giving a voluntary blood sample that came back under the legal blood-alcohol limit for driving), in Utah and elsewhere. A particularly egregious case took place in South Dakota in February of 2016 when a three-year-old was catheterized for a urine sample because his mother’s boyfriend had failed a drug test. The procedure gave the child a staph infection that had to be treated with medication for more than two months.
It’s unknown exactly how common the practice is, but it’s clear from the sheer number of cases that catheterizations, along with non-invasive tests like Hanson’s where informed consent was not obtained, are widespread across different departments in different states and that various state rulings on the actions of the police have not resulted in any barring of the practice in a meaningful way.
Despite the Constitution, permissions for police searches are exceptionally wide with forced cavity searches legally performable on someone simply pulled over for a traffic stop as long as a warrant is obtained. As is clear from Dirk Sparks’ ordeal, in which officers believed incorrectly that they were allowed by a warrant to catheterize, the scope for searches allowed by warrants is simply too great and easily misinterpreted—unintentionally or otherwise—by those looking to obtain samples “one way or the other.” The most relatively simple recourse for such unconstitutional seizures is fighting that the evidence be excluded from trial under the Fourth Amendment, but South Dakota attorney Pam Hein makes clear that though “she’s argued to suppress results based on coercion, [she] hasn’t had a lot of success.”
Some people, including 22-year-old college student Stephan Cook (who was catheterized for cannabis) and Indiana’s William B. Clark, are seeking punitive damages for unreasonable force.
Clark sued a number of parties, including the company doing business as the catheterizing hospital, for assault, battery and failure to properly train its employees. The lawsuit bounced around the courts for years and is still in limbo, with a stalling countersuit against Clark by the hospital (for “frivolous litigation” and “abuse of process”) being dismissed as “meritless” in March 2017. Clearly even those who can afford to take the measures to get some sort of justice are put through a years-long runaround while others continue to fall victim to a system committing unthinkable physical violations for evidence that has serious precedent of being stricken down in criminal court.
Without an outright ruling of the practice as unconstitutional—and perhaps even with such a measure—it’s not likely that it will stop. But as the judge in Hanson’s case and history both have made clear, if something is not done to end non-consensual sample obtainment, it may soon be “too late” to turn back the tide—if that point has not already been passed.