(dissenting).
[¶ 47.] THE SEIZURE OF HANSON’S URINE VIOLATED HER CONSTITUTIONAL RIGHTS.
[¶48.] Law enforcement lacked probable cause for the search of Hanson’s urine. The trial court should have suppressed the evidence because the seizure of her urine without her consent and without a warrant violat*895ed her state and federal constitutional rights. Therefore, I dissent.
[¶ 49.] Although Officer Marotteek detected an odor of burnt marijuana within the car, there was no odor of marijuana about Hanson’s person. The drug dog “hit” on the car, not on Hanson. The police observed nothing about her appearance which suggested she was under the influence of any drug. After considering the entire record and the lack of substantial evidence, the trial court was clearly erroneous in finding probable cause for forcing Hanson’s urinalysis.
[¶50.] In addition, exigent circumstances which may eliminate the need of obtaining a warrant before taking the urine sample did not exist. Schmerber v. California specifically found exigent circumstances because of the speed at which alcohol dissipates from the body. 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). We have also recognized these exigent circumstances and have upheld warrantless taking of blood samples for detection of alcohol because of the speed at which alcohol dissipates from the body. See State v. Tucker, 533 N.W.2d 152, 154 (S.D.1995); State v. Hartman, 256 N.W.2d 131, 134 (S.D.1977).
[¶ 51.] Unlike alcohol, marijuana is not quickly dissipated by the body, thereby destroying possible evidence of a crime. According to the State’s chemist, marijuana can be stored in an individual’s fat tissue and detected as long as 32 days after ingestion. Literature suggests it may be detected up to as long as 77 days. The speed at which the body eliminates the presence of marijuana does not create exigent circumstances justifying warrantless urinalysis. The police had ample time to present information to a magistrate for a probable cause determination to attempt to obtain a warrant authorizing the taking of Hanson’s urine sample.
[¶ 52.] The majority cites to United States v. Twiss, 127 F.3d 771 (8thCir.1997), reh’g & suggestion for reh’g en banc denied (1997) and United States v. Edmo, 140 F.3d 1289 (9thCir.1998) as support for the finding of exigent circumstances. However, reliance on those cases is misplaced.
[¶ 53.] Twiss is not controlling and can be distinguished from the facts of this case. Twiss was involved in a fatal one-car accident. Twiss and two other passengers left the scene of the accident and eventually went to the hospital where the police made contact. The fourth passenger’s body was found pinned underneath the car with a beer still clutched in his hand. Marijuana was found at the scene of the accident. Police detected an odor of alcohol about Twiss’ person and he appeared to be intoxicated. Police suspected the deceased occupant was not the driver and that Twiss might have been the one driving at the time of the accident. Based on all that information, the Eighth Circuit Court of Appeals found probable cause for the urinalysis. Therefore, the factual situation in Tunss is significantly different than this case and serves to emphasize the lack of probable cause here.
[¶ 54.] Edmo is also factually distinguishable and is not controlling. Edmo was observed driving erratically. The police found a marijuana pipe and .22 semi-automatic pistol in his car. Edmo consented to the urine sample, unlike Hanson. The Ninth Circuit Court of Appeals found that the police had probable cause to believe Edmo had consumed a controlled substance. However, I do not agree with the Ninth Circuit that obtaining a urine sample without a warrant is justified because of exigent circumstances.
[¶ 55.] Both Edmo and the majority minimize the degree of intrusion involved in obtaining a urine sample. The majority glosses over the intrusion by stating that “[t]he type of testing used in this case would seem to be more reasonable and less intrusive on a person’s life than the alternative of attempting to secure a warrant.” The majority ignores the logical extension of its reasoning. Although the police did not use physical force to obtain the sample of Hanson’s urine, the officer who obtained the sample testified that he was “going to take a urine sample one way or the other.” Had Hanson refused to comply with his order, forced catheterization would have been used to obtain the urine sample. The majority cannot argue that that *896procedure would be “more reasonable and less intrusive ... than ... attempting to secure a warrant.” Forced catheterization would be a substantial intrusion of the integrity of an individual’s body. It goes well beyond the intrusion involved in obtaining a blood, sample from a person suspected of driving under the influence of alcohol.
[¶ 56.] Under the position of the majority, a person in Hanson’s situation would have no ability to refuse to provide a urine sample. At least an individual suspected of driving while under the influence of drugs or alcohol receives some protection from the implied consent laws. An individual can refuse to submit to a withdrawal and face the revocation of his or her driving privileges. Only under limited circumstances can the individual be forced to submit. However, because Hanson was not the driver of the vehicle, she does not receive the protection of the implied consent laws and, under the position of the majority, could not refuse to submit to the taking of her urine.
[¶ 57.] Obtaining a sample of urine from an individual without a warrant using force, if necessary, goes beyond the scope of a search incident to a lawful arrest. Law enforcement may obtain a sample of a bodily substance from an individual, such as a semen sample in a rape case, but such a substantial intrusion requires a warrant prior to the seizure. In this modern age of fax machines and cellular phones, it is difficult to believe law enforcement could not obtain a search warrant from a magistrate or circuit court judge within a few hours. The individual sought to be searched could be detained during that time.
[¶ 58.] At a minimum, the Fourth Amendment to the United States Constitution requires the existence of probable cause before law enforcement may require an individual to submit to an intrusion of his or her body. The United States Supreme Court in Schmerber rejected searches incident to arrest as justification for searches of bodily substances:
Whatever the validity of these considerations in general, they have little application with respect to searches involving intrusions beyond the body’s surface. The interests in human dignity and 'privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that süeh evidence may disappear unless there is an immediate search.
384 U.S. at 769-70, 86 S.Ct. at 1835 (emphasis added).
[¶ 59.] The United States Supreme Court goes on to discuss the importance of a warrant, stating: “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.... The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Id. at 770, 86 S.Ct. at 1835. Although the Schmerber court found exigent circumstances based on the speed at which alcohol is eliminated from the body precluded the need for a warrant, it carefully limited its holding. It stated: “That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions”. Id. at 772, 86 S.Ct. at 1836 (emphasis added). We must heed that caution.
[¶ 60.] Evidence illegally obtained must be suppressed under the exclusionary rule. State v. Shearer, 1996 SD 52, ¶21, 548 N.W.2d 792, 796 (citing State v. McCreary, 82 S.D. 111, 125, 142 N.W.2d 240, 247 (1966) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961))). “The rationale for this rule is to deter police from violating constitutional protections.” Shearer, 1996 SD 52 at ¶ 21, 548 N.W.2d at 796 (citing State v. Saiz, 427 N.W.2d 825, 826 (S.D.1988)).
*897[¶ 61.] Here, 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.
[¶ 62.] The trial court was clearly erroneous in denying Hanson’s motion to suppress the urinalysis results.
[¶ 63.] THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT HANSON’S CONVICTION WHEN THE IMPROPERLY ADMITTED URINE TEST RESULT IS DISREGARDED.
[¶ 64.] “When an action is tried to the court, the presumption is that improperly admitted testimony is disregarded.” Matter of R.S.S., 474 N.W.2d 743, 750 (S.D.1991) (citations omitted). However, that presumption is not valid here. Hanson’s conviction was based on circumstantial evidence, with a great deal of reliance placed on the results of her urine sample. The trial court refused to suppress the results of the urine sample and, therefore, considered it to be admissible evidence when making its verdict. It cannot be presumed that the improperly admitted results were disregarded by the trial court because they clearly were not.
[¶ 65.] We should reverse and remand for retrial.
[¶ 66.] AMUNDSON, Justice, joins this dissent.