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, — U.S. -, -, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (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.
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 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 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.
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.4 Authorities took Twiss’s urine *776sample 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 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.
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)
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.
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).
. Although Twiss’s counsel questioned Star Comes Out about this report, the 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 *776Sportswear, 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.