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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 99-936 |
| [3] | 2001.SCT.0000050 <http://www.versuslaw.com> |
| [4] | March 21, 2001 |
| [5] | CRYSTAL M. FERGUSON, ET AL., PETITIONERS v. CITY OF CHARLESTON ET AL. |
| [6] | SYLLABUS BY THE COURT |
| [7] | OCTOBER TERM, 2000 |
| [8] | FERGUSON v. CHARLESTON |
| [9] | NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. |
| [10] | SUPREME COURT OF THE UNITED STATES |
| [11] | FERGUSON et al. v. CITY OF CHARLESTON et al. |
| [12] | Certiorari To The United States Court Of Appeals For The Fourth Circuit |
| [13] | No. 99-936. |
| [14] | Argued October 4, 2000 |
| [15] | Decided March 21, 2001 |
| [16] | In the fall of 1988, staff members at the Charleston public hospital operated
by the Medical University of South Carolina (MUSC) became concerned about
an apparent increase in the use of cocaine by patients who were receiving
prenatal treatment. When the incidence of cocaine use among maternity patients
remained unchanged despite referrals for counseling and treatment of patients
who tested positive for that drug, MUSC staff offered to cooperate with
the city in prosecuting mothers whose children tested positive for drugs
at birth. Accordingly, a task force made up of MUSC representatives, police,
and local officials developed a policy which set forth procedures for identifying
and testing pregnant patients suspected of drug use; required that a chain
of custody be followed when obtaining and testing patients' urine samples;
provided for education and treatment referral for patients testing positive;
contained police procedures and criteria for arresting patients who tested
positive; and prescribed prosecutions for drug offenses and/or child neglect,
depending on the stage of the defendant's pregnancy. Other than the provisions
describing the substance abuse treatment to be offered women testing positive,
the policy made no mention of any change in the prenatal care of such patients,
nor did it prescribe any special treatment for the newborns. Petitioners,
MUSC obstetrical patients arrested after testing positive for cocaine, filed
this suit challenging the policy's validity on, inter alia, the theory that
warrantless and nonconsensual drug tests conducted for criminal investigatory
purposes were unconstitutional searches. Among its actions, the District
Court instructed the jury to find for petitioners unless they had consented
to such searches. The jury found for respondents, and petitioners appealed,
arguing that the evidence was not sufficient to support the jury's consent
finding. In affirming without reaching the consent question, the Fourth
Circuit held that the searches in question were reasonable as a matter of
law under this Court's cases recognizing that "special needs"
may, in certain exceptional circumstances, justify a search policy designed
to serve non-law&nbhyph;enforcement ends. |
| [17] | Held: A state hospital's performance of a diagnostic test to obtain evidence
of a patient's criminal conduct for law enforcement purposes is an unreasonable
search if the patient has not consented to the procedure. The interest in
using the threat of criminal sanctions to deter pregnant women from using
cocaine cannot justify a departure from the general rule that an official
nonconsensual search is unconstitutional if not authorized by a valid warrant.
Pp. 8-18. |
| [18] | (a) Because MUSC is a state hospital, its staff members are government
actors subject to the Fourth Amendment's strictures. New Jersey v. T. L.
O., 469 U. S. 325, 335-337. Moreover, the urine tests at issue were indisputably
searches within that Amendment's meaning. Skinner v. Railway Labor Executives'
Assn., 489 U. S. 602, 617. Furthermore, both lower courts viewed the case
as one involving MUSC's right to conduct searches without warrants or probable
cause, and this Court must assume for purposes of decision that the tests
were performed without the patients' informed consent. Pp. 8-9. |
| [19] | (b) Because the hospital seeks to justify its authority to conduct drug
tests and to turn the results over to police without the patients' knowledge
or consent, this case differs from the four previous cases in which the
Court considered whether comparable drug tests fit within the closely guarded
category of constitutionally permissible suspicionless searches. See Chandler
v. Miller, 520 U. S. 305, 309; see also Skinner, Von Raab, and Acton. Those
cases employed a balancing test weighing the intrusion on the individual's
privacy interest against the "special needs" that supported the
program. The invasion of privacy here is far more substantial than in those
cases. In previous cases, there was no misunderstanding about the purpose
of the test or the potential use of the test results, and there were protections
against the dissemination of the results to third parties. Moreover, those
cases involved disqualification from eligibility for particular benefits,
not the unauthorized dissemination of test results. The critical difference,
however, lies in the nature of the "special need" asserted. In
each of the prior cases, the "special need" was one divorced from
the State's general law enforcement interest. Here, the policy's central
and indispensable feature from its inception was the use of law enforcement
to coerce patients into substance abuse treatment. Respondents' assertion
that their ultimate purpose -- namely, protecting the health of both mother
and child -- is a benificent one is unavailing. While the ultimate goal
of the program may well have been to get the women in question into substance
abuse treatment and off drugs, the immediate objective of the searches was
to generate evidence for law enforcement purposes in order to reach that
goal. Given that purpose and given the extensive involvement of law enforcement
officials at every stage of the policy, this case simply does not fit within
the closely guarded category of "special needs." The fact that
positive test results were turned over to the police does not merely provide
a basis for distinguishing prior "special needs" cases. It also
provides an affirmative reason for enforcing the Fourth Amendment's strictures.
While state hospital employees, like other citizens, may have a duty to
provide the police with evidence of criminal conduct that they inadvertently
acquire in the course of routine treatment, when they undertake to obtain
such evidence from their patients for the specific purpose of incriminating
those patients, they have a special obligation to make sure that the patients
are fully informed about their constitutional rights, as standards of knowing
waiver require. Cf. Miranda v. Arizona, 384 U. S. 436. Pp. 9-18. |
| [20] | 186 F. 3d 469, reversed and remanded. |
| [21] | Stevens, J., delivered the opinion of the Court, in which O'Connor, Souter,
Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring
in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist,
C. J., and Thomas, J., joined as to Part II. |
| [22] | Court Below: 186 F. 3d 469 |
| [23] | The opinion of the court was delivered by: Justice Stevens |
| [24] | On Writ Of Certiorari To The United States Court Of Appeals For The Fourth
Circuit |
| [25] | In this case, we must decide whether a state hospital's performance of
a diagnostic test to obtain evidence of a patient's criminal conduct for
law enforcement purposes is an unreasonable search if the patient has not
consented to the procedure. More narrowly, the question is whether the interest
in using the threat of criminal sanctions to deter pregnant women from using
cocaine can justify a departure from the general rule that an official nonconsensual
search is unconstitutional if not authorized by a valid warrant. |
| [26] | I. |
| [27] | In the fall of 1988, staff members at the public hospital operated in
the city of Charleston by the Medical University of South Carolina (MUSC)
became concerned about an apparent increase in the use of cocaine by patients
who were receiving prenatal treatment.*fn1
In response to this perceived increase, as of April 1989, MUSC began to
order drug screens to be performed on urine samples from maternity patients
who were suspected of using cocaine. If a patient tested positive, she was
then referred by MUSC staff to the county substance abuse commission for
counseling and treatment. However, despite the referrals, the incidence
of cocaine use among the patients at MUSC did not appear to change. |
| [28] | Some four months later, Nurse Shirley Brown, the case manager for the
MUSC obstetrics department, heard a news broadcast reporting that the police
in Greenville, South Carolina, were arresting pregnant users of cocaine
on the theory that such use harmed the fetus and was therefore child abuse.*fn2
Nurse Brown discussed the story with MUSC's general counsel, Joseph C. Good,
Jr., who then contacted Charleston Solicitor Charles Condon in order to
offer MUSC's cooperation in prosecuting mothers whose children tested positive
for drugs at birth.*fn3 |
| [29] | After receiving Good's letter, Solicitor Condon took the first steps in
developing the policy at issue in this case. He organized the initial meetings,
decided who would participate, and issued the invitations, in which he described
his plan to prosecute women who tested positive for cocaine while pregnant.
The task force that Condon formed included representatives of MUSC, the
police, the County Substance Abuse Commission and the Department of Social
Services. Their deliberations led to MUSC's adoption of a 12-page document
entitled "POLICY M-7," dealing with the subject of "Management
of Drug Abuse During Pregnancy." App. to Pet. for Cert. A-53. |
| [30] | The first three pages of Policy M-7 set forth the procedure to be followed
by the hospital staff to "identify/assist pregnant patients suspected
of drug abuse." Id., at A-53 to A-56. The first section, entitled the
"Identification of Drug Abusers," provided that a patient should
be tested for cocaine through a urine drug screen if she met one or more
of nine criteria.*fn4
It also stated that a chain of custody should be followed when obtaining
and testing urine samples, presumably to make sure that the results could
be used in subsequent criminal proceedings. The policy also provided for
education and referral to a substance abuse clinic for patients who tested
positive. Most important, it added the threat of law enforcement intervention
that "provided the necessary ` leverage' to make the [p]olicy effective."
Brief for Respondents 8. That threat was, as respondents candidly acknowledge,
essential to the program's success in getting women into treatment and keeping
them there. |
| [31] | The threat of law enforcement involvement was set forth in two protocols,
the first dealing with the identification of drug use during pregnancy,
and the second with identification of drug use after labor. Under the latter
protocol, the police were to be notified without delay and the patient promptly
arrested. Under the former, after the initial positive drug test, the police
were to be notified (and the patient arrested) only if the patient tested
positive for cocaine a second time or if she missed an appointment with
a substance abuse counselor.*fn5
In 1990, however, the policy was modified at the behest of the solicitor's
office to give the patient who tested positive during labor, like the patient
who tested positive during a prenatal care visit, an opportunity to avoid
arrest by consenting to substance abuse treatment. |
| [32] | The last six pages of the policy contained forms for the patients to sign,
as well as procedures for the police to follow when a patient was arrested.
The policy also prescribed in detail the precise offenses with which a woman
could be charged, depending on the stage of her pregnancy. If the pregnancy
was 27 weeks or less, the patient was to be charged with simple possession.
If it was 28 weeks or more, she was to be charged with possession and distribution
to a person under the age of 18 -- in this case, the fetus. If she delivered
"while testing positive for illegal drugs," she was also to be
charged with unlawful neglect of a child. App. to Pet. for Cert. A-62. Under
the policy, the police were instructed to interrogate the arrestee in order
"to ascertain the identity of the subject who provided illegal drugs
to the suspect." Id., at A-63. Other than the provisions describing
the substance abuse treatment to be offered to women who tested positive,
the policy made no mention of any change in the prenatal care of such patients,
nor did it prescribe any special treatment for the newborns. |
| [33] | II. |
| [34] | Petitioners are 10 women who received obstetrical care at MUSC and who
were arrested after testing positive for cocaine. Four of them were arrested
during the initial implementation of the policy; they were not offered the
opportunity to receive drug treatment as an alternative to arrest. The others
were arrested after the policy was modified in 1990; they either failed
to comply with the terms of the drug treatment program or tested positive
for a second time. Respondents include the city of Charleston, law enforcement
officials who helped develop and enforce the policy, and representatives
of MUSC. |
| [35] | Petitioners' complaint challenged the validity of the policy under various
theories, including the claim that warrantless and nonconsensual drug tests
conducted for criminal investigatory purposes were unconstitutional searches.
Respondents advanced two principal defenses to the constitutional claim:
(1) that, as a matter of fact, petitioners had consented to the searches;
and (2) that, as a matter of law, the searches were reasonable, even absent
consent, because they were justified by special non-law-enforcement purposes.
The District Court rejected the second defense because the searches in question
"were not done by the medical university for independent purposes.
[Instead,] the police came in and there was an agreement reached that the
positive screens would be shared with the police." App. 1248-1249.
Accordingly, the District Court submitted the factual defense to the jury
with instructions that required a verdict in favor of petitioners unless
the jury found consent.*fn6
The jury found for respondents. |
| [36] | Petitioners appealed, arguing that the evidence was not sufficient to
support the jury's consent finding. The Court of Appeals for the Fourth
Circuit affirmed, but without reaching the question of consent. 186 F. 3d
469 (1999). Disagreeing with the District Court, the majority of the appellate
panel held that the searches were reasonable as a matter of law under our
line of cases recognizing that "special needs" may, in certain
exceptional circumstances, justify a search policy designed to serve non-law&nbhyph;enforcement
ends.*fn7 On
the understanding "that MUSC personnel conducted the urine drug screens
for medical purposes wholly independent of an intent to aid law enforcement
efforts,"*fn8
id., at 477, the majority applied the balancing test used in Treasury Employees
v. Von Raab, 489 U. S. 656 (1989), and Vernonia School Dist. 47J v. Acton,
515 U. S. 646 (1995), and concluded that the interest in curtailing the
pregnancy complications and medical costs associated with maternal cocaine
use outweighed what the majority termed a minimal intrusion on the privacy
of the patients. In dissent, Judge Blake concluded that the "special
needs" doctrine should not apply and that the evidence of consent was
insufficient to sustain the jury's verdict. 186 F. 3d, at 487-488. |
| [37] | We granted certiorari, 528 U. S. 1187 (2000), to review the appellate
court's holding on the "special needs" issue. Because we do not
reach the question of the sufficiency of the evidence with respect to consent,
we necessarily assume for purposes of our decision -- as did the Court of
Appeals -- that the searches were conducted without the informed consent
of the patients. We conclude that the judgment should be reversed and the
case remanded for a decision on the consent issue. |
| [38] | III. |
| [39] | Because MUSC is a state hospital, the members of its staff are government
actors, subject to the strictures of the Fourth Amendment. New Jersey v.
T. L. O., 469 U. S. 325, 335-337 (1985). Moreover, the urine tests conducted
by those staff members were indisputably searches within the meaning of
the Fourth Amendment. Skinner v. Railway Labor Executives' Assn., 489 U.
S. 602, 617 (1989).*fn9
Neither the District Court nor the Court of Appeals concluded that any of
the nine criteria used to identify the women to be searched provided either
probable cause to believe that they were using cocaine, or even the basis
for a reasonable suspicion of such use. Rather, the District Court and the
Court of Appeals viewed the case as one involving MUSC's right to conduct
searches without warrants or probable cause.*fn10
Furthermore, given the posture in which the case comes to us, we must assume
for purposes of our decision that the tests were performed without the informed
consent of the patients.*fn11 |
| [40] | Because the hospital seeks to justify its authority to conduct drug tests
and to turn the results over to law enforcement agents without the knowledge
or consent of the patients, this case differs from the four previous cases
in which we have considered whether comparable drug tests "fit within
the closely guarded category of constitutionally permissible suspicionless
searches." Chandler v. Miller, 520 U. S. 305, 309 (1997). In three
of those cases, we sustained drug tests for railway employees involved in
train accidents, Skinner v. Railway Labor Executives' Assn., 489 U. S. 602
(1989), for United States Customs Service employees seeking promotion to
certain sensitive positions, Treasury Employees v. Von Raab, 489 U. S. 656
(1989), and for high school students participating in interscholastic sports,
Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995). In the fourth
case, we struck down such testing for candidates for designated state offices
as unreasonable. Chandler v. Miller, 520 U. S. 305 (1997). |
| [41] | In each of those cases, we employed a balancing test that weighed the
intrusion on the individual's interest in privacy against the "special
needs" that supported the program. As an initial matter, we note that
the invasion of privacy in this case is far more substantial than in those
cases. In the previous four cases, there was no misunderstanding about the
purpose of the test or the potential use of the test results, and there
were protections against the dissemination of the results to third parties.*fn12
The use of an adverse test result to disqualify one from eligibility for
a particular benefit, such as a promotion or an opportunity to participate
in an extracurricular activity, involves a less serious intrusion on privacy
than the unauthorized dissemination of such results to third parties. The
reasonable expectation of privacy enjoyed by the typical patient undergoing
diagnostic tests in a hospital is that the results of those tests will not
be shared with non-medical personnel without her consent. See Brief for
American Medical Association et al. as Amici Curiae 11; Brief for American
Public Health Association et al. as Amici Curiae 6, 17-19.*fn13
In none of our prior cases was there any intrusion upon that kind of expectation.*fn14 |
| [42] | The critical difference between those four drug-testing cases and this
one, however, lies in the nature of the "special need" asserted
as justification for the warrantless searches. In each of those earlier
cases, the "special need" that was advanced as a justification
for the absence of a warrant or individualized suspicion was one divorced
from the State's general interest in law enforcement.*fn15
This point was emphasized both in the majority opinions sustaining the programs
in the first three cases,*fn16
as well as in the dissent in the Chandler case.*fn17
In this case, however, the central and indispensable feature of the policy
from its inception was the use of law enforcement to coerce the patients
into substance abuse treatment. This fact distinguishes this case from circumstances
in which physicians or psychologists, in the course of ordinary medical
procedures aimed at helping the patient herself, come across information
that under rules of law or ethics is subject to reporting requirements,
which no one has challenged here. See, e.g., Council on Ethical and Judicial
Affairs, American Medical Association, PolicyFinder, Current Opinions E-5.05
(2000) (requiring reporting where "a patient threatens to inflict serious
bodily harm to another person or to him or herself and there is a reasonable
probability that the patient may carry out the threat"); Ark. Code
Ann. §12-12-602 (1999) (requiring reporting of intentionally inflicted knife
or gunshot wounds); Ariz. Rev. Stat. Ann. §13-3620 (Supp. 2000) (requiring
"any . . . person having responsibility for the care or treatment of
children" to report suspected abuse or neglect to a peace officer or
child protection agency).*fn18 |
| [43] | Respondents argue in essence that their ultimate purpose -- namely, protecting
the health of both mother and child -- is a benificent one. In Chandler,
however, we did not simply accept the State's invocation of a "special
need." Instead, we carried out a "close review" of the scheme
at issue before concluding that the need in question was not "special,"
as that term has been defined in our cases. 520 U. S., at 322. In this case,
a review of the M-7 policy plainly reveals that the purpose actually served
by the MUSC searches "is ultimately indistinguishable from the general
interest in crime control." Indianapolis v. Edmond, 531 U. S. __, __
(2000) (slip op., at 15). |
| [44] | In looking to the programmatic purpose, we consider all the available
evidence in order to determine the relevant primary purpose. See, e.g.,
id., at __-__ (slip op., at 12-14). In this case, as Judge Blake put it
in her dissent below, "it . . . is clear from the record that an initial
and continuing focus of the policy was on the arrest and prosecution of
drug-abusing mothers . . . ." 186 F. 3d, at 484. Tellingly, the document
codifying the policy incorporates the police's operational guidelines. It
devotes its attention to the chain of custody, the range of possible criminal
charges, and the logistics of police notification and arrests. Nowhere,
however, does the document discuss different courses of medical treatment
for either mother or infant, aside from treatment for the mother's addiction. |
| [45] | Moreover, throughout the development and application of the policy, the
Charleston prosecutors and police were extensively involved in the day-to-day
administration of the policy. Police and prosecutors decided who would receive
the reports of positive drug screens and what information would be included
with those reports. App. 78-80, 145-146, 1058-1060. Law enforcement officials
also helped determine the procedures to be followed when performing the
screens.*fn19
Id., at 1052-1053. See also id., at 26-27, 945. In the course of the policy's
administration, they had access to Nurse Brown's medical files on the women
who tested positive, routinely attended the substance abuse team's meetings,
and regularly received copies of team documents discussing the women's progress.
Id., at 122-124, 609-610. Police took pains to coordinate the timing and
circumstances of the arrests with MUSC staff, and, in particular, Nurse
Brown. Id., at 1057-1058. |
| [46] | While the ultimate goal of the program may well have been to get the women
in question into substance abuse treatment and off of drugs, the immediate
objective of the searches was to generate evidence for law enforcement purposes*fn20
in order to reach that goal.*fn21
The threat of law enforcement may ultimately have been intended as a means
to an end, but the direct and primary purpose of MUSC's policy was to ensure
the use of those means. In our opinion, this distinction is critical. Because
law enforcement involvement always serves some broader social purpose or
objective, under respondents' view, virtually any nonconsensual suspicionless
search could be immunized under the special needs doctrine by defining the
search solely in terms of its ultimate, rather than immediate, purpose.*fn22
Such an approach is inconsistent with the Fourth Amendment. Given the primary
purpose of the Charleston program, which was to use the threat of arrest
and prosecution in order to force women into treatment, and given the extensive
involvement of law enforcement officials at every stage of the policy, this
case simply does not fit within the closely guarded category of "special
needs."*fn23 |
| [47] | The fact that positive test results were turned over to the police does
not merely provide a basis for distinguishing our prior cases applying the
"special needs" balancing approach to the determination of drug
use. It also provides an affirmative reason for enforcing the strictures
of the Fourth Amendment. While state hospital employees, like other citizens,
may have a duty to provide the police with evidence of criminal conduct
that they inadvertently acquire in the course of routine treatment, when
they undertake to obtain such evidence from their patients for the specific
purpose of incriminating those patients, they have a special obligation
to make sure that the patients are fully informed about their constitutional
rights, as standards of knowing waiver require.*fn24
Cf. Miranda v. Arizona, 384 U. S. 436 (1966). |
| [48] | As respondents have repeatedly insisted, their motive was benign rather
than punitive. Such a motive, however, cannot justify a departure from Fourth
Amendment protections, given the pervasive involvement of law enforcement
with the development and application of the MUSC policy. The stark and unique
fact that characterizes this case is that Policy M-7 was designed to obtain
evidence of criminal conduct by the tested patients that would be turned
over to the police and that could be admissible in subsequent criminal prosecutions.
While respondents are correct that drug abuse both was and is a serious
problem, "the gravity of the threat alone cannot be dispositive of
questions concerning what means law enforcement officers may employ to pursue
a given purpose." Indianapolis v. Edmond, 531 U. S., at __-___ (slip
op., at 9-10). The Fourth Amendment's general prohibition against nonconsensual,
warrantless, and suspicionless searches necessarily applies to such a policy.
See, e.g., Chandler, 520 U. S., at 308; Skinner 498 U. S., at 619. |
| [49] | Accordingly, the judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings consistent with this opinion. |
| [50] | It is so ordered. |
| [51] | Justice Kennedy, concurring in the judgment. |
| [52] | I agree that the search procedure in issue cannot be sustained under the
Fourth Amendment. My reasons for this conclusion differ somewhat from those
set forth by the Court, however, leading to this separate opinion. |
| [53] | I. |
| [54] | The Court does not dispute that the search policy at some level serves
special needs, beyond those of ordinary law enforcement, such as the need
to protect the health of mother and child when a pregnant mother uses cocaine.
Instead, the majority characterizes these special needs as the "ultimate
goal[s]" of the policy, as distinguished from the policy's "immediate
purpose," the collection of evidence of drug use, which, the Court
reasons, is the appropriate inquiry for the special needs analysis. Ante,
at 14-16. |
| [55] | The majority views its distinction between the ultimate goal and immediate
purpose of the policy as critical to its analysis. Ante, at 16. The distinction
the Court makes, however, lacks foundation in our special needs cases. All
of our special needs cases have turned upon what the majority terms the
policy's ultimate goal. For example, in Skinner v. Railway Labor Executives'
Assn., 489 U. S. 602 (1989), had we employed the majority's distinction,
we would have identified as the relevant need the collection of evidence
of drug and alcohol use by railway employees. Instead, we identified the
relevant need as "[t]he Government's interest in regulating the conduct
of railroad employees to ensure [railroad] safety." Id., at 620. In
Treasury Employees v. Von Raab, 489 U. S. 656 (1989), the majority's distinction
should have compelled us to isolate the relevant need as the gathering of
evidence of drug abuse by would-be drug interdiction officers. Instead,
the special needs the Court identified were the necessities "to deter
drug use among those eligible for promotion to sensitive positions within
the [United States Customs] Service and to prevent the promotion of drug
users to those positions." Id., at 666. In Vernonia School Dist. 47J
v. Acton, 515 U. S. 646 (1995), the majority's distinction would have required
us to identify the immediate purpose of gathering evidence of drug use by
student-athletes as the relevant "need" for purposes of the special
needs analysis. Instead, we sustained the policy as furthering what today's
majority would have termed the policy's ultimate goal: "[d]eterring
drug use by our Nation's schoolchildren," and particularly by student-athletes,
because "the risk of immediate physical harm to the drug user or those
with whom he is playing his sport is particularly high." Id., at 661-662. |
| [56] | It is unsurprising that in our prior cases we have concentrated on what
the majority terms a policy's ultimate goal, rather than its proximate purpose.
By very definition, in almost every case the immediate purpose of a search
policy will be to obtain evidence. The circumstance that a particular search,
like all searches, is designed to collect evidence of some sort reveals
nothing about the need it serves. Put a different way, although procuring
evidence is the immediate result of a successful search, until today that
procurement has not been identified as the special need which justifies
the search. |
| [57] | II. |
| [58] | While the majority's reasoning seems incorrect in the respects just discussed,
I agree with the Court that the search policy cannot be sustained. As the
majority demonstrates and well explains, there was substantial law enforcement
involvement in the policy from its inception. None of our special needs
precedents has sanctioned the routine inclusion of law enforcement, both
in the design of the policy and in using arrests, either threatened or real,
to implement the system designed for the special needs objectives. The special
needs cases we have decided do not sustain the active use of law enforcement,
including arrest and prosecutions, as an integral part of a program which
seeks to achieve legitimate, civil objectives. The traditional warrant and
probable-cause requirements are waived in our previous cases on the explicit
assumption that the evidence obtained in the search is not intended to be
used for law enforcement purposes. Most of those tested for drug use under
the policy at issue here were not brought into direct contact with law enforcement.
This does not change the fact, however, that, as a systemic matter, law
enforcement was a part of the implementation of the search policy in each
of its applications. Every individual who tested positive was given a letter
explaining the policy not from the hospital but from the solicitor's office.
Everyone who tested positive was told a second positive test or failure
to undergo substance abuse treatment would result in arrest and prosecution.
As the Court holds, the hospital acted, in some respects, as an institutional
arm of law enforcement for purposes of the policy. Under these circumstances,
while the policy may well have served legitimate needs unrelated to law
enforcement, it had as well a penal character with a far greater connection
to law enforcement than other searches sustained under our special needs
rationale. |
| [59] | In my view, it is necessary and prudent to be explicit in explaining the
limitations of today's decision. The beginning point ought to be to acknowledge
the legitimacy of the State's interest in fetal life and of the grave risk
to the life and health of the fetus, and later the child, caused by cocaine
ingestion. Infants whose mothers abuse cocaine during pregnancy are born
with a wide variety of physical and neurological abnormalities. See Chiriboga,
Brust, Bateman, & Hauser, Dose-Response Effect of Fetal Cocaine Exposure
on Newborn Neurologic Function, 103 Pediatrics 79 (1999) (finding that,
compared with unexposed infants, cocaine-exposed infants experienced higher
rates of intrauterine growth retardation, smaller head circumference, global
hypertonia, coarse tremor, and extensor leg posture). Prenatal exposure
to cocaine can also result in developmental problems which persist long
after birth. See Arendt, Angelopoulos, Salvator, & Singer, Motor Development
of Cocaine-exposed Children at Age Two Years, 103 Pediatrics 86 (1999) (concluding
that, at two years of age, children who were exposed to cocaine in utero
exhibited significantly less fine and gross motor development than those
not so exposed); Chasnoff et al., Prenatal Exposure to Cocaine and Other
Drugs: Outcome at Four to Six Years, 846 Annals of the New York Academy
of Sciences 314, 319-320 (J. Harvey and B. Kosofsky eds. 1998) (finding
that four to six year olds who were exposed to cocaine in utero exhibit
higher instances of depression, anxiety, social, thought, and attention
problems, and delinquent and aggressive behaviors than their unexposed counterparts).
There can be no doubt that a mother's ingesting this drug can cause tragic
injury to a fetus and a child. There should be no doubt that South Carolina
can impose punishment upon an expectant mother who has so little regard
for her own unborn that she risks causing him or her lifelong damage and
suffering. The State, by taking special measures to give rehabilitation
and training to expectant mothers with this tragic addiction or weakness,
acts well within its powers and its civic obligations. |
| [60] | The holding of the Court, furthermore, does not call into question the
validity of mandatory reporting laws such as child abuse laws which require
teachers to report evidence of child abuse to the proper authorities, even
if arrest and prosecution is the likely result. That in turn highlights
the real difficulty. As this case comes to us, and as reputable sources
confirm, see K. Farkas, Training Health Care and Human Services Personnel
in Perinatal Substance Abuse, in Drug & Alcohol Abuse Reviews, Substance
Abuse During Pregnancy and Childhood, 13, 27-28 (R. Watson ed. 1995); U.
S. Dept. of Health and Human Services, Substance Abuse and Mental Health
Services Administration, Pregnant, Substance-Using Women 48 (1993), we must
accept the premise that the medical profession can adopt acceptable criteria
for testing expectant mothers for cocaine use in order to provide prompt
and effective counseling to the mother and to take proper medical steps
to protect the child. If prosecuting authorities then adopt legitimate procedures
to discover this information and prosecution follows, that ought not to
invalidate the testing. One of the ironies of the case, then, may be that
the program now under review, which gives the cocaine user a second and
third chance, might be replaced by some more rigorous system. We must, however,
take the case as it comes to us; and the use of handcuffs, arrests, prosecutions,
and police assistance in designing and implementing the testing and rehabilitation
policy cannot be sustained under our previous cases concerning mandatory
testing. |
| [61] | III. |
| [62] | An essential, distinguishing feature of the special needs cases is that
the person searched has consented, though the usual voluntariness analysis
is altered because adverse consequences, (e.g., dismissal from employment
or disqualification from playing on a high school sports team), will follow
from refusal. The person searched has given consent, as defined to take
into account that the consent was not voluntary in the full sense of the
word. See Skinner, 489 U. S., at 615; Von Raab, 489 U. S., at 660-661; Acton,
515 U. S., at 650-651. The consent, and the circumstances in which it was
given, bear upon the reasonableness of the whole special needs program. |
| [63] | Here, on the other hand, the question of consent, even with the special
connotation used in the special needs cases, has yet to be decided. Indeed,
the Court finds it necessary to take the unreal step of assuming there was
no voluntary consent at all. Thus, we have erected a strange world for deciding
the case. |
| [64] | My discussion has endeavored to address the permissibility of a law enforcement
purpose in this artificial context. The role played by consent might have
affected our assessment of the issues. My concurrence in the judgment, furthermore,
should not be interpreted as having considered or resolved the important
questions raised by Justice Scalia with reference to whether limits might
be imposed on the use of the evidence if in fact it were obtained with the
patient's consent and in the context of the special needs program. Had we
the prerogative to discuss the role played by consent, the case might have
been quite a different one. All are in agreement, of course, that the Court
of Appeals will address these issues in further proceedings on remand. |
| [65] | With these remarks, I concur in the judgment. |
| [66] | Justice Scalia, with whom The Chief Justice and Justice Thomas join as
to Part II, dissenting. |
| [67] | There is always an unappealing aspect to the use of doctors and nurses,
ministers of mercy, to obtain incriminating evidence against the supposed
objects of their ministration -- although here, it is correctly pointed
out, the doctors and nurses were ministering not just to the mothers but
also to the children whom their cooperation with the police was meant to
protect. But whatever may be the correct social judgment concerning the
desirability of what occurred here, that is not the issue in the present
case. The Constitution does not resolve all difficult social questions,
but leaves the vast majority of them to resolution by debate and the democratic
process -- which would produce a decision by the citizens of Charleston,
through their elected representatives, to forbid or permit the police action
at issue here. The question before us is a narrower one: whether, whatever
the desirability of this police conduct, it violates the Fourth Amendment's
prohibition of unreasonable searches and seizures. In my view, it plainly
does not. |
| [68] | I. |
| [69] | The first step in Fourth Amendment analysis is to identify the search
or seizure at issue. What petitioners, the Court, and to a lesser extent
the concurrence really object to is not the urine testing, but the hospital's
reporting of positive drug-test results to police. But the latter is obviously
not a search. At most it may be a "derivative use of the product of
a past unlawful search," which, of course, "work[s] no new Fourth
Amendment wrong" and "presents a question, not of rights, but
of remedies." United States v. Calandra, 414 U. S. 338, 354 (1974).
There is only one act that could conceivably be regarded as a search of
petitioners in the present case: the taking of the urine sample. I suppose
the testing of that urine for traces of unlawful drugs could be considered
a search of sorts, but the Fourth Amendment protects only against searches
of citizens' "persons, houses, papers, and effects"; and it is
entirely unrealistic to regard urine as one of the "effects" (i.e.,
part of the property) of the person who has passed and abandoned it. Cf.
California v. Greenwood, 486 U. S. 35 (1988) (garbage left at curb is not
property protected by the Fourth Amendment). Some would argue, I suppose,
that testing of the urine is prohibited by some generalized privacy right
"emanating" from the "penumbras" of the Constitution
(a question that is not before us); but it is not even arguable that the
testing of urine that has been lawfully obtained is a Fourth Amendment search.
(I may add that, even if it were, the factors legitimizing the taking of
the sample, which I discuss below, would likewise legitimize the testing
of it.) |
| [70] | It is rudimentary Fourth Amendment law that a search which has been consented
to is not unreasonable. There is no contention in the present case that
the urine samples were extracted forcibly. The only conceivable bases for
saying that they were obtained without consent are the contentions (1) that
the consent was coerced by the patients' need for medical treatment, (2)
that the consent was uninformed because the patients were not told that
the tests would include testing for drugs, and (3) that the consent was
uninformed because the patients were not told that the results of the tests
would be provided to the police.*fn25
(When the court below said that it was reserving the factual issue of consent,
see 186 F. 3d 469, 476 (CA4 1999), it was referring at most to these three
-- and perhaps just to the last two.) |
| [71] | Under our established Fourth Amendment law, the last two contentions would
not suffice, even without reference to the special-needs doctrine. The Court's
analogizing of this case to Miranda v. Arizona, 384 U. S. 436 (1966), and
its claim that "standards of knowing waiver" apply, ante, at 17,
are flatly contradicted by our jurisprudence, which shows that using lawfully
(but deceivingly) obtained material for purposes other than those represented,
and giving that material or information derived from it to the police, is
not unconstitutional. In Hoffa v. United States, 385 U. S. 293 (1966), "[t]he
argument [was] that [the informant's] failure to disclose his role as a
government informant vitiated the consent that the petitioner gave"
for the agent's access to evidence of criminal wrongdoing, id., at 300.
We rejected that argument, because "the Fourth Amendment [does not
protect] a wrongdoer's misplaced belief that a person to whom he voluntarily
confides his wrongdoing will not reveal it." Id., at 302. Because the
defendant had voluntarily provided access to the evidence, there was no
reasonable expectation of privacy to invade. Abuse of trust is surely a
sneaky and ungentlemanly thing, and perhaps there should be (as there are)
laws against such conduct by the government. See, e.g., 50 U. S. C. §403-7
(1994 ed., Supp. IV) (prohibiting the "Intelligence Community['s]"
use of journalists as agents). That, however, is immaterial for Fourth Amendment
purposes, for "however strongly a defendant may trust an apparent colleague,
his expectations in this respect are not protected by the Fourth Amendment
when it turns out that the colleague is a government agent regularly communicating
with the authorities." United States v. White, 401 U. S. 745, 749 (1971)
(emphasis added). The Hoffa line of cases, I may note, does not distinguish
between operations meant to catch a criminal in the act, and those meant
only to gather evidence of prior wrongdoing. See, e.g., United States v.
Miller, 425 U. S. 435, 440-443 (1976); cf. Illinois v. Perkins, 496 U. S.
292, 298 (1990) (relying on Hoffa in holding the Miranda rule did not require
suppression of an inmate confession given an agent posing as a fellow prisoner). |
| [72] | Until today, we have never held -- or even suggested -- that material
which a person voluntarily entrusts to someone else cannot be given by that
person to the police, and used for whatever evidence it may contain.*fn26
Without so much as discussing the point, the Court today opens a hole in
our Fourth Amendment jurisprudence, the size and shape of which is entirely
indeterminate. Today's holding would be remarkable enough if the confidential
relationship violated by the police conduct were at least one protected
by state law. It would be surprising to learn, for example, that in a State
which recognizes a spousal evidentiary privilege the police cannot use evidence
obtained from a cooperating husband or wife. But today's holding goes even
beyond that, since there does not exist any physician-patient privilege
in South Carolina. See, e.g., Peagler v. Atlantic Coast R. R. Co., 232 S.
C. 274, 101 S. E. 2d 821 (1958). Since the Court declines even to discuss
the issue, it leaves law enforcement officials entirely in the dark as to
when they can use incriminating evidence obtained from "trusted"
sources.*fn27
Presumably the lines will be drawn in the case-by-case development of a
whole new branch of Fourth Amendment jurisprudence, taking yet another social
judgment (which confidential relationships ought not be invaded by the police)
out of democratic control, and confiding it to the uncontrolled judgment
of this Court -- uncontrolled because there is no common-law precedent to
guide it. I would adhere to our established law, which says that information
obtained through violation of a relationship of trust is obtained consensually,
and is hence not a search.*fn28 |
| [73] | There remains to be considered the first possible basis for invalidating
this search, which is that the patients were coerced to produce their urine
samples by their necessitous circumstances, to-wit, their need for medical
treatment of their pregnancy. If that was coercion, it was not coercion
applied by the government -- and if such non-governmental coercion sufficed,
the police would never be permitted to use the ballistic evidence obtained
from treatment of a patient with a bullet wound. And the Fourth Amendment
would invalidate those many state laws that require physicians to report
gunshot wounds,*fn29
evidence of spousal abuse,*fn30
and (like the South Carolina law relevant here, see S. C. Code Ann. §20-7-510
(2000)) evidence of child abuse.*fn31 |
| [74] | II. |
| [75] | I think it clear, therefore, that there is no basis for saying that obtaining
of the urine sample was unconstitutional. The special-needs doctrine is
thus quite irrelevant, since it operates only to validate searches and seizures
that are otherwise unlawful. In the ensuing discussion, however, I shall
assume (contrary to legal precedent) that the taking of the urine sample
was (either because of the patients' necessitous circumstances, or because
of failure to disclose that the urine would be tested for drugs, or because
of failure to disclose that the results of the test would be given to the
police) coerced. Indeed, I shall even assume (contrary to common sense)
that the testing of the urine constituted an unconsented search of the patients'
effects. On those assumptions, the special-needs doctrine would become relevant;
and, properly applied, would validate what was done here. |
| [76] | The conclusion of the Court that the special-needs doctrine is inapplicable
rests upon its contention that respondents "undert[ook] to obtain [drug]
evidence from their patients" not for any medical purpose, but "for
the specific purpose of incriminating those patients." Ante, at 17
(emphasis in original). In other words, the purported medical rationale
was merely a pretext; there was no special need. See Skinner v. Railway
Labor Executives' Assn., 489 U. S. 602, 621, n. 5 (1989). This contention
contradicts the District Court's finding of fact that the goal of the testing
policy "was not to arrest patients but to facilitate their treatment
and protect both the mother and unborn child." App. to Pet. for Cert.
A-38.*fn32
This finding is binding upon us unless clearly erroneous, see Fed. Rule
Civ. Proc. 52(a). Not only do I find it supportable; I think any other finding
would have to be overturned. |
| [77] | The cocaine tests started in April 1989, neither at police suggestion
nor with police involvement. Expectant mothers who tested positive were
referred by hospital staff for substance-abuse treatment, ante, at 2 (opinion
of the Court) -- an obvious health benefit to both mother and child. See
App. 43 (testimony that a single use of cocaine can cause fetal damage).
And, since "[i]nfants whose mothers abuse cocaine during pregnancy
are born with a wide variety of physical and neurological abnormalities,"
ante, at 4 (Kennedy, J., concurring in judgment), which require medical
attention, see Brief in Opposition A76-A77, the tests were of additional
medical benefit in predicting needed postnatal treatment for the child.
Thus, in their origin -- before the police were in any way involved -- the
tests had an immediate, not merely an "ultimate," ante, at 14
(opinion of the Court), purpose of improving maternal and infant health.
Several months after the testing had been initiated, a nurse discovered
that local police were arresting pregnant users of cocaine for child abuse,
the hospital's general counsel wrote the county solicitor to ask "what,
if anything, our Medical Center needs to do to assist you in this matter,"
App. 499 (South Carolina law requires child abuse to be reported, see S.
C. Code Ann. §20-7-510), the police suggested ways to avoid tainting evidence,
and the hospital and police in conjunction used the testing program as a
means of securing what the Court calls the "ultimate" health benefit
of coercing drug-abusing mothers into drug treatment. See ante, at 2-4,
14. Why would there be any reason to believe that, once this policy of using
the drug tests for their "ultimate" health benefits had been adopted,
use of them for their original, immediate, benefits somehow disappeared,
and testing somehow became in its entirety nothing more than a "pretext"
for obtaining grounds for arrest? On the face of it, this is incredible.
The only evidence of the exclusively arrest-related purpose of the testing
adduced by the Court is that the police-cooperation policy itself does not
describe how to care for cocaine-exposed infants. See ante, at 4, 14. But
of course it does not, since that policy, adopted months after the cocaine
testing was initiated, had as its only health object the "ultimate"
goal of inducing drug treatment through threat of arrest. Does the Court
really believe (or even hope) that, once invalidation of the program challenged
here has been decreed, drug testing will cease? |
| [78] | In sum, there can be no basis for the Court's purported ability to "distinguis[h]
this case from circumstances in which physicians or psychologists, in the
course of ordinary medical procedures aimed at helping the patient herself,
come across information that . . . is subject to reporting requirements,"
ante, at 12-13, unless it is this: That the addition of a law-enforcement-related
purpose to a legitimate medical purpose destroys applicability of the "special-needs"
doctrine. But that is quite impossible, since the special-needs doctrine
was developed, and is ordinarily employed, precisely to enable searches
by law enforcement officials who, of course, ordinarily have a law enforcement
objective. Thus, in Griffin v. Wisconsin, 483 U. S. 868 (1987), a probation
officer received a tip from a detective that petitioner, a felon on parole,
possessed a firearm. Accompanied by police, he conducted a warrantless search
of petitioner's home. The weapon was found and used as evidence in the probationer's
trial for unlawful possession of a firearm. See id., at 870-872. Affirming
denial of a motion to suppress, we concluded that the "special need"
of assuring compliance with terms of release justified a warrantless search
of petitioner's home. Notably, we observed that a probation officer is not |
| [79] | "the police officer who normally conducts searches against the ordinary
citizen. He is an employee of the State Department of Health and Social
Services who, while assuredly charged with protecting the public interest,
is also supposed to have in mind the welfare of the probationer . . . .
In such a setting, we think it reasonable to dispense with the warrant requirement."
Id., at 876-877. |
| [80] | Like the probation officer, the doctors here do not "ordinarily conduc[t]
searches against the ordinary citizen," and they are "supposed
to have in mind the welfare of the [mother and child]." That they have
in mind in addition the provision of evidence to the police should make
no difference. The Court suggests that if police involvement in this case
was in some way incidental and after-the-fact, that would make a difference
in the outcome. See ante, at 12-16. But in Griffin, even more than here,
police were involved in the search from the very beginning; indeed, the
initial tip about the gun came from a detective. Under the factors relied
upon by the Court, the use of evidence approved in Griffin would have been
permitted only if the parole officer had been untrained in chain-of-custody
procedures, had not known of the possibility a gun was present, and had
been unaccompanied by police when he simply happened upon the weapon. Why
any or all of these is constitutionally significant is baffling. |
| [81] | Petitioners seek to distinguish Griffin by observing that probationers
enjoy a lesser expectation of privacy than does the general public. That
is irrelevant to the point I make here, which is that the presence of a
law enforcement purpose does not render the special-needs doctrine inapplicable.
In any event, I doubt whether Griffin's reasonable expectation of privacy
in his home was any less than petitioners' reasonable expectation of privacy
in their urine taken, or in the urine tests performed, in a hospital --
especially in a State such as South Carolina, which recognizes no physician-patient
testimonial privilege and requires the physician's duty of confidentiality
to yield to public policy, see McCormick v. England, 328 S. C. 627, 633,
640-642, 494 S. E. 2d 431, 434, 438-439 (Ct. App. 1997); and which requires
medical conditions that indicate a violation of the law to be reported to
authorities, see, e.g., S. C. Code Ann. §20-7-510 (2000) (child abuse).
Cf. Whalen v. Roe, 429 U. S. 589, 597-598 (1977) (privacy interest does
not forbid government to require hospitals to provide, for law enforcement
purposes, names of patients receiving prescriptions of frequently abused
drugs). |
| [82] | The concurrence makes essentially the same basic error as the Court, though
it puts the point somewhat differently: "The special needs cases we
have decided," it says, "do not sustain the active use of law
enforcement . . . as an integral part of a program which seeks to achieve
legitimate, civil objectives." Ante, at 3. Griffin shows that is not
true. Indeed, Griffin shows that there is not even any truth in the more
limited proposition that our cases do not support application of the special-needs
exception where the "legitimate, civil objectives" are sought
only through the use of law enforcement means. (Surely the parole officer
in Griffin was using threat of reincarceration to assure compliance with
parole). But even if this latter proposition were true, it would invalidate
what occurred here only if the drug testing sought exclusively the "ultimate"
health benefits achieved by coercing the mothers into drug treatment through
threat of prosecution. But in fact the drug testing sought, independently
of law enforcement involvement, the "immediate" health benefits
of identifying drug-impaired mother and child for necessary medical treatment.
The concurrence concedes that if the testing is conducted for medical reasons,
the fact that "prosecuting authorities then adopt legitimate procedures
to discover this information and prosecution follows . . . ought not to
invalidate the testing." Ante, at 5 (emphasis added). But here the
police involvement in each case did take place after the testing was conducted
for independent reasons. Surely the concurrence cannot mean that no police-suggested
procedures (such as preserving the chain of custody of the urine sample)
can be applied until after the testing; or that the police-suggested procedures
must have been designed after the testing. The facts in Griffin (and common
sense) show that this cannot be so. It seems to me that the only real distinction
between what the concurrence must reasonably be thought to be approving,
and what we have here, is that here the police took the lesser step of initially
threatening prosecution rather than bringing it. |
| [83] | As I indicated at the outset, it is not the function of this Court --
at least not in Fourth Amendment cases -- to weigh petitioners' privacy
interest against the State's interest in meeting the crisis of "crack
babies" that developed in the late 1980's. I cannot refrain from observing,
however, that the outcome of a wise weighing of those interests is by no
means clear. The initial goal of the doctors and nurses who conducted cocaine-testing
in this case was to refer pregnant drug addicts to treatment centers, and
to prepare for necessary treatment of their possibly affected children.
When the doctors and nurses agreed to the program providing test results
to the police, they did so because (in addition to the fact that child abuse
was required by law to be reported) they wanted to use the sanction of arrest
as a strong incentive for their addicted patients to undertake drug-addiction
treatment. And the police themselves used it for that benign purpose, as
is shown by the fact that only 30 of 253 women testing positive for cocaine
were ever arrested, and only 2 of those prosecuted. See App. 1125-1126.
It would not be unreasonable to conclude that today's judgment, authorizing
the assessment of damages against the county solicitor and individual doctors
and nurses who participated in the program, proves once again that no good
deed goes unpunished. |
| [84] | But as far as the Fourth Amendment is concerned: There was no unconsented
search in this case. And if there was, it would have been validated by the
special-needs doctrine. For these reasons, I respectfully dissent. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [85] | *fn1 As several
witnesses testified at trial, the problem of "crack babies" was
widely perceived in the late 1980's as a national epidemic, prompting considerable
concern both in the medical community and among the general populace. |
| [86] | *fn2 Under
South Carolina law, a viable fetus has historically been regarded as a person;
in 1995, the South Carolina Supreme Court held that the ingestion of cocaine
during the third trimester of pregnancy constitutes criminal child neglect.
Whitner v. South Carolina, 328 S. C. 1, 492 S. E. 2d 777 (1995), cert. denied,
523 U. S. 1145 (1998). |
| [87] | *fn3 In his
letter dated August 23, 1989, Good wrote: " Please advise us if your
office is anticipating future criminal action and what if anything our Medical
Center needs to do to assist you in this matter." App. to Pet. for
Cert. A-67. |
| [88] | *fn4 Those
criteria were as follows: "1. No prenatal care "2. Late prenatal
care after 24 weeks gestation "3. Incomplete prenatal care "4.
Abruptio placentae "5. Intrauterine fetal death "6. Preterm labor
` of no obvious cause' "7. IUGR [intrauterine growth retardation] `
of no obvious cause' "8. Previously known drug or alcohol abuse "9.
Unexplained congenital anomalies." Id., at A-53 to A-54. |
| [89] | *fn5 Despite
the conditional description of the first category, when the policy was in
its initial stages, a positive test was immediately reported to the police,
who then promptly arrested the patient. |
| [90] | *fn6 The instructions
read: "THERE WERE NO SEARCH WARRANTS ISSUED BY A MAGISTRATE OR ANY
OTHER PROPER JUDICIAL OFFICER TO PERMIT THESE URINE SCREENS TO BE TAKEN.
THERE NOT BEING A WARRANT ISSUED, THEY ARE UNREASONABLE AND IN VIOLATION
OF THE CONSTITUTION OF THE UNITED STATES, UNLESS THE DEFENDANTS HAVE SHOWN
BY THE GREATER WEIGHT OR PREPONDERANCE OF THE EVIDENCE THAT THE PLAINTIFFS
CONSENTED TO THOSE SEARCHES." App. 1314-1315. Under the judge's instructions,
in order to find that the plaintiffs had consented to the searches, it was
necessary for the jury to find that they had consented to the taking of
the samples, to the testing for evidence of cocaine, and to the possible
disclosure of the test results to the police. Respondents have not argued,
as Justice Scalia does, that it is permissible for members of the staff
of a public hospital to use diagnostic tests "deceivingly" to
obtain incriminating evidence from their patients. See post, at 3 (dissenting
opinion). |
| [91] | *fn7 The term
"special needs" first appeared in Justice Blackmun's opinion concurring
in the judgment in New Jersey v. T. L. O., 469 U. S. 325, 351 (1985). In
his concurrence, Justice Blackmun agreed with the Court that there are limited
exceptions to the probable-cause requirement, in which reasonableness is
determined by "a careful balancing of governmental and private interests,"
but concluded that such a test should only be applied "in those exceptional
circumstances in which special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable . . . ."
Ibid. This Court subsequently adopted the "special needs" terminology
in O'Connor v. Ortega, 480 U. S. 709, 720 (1987) (plurality opinion), and
Griffin v. Wisconsin, 483 U. S. 868, 873 (1987), concluding that, in limited
circumstances, a search unsupported by either warrant or probable cause
can be constitutional when "special needs" other than the normal
need for law enforcement provide sufficient justification. See also Vernonia
School District 47J v. Acton, 515 U. S. 646, 652-653 (1995). |
| [92] | *fn8 The majority
stated that the District Court had made such a finding. 186 F. 3d 469, 477
(CA4 1999). The text of the relevant finding, made in the context of petitioners'
now abandoned Title VI claim, reads as follows: "The policy was applied
in all maternity departments at MUSC. Its goal was not to arrest patients
but to facilitate their treatment and protect both the mother and unborn
child." App. to Pet. for Cert. A-38. That finding, however, must be
read in light of this comment by the District Court with respect to the
Fourth Amendment claim: ". . . THESE SEARCHES WERE NOT DONE BY THE
MEDICAL UNIVERSITY FOR INDEPENDENT PURPOSES. IF THEY HAD BEEN, THEN THEY
WOULD NOT IMPLICATE THE FOURTH AMENDMENT. OBVIOUSLY AS I POINT OUT THERE
ON PAGE 4, NORMALLY URINE SCREENS AND BLOOD TESTS AND THAT TYPE OF THING
CAN BE TAKEN BY HEALTH CARE PROVIDERS WITHOUT HAVING TO WORRY ABOUT THE
FOURTH AMENDMENT. THE ONLY REASON THE FOURTH AMENDMENT IS IMPLICATED HERE
IS THAT THE POLICE CAME IN AND THERE WAS AN AGREEMENT REACHED THAT THE POSITIVE
SCREENS WOULD BE SHARED WITH THE POLICE. AND THEN THE SCREEN IS NOT DONE
INDEPENDENT OF POLICE, IT'S DONE IN CONJUNCTION WITH THE POLICE AND THAT
IMPLICATES THE FOURTH AMENDMENT." App. 1247-1249. |
| [93] | *fn9 In arguing
that the urine tests at issue were not searches, the dissent attempts to
disaggregate the taking and testing of the urine sample from the reporting
of the results to the police. See post, at 2. However, in our special needs
cases, we have routinely treated urine screens taken by state agents as
searches within the meaning of the Fourth Amendment even though the results
were not reported to the police, see, e.g., Chandler v. Miller, 520 U. S.
305 (1997); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995); Skinner
v. Railway Labor Executives' Assn., 489 U. S. 602, 617 (1989); Treasury
Employees v. Von Raab, 489 U. S. 656 (1989), and respondents here do not
contend that the tests were not searches. Rather, they argue that the searches
were justified by consent and/or by special needs. |
| [94] | *fn10 In
a footnote to their brief, respondents do argue that the searches were not
entirely suspicionless. Brief for Respondents 23, n. 13. They do not, however,
point to any evidence in the record indicating that any of the nine search
criteria was more apt to be caused by cocaine use than by some other factor,
such as malnutrition, illness, or indigency. More significantly, their legal
argument and the reasoning of the majority panel opinion rest on the premise
that the policy would be valid even if the tests were conducted randomly. |
| [95] | *fn11 The
dissent would have us do otherwise and resolve the issue of consent in favor
of respondents. Because the Court of Appeals did not discuss this issue,
we think it more prudent to allow that court to resolve the legal and factual
issues in the first instance, and we express no view on those issues. See,
e.g., Glover v. United States, 531 U. S. ___ (2001); National Collegiate
Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999). |
| [96] | *fn12 Chandler,
520 U. S., at 312, 318; Acton, 515 U. S., at 658; Skinner, 489 U. S., at
621, n. 5, 622, n. 6; Von Raab, 489 U. S., at 663, 666-667, 672, n. 2. |
| [97] | *fn13 There
are some circumstances in which state hospital employees, like other citizens,
may have a duty to provide law enforcement officials with evidence of criminal
conduct acquired in the course of routine treatment, see, e.g., S. C. Code
Ann. §20-7-510 (2000) (physicians and nurses required to report to child
welfare agency or law enforcement authority "when in the person's professional
capacity the person" receives information that a child has been abused
or neglected). While the existence of such laws might lead a patient to
expect that members of the hospital staff might turn over evidence acquired
in the course of treatment to which the patient had consented, they surely
would not lead a patient to anticipate that hospital staff would intentionally
set out to obtain incriminating evidence from their patients for law enforcement
purposes. |
| [98] | *fn14 In
fact, we have previously recognized that an intrusion on that expectation
may have adverse consequences because it may deter patients from receiving
needed medical care. Whalen v. Roe, 429 U. S. 589, 599-600 (1977). Cf. Poland,
Dombrowski, Ager, & Sokol, Punishing pregnant drug users: enhancing
the flight from care, 31 Drug and Alcohol Dependence 199-203 (1993). |
| [99] | *fn15 As
the Chief Justice recently noted: "The ` special needs' doctrine, which
has been used to uphold certain suspicionless searches performed for reasons
unrelated to law enforcement, is an exception to the general rule that a
search must be based on individualized suspicion of wrongdoing." Indianapolis
v. Edmond, 531 U. S. __, ___ (2000) (slip op., at 7) (dissenting opinion);
see also nn. 16-17, infra. In T. L. O., we made a point of distinguishing
searches "carried out by school authorities acting alone and on their
own authority" from those conducted "in conjunction with or at
the behest of law enforcement agencies." 469 U. S., at 341, n. 7. The
dissent, however, relying on Griffin v. Wisconsin, 483 U. S. 868 (1987),
argues that the special needs doctrine "is ordinarily employed, precisely
to enable searches by law enforcement officials who, of course, ordinarily
have a law enforcement objective." Post, at 7. Viewed in the context
of our special needs case law and even viewed in isolation, Griffin does
not support the proposition for which the dissent invokes it. In other special
needs cases, we have tolerated suspension of the Fourth Amendment's warrant
or probable cause requirement in part because there was no law enforcement
purpose behind the searches in those cases, and there was little, if any,
entanglement with law enforcement. See Skinner, 489 U. S., at 620-621; Von
Raab, 489 U. S., at 665-666; Acton, 515 U. S., at 658. Moreover, after our
decision in Griffin, we reserved the question whether "routine use
in criminal prosecutions of evidence obtained pursuant to the administrative
scheme would give rise to an inference of pretext, or otherwise impugn the
administrative nature of the . . . program." Skinner, 489 U. S., at
621, n. 5. In Griffin itself, this Court noted that "[a]lthough a probation
officer is not an impartial magistrate, neither is he the police officer
who normally conducts searches against the ordinary citizen." 483 U.
S., at 876. Finally, we agree with petitioners that Griffin is properly
read as limited by the fact that probationers have a lesser expectation
of privacy than the public at large. Id., at 874-875. |
| [100] | *fn16 In
Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989), this Court
noted that "[t]he FRA has prescribed toxicological tests, not to assist
in the prosecution of employees, but rather `to prevent accidents and casualties
in railroad operations that result from impairment of employees by alcohol
or drugs.' " Id., at 620-621 (quoting 49 CFR §219.1(a) (1987)). Similarly,
in Treasury Employees v. Von Raab, 489 U. S. 656 (1989), we concluded that
it was "clear that the Customs Service's drug-testing program is not
designed to serve the ordinary needs of law enforcement. Test results may
not be used in a criminal prosecution of the employee without the employee's
consent." Id., at 665-666. In the same vein, in Acton, 515 U. S., at
658, we relied in part on the fact that "the results of the tests are
disclosed only to a limited class of school personnel who have a need to
know; and they are not turned over to law enforcement authorities or used
for any internal disciplinary function" in finding the searches reasonable. |
| [101] | *fn17 "Today's
opinion speaks of a `closely guarded' class of permissible suspicionless
searches which must be justified by a `special need.' But this term, as
used in Skinner and Von Raab and on which the Court now relies, was used
in a quite different sense than it is used by the Court today. In Skinner
and Von Raab it was used to describe a basis for a search apart from the
regular needs of law enforcement, Skinner, [489 U. S.], at 620; Von Raab,
[489 U. S.], at 669. The `special needs' inquiry as delineated there has
not required especially great `importan[ce],' [520 U. S.], at 318, unless
one considers `the supervision of probationers,' or the `operation of a
government office,' Skinner, supra, at 620, to be especially `important.'
Under our precedents, if there was a proper governmental purpose other than
law enforcement, there was a `special need,' and the Fourth Amendment then
required the familiar balancing between that interest and the individual's
privacy interest." Chandler v. Miller, 520 U. S., at 325 (Rehnquist,
C. J., dissenting). |
| [102] | *fn18 Our
emphasis on this distinction should make it clear that, contrary to the
hyperbole in the dissent, we do not view these reporting requirements as
"clearly bad." See post, at 5, n. 3. Those requirements are simply
not in issue here. |
| [103] | *fn19 Accordingly,
the police organized a meeting with the staff of the police and hospital
laboratory staffs, as well as Nurse Brown, in which the police went over
the concept of a chain of custody system with the MUSC staff. App. 1052-1053. |
| [104] | *fn20 We
italicize those words lest our reasoning be misunderstood. See post, at
1-2 (Kennedy, J., concurring in judgment). In none of our previous special
needs cases have we upheld the collection of evidence for criminal law enforcement
purposes. Our essential point is the same as Justice Kennedy's -- the extensive
entanglement of law enforcement cannot be justified by reference to legitimate
needs. According to the dissent, the fact that MUSC performed tests prior
to the development of Policy M-7 should immunize any subsequent testing
policy despite the presence of a law enforcement purpose and extensive law
enforcement involvement. See post, at 8-10. To say that any therapeutic
purpose did not disappear is simply to miss the point. What matters is that
under the new policy developed by the solicitor's office and MUSC, law enforcement
involvement was the means by which that therapeutic purpose was to be met.
Policy M-7 was, at its core, predicated on the use of law enforcement. The
extensive involvement of law enforcement and the threat of prosecution were,
as respondents admitted, essential to the program's success. |
| [105] | *fn21 Accordingly,
this case differs from New York v. Burger, 482 U. S. 691 (1987), in which
the Court upheld a scheme in which police officers were used to carry out
administrative inspections of vehicle dismantling businesses. That case
involved an industry in which the expectation of privacy in commercial premises
was "particularly attenuated" given the extent to which the industry
in question was closely regulated. Id., at 700. More important for our purposes,
the Court relied on the "plain administrative purposes" of the
scheme to reject the contention that the statute was in fact "designed
to gather evidence to enable convictions under the penal laws . . . ."
Id., at 715. The discovery of evidence of other violations would have been
merely incidental to the purposes of the administrative search. In contrast,
in this case, the policy was specifically designed to gather evidence of
violations of penal laws. This case also differs from the handful of seizure
cases in which we have applied a balancing test to determine Fourth Amendment
reasonableness. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.
S. 444, 455 (1990); United States v. Martinez-Fuerte, 428 U. S. 543 (1976).
First, those cases involved roadblock seizures, rather than "the intrusive
search of the body or the home." See Indianapolis v. Edmond, 531 U.
S., at __-___ (slip op., at 7-8) (Rehnquist, C. J., dissenting); Martinez-Fuerte,
428 U. S., at 561 ("[W]e deal neither with searches nor with the sanctity
of private dwellings, ordinarily afforded the most stringent Fourth Amendment
protection"). Second, the Court explicitly distinguished the cases
dealing with checkpoints from those dealing with "special needs."
Sitz, 496 U. S., at 450. |
| [106] | *fn22 Thus,
under respondents' approach, any search to generate evidence for use by
the police in enforcing general criminal laws would be justified by reference
to the broad social benefits that those laws might bring about (or, put
another way, the social harms that they might prevent). |
| [107] | *fn23 It
is especially difficult to argue that the program here was designed simply
to save lives. Amici claim a near consensus in the medical community that
programs of the sort at issue, by discouraging women who use drugs from
seeking prenatal care, harm, rather than advance, the cause of prenatal
health. See Brief for American Medical Association as Amicus Curiae 6-22;
Brief for American Public Health Association et al. as Amici Curiae 17-21;
Brief for NARAL Foundation et al. as Amici Curiae 18-19. |
| [108] | *fn24 In
fact, some MUSC staff made this distinction themselves. See Pl. Exh. No.
14, Hulsey, 11-17-89, Coke Committee, 1-2 ("The use of medically indicated
tests for substance abuse, obtained in conventional manners, must be distinguished
from mandatory screening and collection of evidence using such methods as
chain of custody, etc. . . . The question is raised as to whether pediatricians
should function as law enforcement officials. While the reporting of criminal
activity to appropriate authorities may be required and/or ethically just,
the active pursuit of evidence to be used against individuals presenting
for medical care may not be proper"). The dissent, however, mischaracterizes
our opinion as holding that "material which a person voluntarily entrusts
to someone else cannot be given by that person to the police and used for
whatever evidence it may contain." Post, at 4. But, as we have noted
elsewhere, given the posture of the case, we must assume for purposes of
decision that the patients did not consent to the searches, and we leave
the question of consent for the Court of Appeals to determine. See n. 11,
supra. The dissent further argues that our holding "leaves law enforcement
officials entirely in the dark as to when they can use incriminating evidence
obtained from `trusted' sources." See post, at 5. With all due respect,
we disagree. We do not address a case in which doctors independently complied
with reporting requirements. Rather, as we point out above, in this case,
medical personnel used the criteria set out in n. 4, supra, to collect evidence
for law enforcement purposes, and law enforcement officers were extensively
involved in the initiation, design, and implementation of the program. In
such circumstances, the Fourth Amendment's general prohibition against nonconsensual,
warrantless, and suspicionless searches applies in the absence of consent.
We decline to accept the dissent's invitation to make a foray into dicta
and address other situations not before us. |
| [109] | *fn25 The
Court asserts that it is improper to "disaggregate the taking and testing
of the urine sample from the reporting of the results to the police,"
because "in our special needs cases, we have routinely treated urine
screens taken by state agents as searches within the meaning of the Fourth
Amendment." Ante, at 8, n. 9. But in all of those cases, the urine
was obtained involuntarily. See Chandler v. Miller, 520 U. S. 305 (1997);
Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995); Skinner v. Railway
Labor Executives' Assn., 489 U. S. 602 (1989); Treasury Employees v. Von
Raab, 489 U. S. 656 (1989). Where the taking of the urine sample is unconsented
(and thus a Fourth Amendment search), the subsequent testing and reporting
of the results to the police are obviously part of (or infected by) the
same search; but where, as here, the taking of the sample was not a Fourth
Amendment search, it is necessary to consider separately whether the testing
and reporting were. |
| [110] | *fn26 Hoffa
did say that the Fourth Amendment can be violated by "guileful as well
as by forcible intrusions into a constitutionally protected area."
385 U. S., at 301. The case it cited for that proposition, however, shows
what it meant: Gouled v. United States, 255 U. S. 298 (1921), found a Fourth
Amendment violation where a Government agent who had obtained access to
the defendant's office on pretext of a social visit carried away private
papers. "Guile" (rather than force) had been used to go beyond
the scope of the consented access to evidence. Whereas the search in Gouled
was invalidated, the search was approved in Lewis v. United States, 385
U. S. 206 (1966), where an equally guileful agent stayed within the bounds
of the access to defendant's home, carrying away only a package of drugs
that had been voluntarily provided. |
| [111] | *fn27 The
Court contends that its opinion does not leave law enforcement officials
in the dark as to when they can use incriminating evidence from trusted
sources, since it "do[es] not address a case in which doctors independently
complied with reporting requirements," ante, at 17, n. 24. I find it
hard to understand how not addressing that point fails to leave it enshrouded
in darkness -- unless the Court means that such reporting requirements are
clearly bad. (If voluntary betrayal of a trust in mere cooperation with
the police constitutes a Fourth Amendment search, surely betrayal of a trust
at the direction of the legislature must be.) But in any event, reporting
requirements are an infinitesimal part of the problem. What about a doctor's
-- or a spouse's -- voluntary provision of information to the police, without
the compulsion of a statute? |
| [112] | *fn28 The
Court contends that I am "mischaracteriz[ing]" its opinion, since
the Court is merely "assum[ing] for purposes of decision that the patients
did not consent to the searches, and [leaves] the question of consent for
the Court of Appeals to determine." Ante, at 17, n. 24. That is not
responsive. The "question of consent" that the Court leaves open
is whether the patients consented, not merely to the taking of the urine
samples, but to the drug testing in particular, and to the provision of
the results to the police. Consent to the taking of the samples alone --
or even to the taking of the samples plus the drug testing -- does not suffice.
The Court's contention that the question of the sufficiency of that more
limited consent is not before us because respondents did not raise it, see
ante, at 6, n. 6, is simply mistaken. Part II of respondents' brief, entitled
"The Petitioners consented to the searches," argues that "Petitioners
. . . freely and voluntarily . . . provided the urine samples"; that
"each of the Petitioners signed a consent to treatment form which authorized
the MUSC medical staff to conduct all necessary tests of those urine samples
-- including drug tests"; and that "[t]here is no precedent in
this Court's Fourth Amendment search and seizure jurisprudence which imposes
any . . . requirement that the searching agency inform the consenting party
that the results of the search will be turned over to law enforcement."
Brief for Respondent 38-39. The brief specifically takes issue with the
District Court's charge to the jury -- which the Court chooses to accept
as an unexaminable "given," see ante, at 6, n. 6 -- that "the
Respondents were required to show that the Petitioners consented to MUSC
disclosing the information to law enforcement." Brief for Respondent
39. In sum, I think it clear that the Court's disposition requires the holding
that violation of a relationship of trust constitutes a search. The opinion
itself implies that in its description of the issue left for the Court of
Appeals on remand, see ante, at 9, n. 11: whether "the tests were performed
without the informed consent of the patients," ante, at 9 (emphasis
added) -- informed, that is, that the urine would be tested for drugs and
that the results would be given to the police. I am happy, of course, to
accept the Court's illogical assurance that it intends no such holding,
and urge the Court of Appeals on remand to do the same. |
| [113] | *fn29 See,
e.g., Cal. Penal Code Ann. §11160 (West Supp. 2001); N. Y. Penal Law §265.25
(McKinney 2000); S. C. Code Ann. §16-3-1072 (Supp. 2000). |
| [114] | *fn30 See,
e.g., Cal. Penal Code Ann. §11160 (West Supp. 2001); Colo. Rev. Stat. §12-36-135
(2000). |
| [115] | *fn31 The
Court contends that I "would have us . . . resolve the issue of consent
in favor of respondents," whereas the Court's opinion "more prudent[ly]
allow[s] [the Court of Appeals] to resolve the legal and factual issues
in the first instance, and . . . express[es] no view on those issues."
Ante at 9, n. 11. That is not entirely so. The Court does not resolve the
factual issue of whether there was consent to the drug testing and to providing
the results to the police; and neither do I. But the Court does resolve
the legal issue of whether that consent was necessary, see ante, at 8-9,
16-18, n. 24; and so do I. Since the Court concludes it was necessary, the
factual inquiry is left for the Fourth Circuit on remand. Since I conclude
it was not necessary (and since no one contends that the taking of the urine
sample was unconsented), there is on my analysis no factual consent issue
remaining. |
| [116] | *fn32 The
Court believes that this finding "must be read in light of " the
District Court's comment that " `these searches were not done by the
medical university for independent purposes. . . . [T]he police came in
and there was an agreement reached that the positive screens would be shared
with the police. And then the screen is not done independent of police,
it's done in conjunction with the police and that implicates the Fourth
Amendment.' " Ante, at 7, n. 8, quoting App. 1247-1249. But all this
shows is that the explicit finding of medical purpose was not a finding
of exclusive medical purpose. As discussed later in text, the special-needs
doctrine contains no such exclusivity requirement. |
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