¶ 64. {dissenting) . I agree with the court of appeals that the evidence obtained as a result of administering the laxative to the defendant, Tomas Payano-Roman, should have been suppressed. Six hours elapsed between the arrest and the administration of the laxative — more than enough time for the officers to get a search warrant. The officers did not try to get a search warrant. The evidence must be suppressed.
¶ 65. I agree with the majority opinion that the administration of the laxative was state action for the purposes of Fourth Amendment search and seizure analysis. I disagree, however, that the administration of laxatives constituted a reasonable search.
¶ 66. The purpose of a warrant is to allow a neutral decision-maker to make an informed, deliberative decision about whether the search is reasonable under the circumstances.1 A warrantless search is per se unreasonable under the Fourth Amendment unless it *408falls within an exception to the warrant requirement.2 The State has the burden of proof that an exception to the warrant requirement exists.3
¶ 67. The State argues that the exigent circumstances exception applies. The majority opinion does not address this exception; it concludes that the administration of the laxative to the defendant was reasonable because the circumstances meet the search incident to arrest exception to the warrant requirement.
¶ 68. To prove exigent circumstances, the State must show that the delay in obtaining a warrant would jeopardize seizure of the evidence sought. This exception applies if reasonable officers would have believed that they were confronted with an emergency that threatened to destroy the evidence.4
¶ 69. The second exception to the warrant requirement, upon which the majority relies, is that police may conduct a search incident to arrest without a warrant so long as that search is reasonable considering all the attending circumstances.5
¶ 70. I conclude neither exception to the warrant requirement applies in the present case. I address each of these exceptions in turn.
¶ 71. Finally, I discuss the Winston and Schmer-ber cases upon which the majority opinion relies. Those cases do not support the majority's conclusion.
*409H—
¶ 72. The State proffers two exigent circumstances to justify the warrantless administration of the laxative: (1) to recover the heroin in the plastic bag for use as evidence; and (2) to provide medical care to the defendant, in the belief that his health was in danger if the plastic bag ruptured inside his body.6 Though either of these situations may produce exigent circumstances in the proper case, the State has not proven either exigency in the instant case. Although the majority opinion does not address exigent circumstances, I do because the existence of exigent circumstances (or lack thereof) is important to evaluate the reasonableness of the search incident to arrest.
¶ 73. The argument that the evidence might be lost unless an expedited search occurred does not constitute exigent circumstances under the facts of the instant case. Approximately six hours passed between the time of the arrest and the time the laxative was administered. If the officers were concerned about the defendant's health why did it take them so long to act? Furthermore, six hours was more than enough time to get a warrant.7 Yet the officers failed to secure a warrant during this six-hour period.
¶ 74. The second putative justification for applying the exigent circumstances exception is medical necessity. The argument is made that the plastic bag might have ruptured, endangering the defendant's life. This putative necessity is not applicable in the instant case. The record indicates that it took between 45 *410minutes and two hours to transfer the defendant to the hospital after he was arrested. A total of six hours passed before the laxative was administered. If the defendant was at such great risk, why did it take six hours to administer the laxative? As I explain fully later, the State did not prove that the administration of the laxative was necessary to protect the defendant's health.8 No exigent circumstances exist here excusing the need for a search warrant.
¶ 75. Furthermore, an individual may choose not to accept medical treatment. Individuals have a constitutional right to refuse medical treatment. This right is often analyzed under general privacy principles, but more properly is analyzed under the Fourteenth Amendment liberty guarantee.9 Had the defendant not been under arrest, he surely would have been permitted *411to refuse a laxative if he had ingested a dangerous material. No authority is cited for the proposition that an arrest negates the need for a person's consent for medical treatment or for a showing of medical necessity.
¶ 76. In the instant case, the medical excuse for the search fails to establish the reasonableness of the search. The State has failed to meet its burden of proof on this exception to the warrant requirement.
¶ 77. In sum, the record is such that the State failed to meet its burden that the search was reasonable.
II
¶ 78. I also conclude that the search incident to arrest exception to the warrant requirement was not met in the instant case. A search incident to arrest is excepted from the warrant requirement if the search was reasonable under the circumstances.10 The war-rantless search was not reasonable under the circumstances of the present case.
¶ 79. A search incident to arrest is reasonable under the circumstances if the search is necessary either to seize evidence or prevent dangerous materials from circulating in a secure environment such as a jail.11 An essential element of this determination is whether the officers had sufficient time to obtain a *412search warrant.12 Here the search (the administration of the laxative) was not necessary; the natural course of human events would have delivered the plastic bag and its contents to the police. In the instant case, the search was not needed to prevent the drugs from circulating to others. The evidentiary and security purposes of the search incident to arrest exception did not require the administration of the laxative without a search warrant. The State has failed to meet its burden of proof on this exception to the warrant requirement.
¶ 80. In sum, the record is such that the State failed to meet its burden that the search was reasonable.
*413HH I — I I — I
¶ 81. The two United States Supreme Court cases upon which the majority opinion relies do not support the majority's conclusion in the present case.
¶ 82. In Winston v. Lee, 470 U.S. 753 (1985), the United States Supreme Court addressed a fact pattern similar to that of the instant case. In Winston, the perpetrator of an armed robbery was shot by the victim in self-defense. Approximately 20 minutes after the incident, the defendant was arrested with a bullet wound. Although there was no medical reason to remove the bullet, the State petitioned the state courts to order the bullet removed so that it might be used as evidence against the defendant. The Virginia courts granted the petition. Upon petition for habeas corpus, the federal district court and the federal Fourth Circuit Court of Appeals enjoined the surgery.
¶ 83. On certiorari, the United States Supreme Court affirmed the denial of the State's request for surgery.13 In reaching this conclusion, the Supreme Court stated a three-part balancing test for evaluating whether exigent circumstances justify a search involving bodily invasion. The Supreme Court balanced (1) the extent to which the procedure may threaten the health and safety of the defendant; (2) the extent of the intrusion upon the defendant's dignitary interests in personal privacy and bodily integrity; and (3) the community's interest in fairly and accurately determining guilt or innocence.14
¶ 84. In Winston, removal of the bullet was not medically necessary and the evidence was not critical *414for a conviction.15 The Winston Court placed great emphasis on the bodily integrity of the individual in reaching its decision.16
¶ 85. As to the first Winston factor, the record in the instant case fails to establish whether the procedure would endanger the defendant's health. In the present case, an analogous consideration is whether the procedure was necessary to protect his health. The burden is on the State to justify a warrantless intrusion on the basis of the defendant's health. In the absence of evidence on the record, this first element under Winston weighs against the State.
¶ 86. The only evidence in the record demonstrating that the laxative was medically indicated is the hearsay testimony of the officers that a nurse said that the typical procedure in the hospital for such cases was to administer a laxative. Even if this hearsay testimony is accurate and reliable, it does nothing to establish that the laxative was medically indicated for this defendant.
¶ 87. Medical treatment requires an individual approach. Nothing on the record indicates that the defendant was asked about any medical condition he might have that might be affected by a laxative, about any allergy to laxatives, about the nature of the plastic bag, or about its contents. In sum, the record is silent about whether the laxative administered was medically indicated or was medically appropriate for the defendant.
¶ 88. Furthermore, the record does not demonstrate that the laxative was administered under the supervision of qualified medical personnel. The record is extremely limited regarding the involvement of a *415doctor in the decision-making regarding the defendant's care.17 The only clear testimony is that a doctor was present during the initial consultation with the police officers in the emergency room. The record is unclear whether a doctor ever met with or examined the defendant. No doctor is named. Moreover, no testimony exists that the administration of the laxative was at a doctor's behest. The closest the record comes to establishing a doctor's involvement is the following statement by Special Agent Parker at the suppression hearing:
I don't recall if — if he [the doctor] — I believe he also had told — said the same thing, but it was consistent, if both said something to that effect to me, it was definitely consistent, that the fluids that Mr. Payano would drink would allow for things to pass through him much more rapidly than otherwise.
¶ 89. As is clear, Special Agent Parker never testified that the doctor recommended the laxative. Rather, he testified only that, if the doctor said anything to him about that subject, it was not inconsistent with what a nurse told him.
¶ 90. The record is thus weak in demonstrating that the laxative did not threaten the health and safety of the defendant or that the procedure was needed to protect his health.
¶ 91. As to Winston's second factor: The administration of a laxative was far less intrusive upon the defendant's dignitary interests in personal privacy and bodily integrity than the medical procedure contemplated in Winston. Nevertheless, the defendant's bodily integrity in the present case is entitled to great weight, *416as the majority opinion properly explains. The defendant has a substantial interest in determining his own medical care and determining the medical procedures to be performed.
¶ 92. In sum, the record shows that the defendant's dignitary and privacy interests are substantial in the present case.
¶ 93. As to Winston's third factor, a defendant's bodily integrity should not be breached absent a showing by the State of a compelling need for the evidence sought.18 The State's interest in recovering the drugs is not very strong in the present case. Although in the instant case the criminal case may be weaker without the recovered heroin, the State nonetheless could have charged and prosecuted the defendant based on testimony of the police officers and other witnesses regarding the defendant's conduct.
¶ 94. Furthermore, absent any evidence on the record to the contrary, there is no reason to think that the defendant would not have eventually passed the plastic bags, at which point the police officers present would have been able to recover the heroin for use against the defendant at a trial. Because the record fails to establish that no less intrusive means of recovering the evidence was available, administration of the laxative was unreasonable.19
*417¶ 95. I therefore conclude that the defendant's health and dignitary interests were significant and the State's interests in protecting the defendant's health and welfare and securing the evidence through this means were not strong.
¶ 96. The instant case does not meet Winston's stringent standards for invasion of the body. If the Supreme Court refused to authorize an invasion of the body in Winston, clearly law enforcement officers cannot, without a warrant, authorize the administration of laxatives in the present case.
¶ 97. In Schmerber v. California, 384 U.S. 757 (1966), the U.S. Supreme Court addressed the admissibility of blood withdrawn from an individual suspected of driving while intoxicated. The blood was withdrawn in a hospital by a physician while the suspect was unconscious.20
¶ 98. Applying the same balancing test that was later applied in Winston, the United States Supreme Court affirmed the admissibility of the blood.21 The Court concluded that it would have taken too long to obtain a warrant and evidence of blood alcohol content, an essential aspect of the State's case against the defendant, would have dissipated in the interim.22
¶ 99. The facts of Schmerber are distinguishable from the facts of the instant case. The blood test was *418the only certain way to establish that the defendant was under the influence of alcohol. In Schmerber, the drawing of blood was a minor invasion of the body. The bodily invasion was undertaken at a hospital under a doctor's direct supervision. There was no time to get a warrant because the evidence of alcohol would have dissipated by the time a warrant would have issued. The suspect's interest in bodily integrity was high but the invasion was limited. The State's interest in obtaining the evidence in Schmerber was very high.
¶ 100. Even in these circumstances, the United States Supreme Court was very hesitant in admitting the blood evidence and carefully limited the application of Schmerber, stating:
[W]e reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. 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.23
¶ 101. And, indeed, a number of courts have found bodily intrusions similar to the intrusion in the instant case to be unreasonable.24
*419¶ 102. For the reasons stated, and on the basis of Winston and Schmerber, I conclude that without a warrant the evidence should have been suppressed.25
¶ 103. The inevitable discovery doctrine does not save the search. The police were not actively pursuing an alternative line of investigation at the time the discovery was made.26
¶ 104. For the reasons stated, I dissent.
*420¶ 105. I am authorized to state that Justice LOUIS B. BUTLER, JR. joins this dissent.
2 Wayne R. LaFave, Search and Seizure § 4.1(a), at 441-42 (4th ed. 2004).
State v. Boggess, 115 Wis. 2d 443, 449, 340 N.W.2d 516 (1983) (citing Cady v. Dombrowski, 413 U.S. 433, 439 (1973)).
State v. Pallone, 2000 WI 77, ¶ 29, 236 Wis. 2d 162, 613 N.W.2d 568 ("The State bears the burden of proving that a warrantless search falls under one of the established exceptions.").
State v. Faust, 2004 WI 99, ¶ 12, 274 Wis. 2d 183, 682 N.W.2d 371; see majority op., ¶ 32.
Ker v. California, 374 U.S. 23, 32-33 (1963).
See majority op., ¶¶ 54-55, 59.
Approximately sixteen hours elapsed between the arrest and the time the defendant defecated the plastic bag containing heroin.
See ¶¶ 85-90, infra.
Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 279 & n.7 (1990) ("Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest."; whether a person's constitutional interests have been violated is determined by balancing the liberty interests against the relevant state interests); Lenz v. L.E. Phillips Career Ctr., 167 Wis. 2d 53, 67, 482 N.W.2d 60 (1992) ("[A]n individual's right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section 1 of the Wisconsin Constitution").
The right to refuse medical treatment also comes from the common law torts of assault and battery. Mills v. Rogers, 457 U.S. 291, 294 n.4 (1982) ("Under the common law of torts, the right to refuse any medical treatment emerged from the doc*411trines of trespass and battery, which were applied to unauthorized touchings by a physician.").
For statutes protecting the rights to medical care of certain patients whose liberty has been restricted, see Wis. Stat. §§ 50.09, 51.61.
Ker v. California, 374 U.S. 23, 32-33 (1963).
Chimel v. California, 395 U.S. 752, 755-63 (1969).
Chimel, 395 U.S. at 755-63.
The Chimel Court observed:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.
Id. at 762-63 (footnote omitted).
Winston v. Lee, 470 U.S. 753, 760-63 (1985).
Winston, 470 U.S. at 764-66; majority op., ¶ 37.
See Winston, 470 U.S. at 765.
See id. at 764-65.
See majority op., ¶ 44 (discussing the record upon which the majority relies).
Winston, 470 U.S. at 766; 2 LaFave, supra note 1, § 3.2(a), at 29-30.
See United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976) ("[L]ess intrusive means of obtaining the evidence may properly have been considered. In time, the contraband in the rectal cavity might have been eliminated naturally."); Colorado v. Thompson, 820 P.2d 1160, 1165 (Colo. Ct. App. 1991) (citing Cameron, 538 F.2d 254) ("[D]efendant was constitutionally *417entitled to a court ruling whether a less intrusive means of securing the evidence was available.").
See United States v. Husband, 226 F.3d 626, 631 (7th Cir. 2000) (record insufficient to determine reasonableness of police's use of general anesthesia to recover evidence in accused's mouth).
Schmerber v. California, 384 U.S. 757, 758-59 (1966).
Schmerber, 384 U.S. at 766-72.
Schmerber, 384 U.S. at 770.
Schmerber, 384 U.S. at 772.
See, e.g., Rochin v. California, 342 U.S. 165, 172-174 (1952)(forcible extraction of contents of accused's stomach violates due process); United States v. Cameron, 538 F.2d 254, 258 (9th Cir. 1976) (administration of laxative unreasonable when record fails to establish that less intrusive means are available); Colorado v. Thompson, 820 P.2d 1160, 1165 (Colo. Ct. App. 1991) (same).
I conclude that a warrant (an ex parte proceeding) was necessary under the facts of the instant case. Some cases and commentators have suggested that under some circumstances an adversarial proceeding, with the opportunity for an accused to present evidence, may be necessary to invade the accused's body.
See, e.g., United States v. Crowder, in which Judge McGowan observed in his concurring opinion:
Had [the Government] declined to invoke the authority of the judiciary in advance, relying instead upon after the fact justifications, we would have been presented with quite a different — and palpably more difficult — case. But because it proceeded as it did, appellant was, prior to the removal of the bullet and at the Government's insistence, afforded an evidentiary hearing before a United States District Judge in which he was represented by counsel, asserted his objections, and had the benefit of cross-examination of the Government's medical witness. Opportunity was further provided appellant, before the operation, to seek appellate scrutiny of the District Court's findings and authorizations.
543 F.2d 312, 318 (D.C. Cir. 1976) (McGowan, J., concurring). See also State v. Overstreet, 551 S.W.2d 621, 627-28 (Mo. 1977) (warrant for removal of bullet not valid when there was no adversarial hearing, no opportunity to cross-examine, no finding by a court of degree of medical intrusion, and no opportunity for pre-surgery appellate review).
For a discussion of cases before and after Winston and Schmerber, see 2 LaFave, supra note 1, § 4.1(e), at 455-71.
I agree with the court of appeals' analysis of inevitable discovery in the instant case. The court of appeals stated:
*420We conclude that inevitable discovery is not applicable here because of the invasion of the body. If we were to rule as the State suggests, there would be no incentive for the police to respect the bodily integrity of persons in custody because they could always argue inevitable discovery.
State v. Payano-Roman, 2005 WI App 118, ¶ 16 n.3, 284 Wis. 2d 350, 701 N.W.2d 72.