RAPID CITY, S.D. — In June 2018, a Rapid City detective made the six-hour drive to Denver in order to collect a sample from a placenta.
Detective Ryan Gebhard received the sample from two Denver police officers, who obtained it from a Denver abortion clinic, according to a brief filed by Lara Roetzel, chief deputy state's attorney for Pennington County.
The clinic had called the Rapid City police the month before to report that a 16-year-old girl from Rapid City who scheduled an abortion mentioned that she was 15 when she became pregnant with her boyfriend Nathan Hankins, a 25-year-old man, the brief says.
The Rapid City police launched an investigation to see if Hankins committed statutory rape (16 is the age of consent in South Dakota) and Gebhard wanted to test the placenta to see if it could confirm Hankins as the father, according to the brief. A clinic worker told Gebhard that he didn't need a warrant to collect the sample since it was considered medical waste and being used in a criminal investigation.
DNA testing showed that Hankins could not be excluded as the father and he was indicted in September 2018 on a charge of fourth-degree rape, the brief says.
Now, the South Dakota Supreme Court will be asked to take up a question that lawyers on both sides of the case say has never been addressed in South Dakota courts: whether law enforcement needs a warrant to seize a placenta or other materials that result from an abortion.
And in a state where many politicians view fetuses as equal to fully-formed humans, and attorneys general have defended strict abortion laws, the case ironically has South Dakota — through a deputy state's attorney — arguing that the placenta is medical waste that's legally similar to garbage discarded in a trash can.
"I have never seen anything like this," said Martha Rossiter, who represents Hankins along with Paul Pietz. "It really should shock people" that police officers can take "body parts" without a warrant like they can take evidence from a trash can on a public sidewalk, she said.
While Roetzel believes the evidence was legally obtained, she agreed with Rossiter that she's not aware of any other South Dakota case that's used a placenta as evidence.
Last week, Jeff Davis, a retired judge who occasionally oversees cases in Pennington County, rejected Rossiter and Pietz's motion to throw out the evidence taken from the placenta. The evidence was obtained in a way that followed Colorado laws and medical practices, Davis said.
Rossiter said she and Pietz will file an appeal of Davis' finding with the South Dakota Supreme Court. If the justices decline to hear the appeal, Rossiter said, she can file an appeal after trial, which the court must consider. The opportunity to appeal the matter would be lost if Hankins takes a plea deal.
Hankins was previously convicted of fourth-degree rape in 2014 but all details of the incident are sealed, court records show.
Rossiter and Pietz argue in court documents that taking the placenta without a warrant violates Hankin's 4th Amendment rights against unreasonable searches and seizures.
While Hankins approved of the abortion and knew the clinic would obtain and dispose of the remains, Rossiter said that doesn't mean that he expected or consented for the material to be handed over to the police.
"To believe that society does not appreciate some expectation of privacy in medical remains would be shocking ... this is not analogous to leaving a cup in the trash on the side of the road," the defense lawyers wrote in a brief. "There is an expectation that the material will be disposed of properly and not available to the public or police upon simple request," they wrote in another document.
Rossiter and Pietz also argued that according to Colorado law, the clinic staffer was wrong when she said the placenta is medical waste. They also said there's no reason why Gebhard couldn't have asked for a search warrant between the beginning of his investigation and the abortion, which occurred more than two weeks later.
Roetzel wrote that Colorado law and U.S. Supreme Court rulings make it clear that fathers have no right to prevent or be notified of an abortion. Therefore, she wrote, fathers have no control over or privacy interest in the results of an abortion.
"This is not an instance where the placenta was removed from his body, no matter how Mr. Hankins attempts to characterize it," Roetzel wrote in response to the defense lawyers describing the placenta as a "surgically removed body part that was Mr. Hankin's biological makeup."
Plus, Roetzel argued, Hankins never presented himself as having a relationship to the placenta since he told clinic staff he was a friend, not the girl's boyfriend, and told police he wasn't the father. He also consented to the abortion and release of the placenta by driving the girl to Denver and paying for the procedure.
Because the placenta is medical waste, Roetzel wrote, "Hankins relinquished the placenta to a third party, similar to someone relinquishing their garbage to a trash collector or an individual fleeing their vehicle at the scene of an accident."
Roetzel also noted that one of the Colorado officers testified that he's taken placenta samples about 12 times without a warrant and the seizures have never been challenged in court.