Petition for Writ of Certiorari — Ferguson v. Charleston

IN THE

OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1999

i ES

CRYSTAL M. FERGUSON, et al.,

Petitioners,

ee

THE CITY OF CHARLESTON, SOUTH CAROLINA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LYNN PALTROW

SUSAN FRIETSCHE

DAVID S. COHEN

Women’s Law Project

125 South Ninth Street, Suite 300

Philadelphia, Pennsylvania 19107

(215) 928-9801

DAVID RUDOVSKY

Kairys, Rudovsky, Epstein,

Messing & Rau

924 Cherry Street, Suite 500

Philadelphia, Pennsylvania 19107

(215) 925-4400

SETH KREIMER

3400 Chestnut Street

Philadelphia, Pennsylvania 19107

(215) 898-7447

PRISCILLA J. SMITH

Counsel of Record

SIMON HELLER

The Center for Reproductive

Law & Policy

120 Wall Street, 18th Floor

New York, New York 10005

(212) 514-5534

SUSAN DUNN

171 Church Street, Suite 160

Charleston, South Carolina 29401

(803) 722-6337

Counsel for Petitioners

QUESTION PRESENTED

1. Whether the “special needs” exception to the Fourth

Amendment’s warrant and probable cause requirements was

properly applied to a discretionary drug testing program targeting

hospital patients that was created and implemented with police and

prosecutors primarily for law enforcement purposes?

ii

LIST OF PAR

The Petitioners are Crystal M. Ferguson, Theresa Joseph,

Darlene M. Nicholson, Paula S. Hale, Ellen L. Knight, Patricia R.

Williams, Lori Griffin, Pamela Pear, Sandra Powell, and Laverne

Singleton.

The Respondents are the City of Charleston, South Carolina,

Dr. Harrison L. Peoples, Dr. Thomas C. Rowland, Jr., Dr. Stanley

C. Baker, Jr., Dr. Charles B. Hanna, Dr. Cotesworth P Fishburne,

Dr. E. Conyers O’Bryan, Melvyn Berlinsky, Patricia T. Smith,

M.J. Cooper, Herbert C. Granger, Robert C. Lake, Jr., Phillip D.

Sasser, Claudia W. Peoples, and Dr. Carroll V. Bing, Jr., in their

official capacities as Trustees of the Medical University of South

Carolina, Reuben Greenberg, Charles Molony Condon, David

Schwacke, Shirley Brown, R.N., Edgar O. Horger, III, M.D.,

Victor Del Bene, John Sanders, William B. Pittard, M.D., Roger

Newman, M.D., Harold Bivins, M.D., and Melesia Henry, R.N.,

personally and in their official capacities.

0 MRE

iii

TABLE OF CONTENTS

PAGE

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CONSTITUTIONAL AND STATUTORY

ee UE MUNI ic icssicscsnstncsscssis aiciins ]

SEATEDIENT OF THE CAGE occ. ccscccececcecccssssseeeccees. 2

tate OT LTCC A OR 2

Il. The Search Policy was Designed and Implemented

to Gather Evidence to Prosecute the Plaintiffs... 2

Ii. The Essential Elements of the Search i aissiteistesctsnceinsi es 5

Discretionary Criteria for ee 5

Lack of Search Warrants or Consent to Search................... 6

Unauthorized Disclosure of Medical Information ........... 7

scoters peg og ee nT OEE aA) 7

ahi i Niasats iil ila ligtinnssG he ssetteasascs ngs! oe. 8

IV. The Search Policy Was Not Effective in Improving

IN sates tadinse’s apicndlosesesasiiiees:,. cag. 10

iv

REASONS FOR GRANTING THE WRIT .........::cccccesesseeeeerees 10

I. By Applying the Special Needs Exception to the Discretionary

Searches of Persons Conducted in This Case for Law

Enforcement Purposes, the Fourth Circuit’s Decision

Conflicts with the Decisions of This Court.............:sesseee 12

A. The Special Needs Exception Has Never Before

Been Applied to a Search Policy Serving the Normal

Needs of Law Enforcement. ..............sssscsscssscerssesssences 13

B. The Exceptions to the Warrant and Probable Cause

Requirements for Law Enfcrcement Searches Relied on

By the Court Below Have No Application Here.......... 15

C. The “Special Needs” Exception Does Not Apply Here

Because the Need Articulated is Merely “Symbolic.” . 19

II. The Opinion of the Court Below Decides an Important

Federal Question That Has Not Been, But Should be

Decided By This Court And Conflicts with Decisions

from Several United States Courts of Appeals, All of

Which Have Rejected Application of the Special Needs

Exception to Search Policies with a Dual Purpose. ............ 20

III. Assuming, Arguendo, that the “Special Needs” Exception

Does Apply Here, the Court Below Erred By Applying the

Balancing Test Used in “Checkpoint Seizure” Cases. ........ 26

CAIN ss csiisestntnesinsiniiatisiiintpapnannisiteinnaimansiaedipiniiactinian 30

Vv

TABLE OF AUTHORITIES

Cases: Page

19 Solid Waste Department Mechanics v. City of

Albuquerque, 156 F.3d 1068 (10th Cir. PUI sisadhdpescdlanichaiasadecicek 19

Aubrey v. School Board of Lafayette Parish,

PE RA, BO iiiictciriikcieincteti oh a > & 23

Bluestein v. Depariment of Transportation,

SOS OME CN Gi vices 23

Burns v. Secretary, Dep't of Health and Human Services,

5 FOG 415 Cet. Ci FI iiskiisiceeennei ri 5

Chandler v. Miller, 520 U.S. 305 (1997) ..cccccccccccsceseees 12, 13, 19

Delaware v. Prouse, 440 U.S. 648 (1979) .o.ccccccccsssesesssesseseseeees 17

DesRoches v. Caprio, 156 F.3d 571 (4th Cir. 1998)........... 17, 26

Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1990).......ccccecce000. 15, 28

Dunn v. White, 880 F.2d 1188 (10th Cir. 1989) .......cccccccescccseeee 24

Ferguson v. City of Charleston, 186 F.3d 469

RR PE ear abn icintinicdic ee eon passim

Ferguson v. City of Charleston, No. 2:93-2624-2

CERI I TO ei eatin ccs ti 4

Flippo v. West Virginia, -- U.S. -, 120 S. Ct. 7 (1999).......0.0+. 12

Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993)......ccccccecccseee. 24, 25

Griffin v. Wisconsin, 483 U.S. 868 (1987) ........ccccccseceeseeee. passim

vi

International Brotherhood of Electrical Workers v.

United States Nuclear Regulatory Commission,

SEG FAG SEE CHU, FOP ccescssctcsnisiicctinnacstnatiintatuictin wicnanpiiih 23

Latta v. Fitzharris, 521 F.2d 246 (9th Cir.),

Cart. Gemhad, 423 GOT CAFS) ncinncsistccsitstinsssdckessamsenibaneabasicn 18

Michigan Department of State Police v. Sitz, —

GIG AG (RFD) scccriccsnsinrccestntpiisissiiritaanhsiiilabuiuidaiiaaaaiidaba passim

Michigan v. Clifford, 464 U.S. 287 (1984).......ccccecessseeees 21, 22

Morissey v. Brewer, 408 U.S. 471 (1972) ......ccccccccesssscseecenesseeee 24

National Treasury Employees Union v. Von Raab,

£OD WB. GG (FTI) cncscenaresrcstnssnsseinsierstanteiiainiaaecaduaiiiaiain passim

Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998)............ 25

New Jersey v. T.L.O., 469 U.S. 325 (1985) ......scsscscsssseeeeees passim

New York v. Burger, 482 U.S. 691 (1987)............csccsssscsssseesseees 22

O'Connor v. Ortega, 480 U.S. 709 (1987)........ccccsccscseeseeeseeeees 23

Penn. Bd. of Parole v. Scott, 524 U.S. 357,

EIS B. Co, BONG (IGG Gp nines isersnissivinstiesisiniiantinidaaniecniainntiiaedbaiiinn 14

Penny v. Kennedy, 915 F.2d 1065 (6th Cir. 1990) ............cssc000 23

Planned paseo v. Casey, 505 U.S. 833 (1992)........... 15, 28

Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995) .......ccsccsssssesseseees 24

Rochin v. California, 342 U.S. 165 (1952)......scccssssesssssseeseeeees 27

Roe v. Bosco, 193 F.3d 72 (2d Cir. 1999) ........sccssssssssseseees TD

Schaill v. Tippecanoe County School Corp.,

964 F268 1SOD CI CAs. BGG) vn nesicscconissincessteanenisnsnniasnichiesiion 23

Vii

-

_ Schneckloth v. Bustamonte, 412 U.S. 218 (1973) sesso... 12

Shea v. Smith, 966 F.2d 127 (3d Cir. ID shischsiis da scemsttbiiaciiats 24

Skinner v. Railway Labor Executives’ Association,

bth a asa cata: NE Re CE OR passim

Stigile v. Clinton, 110 F.3d 801 (D.C. Cir. SOT bickctsndoniannsiis 23

Fave. Cie; DOSE GANT icciiiiic 27

Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998)... 23

Thomson v. Marsh, 884 F.2d 113 (4th Cir. PE itiinicinisicein 23

Transport Workers’ Union v. Southeastern Pennsylvania

Transportation Authority, 884 F.2d 709 (3d Cir. 1988)... 23

Turner v. Dammon, 848 F.2d 440 Ls &, | 17

United States v. Cardona, 903 F.2d 60 (ist Cir. 1990) 200... 24

United States v. Colyer, 878 F.2d 469 (D.C. Cir. 1989)..0.0....... 25

United States v. Giannetta, 909 F.2d 571 (Ist Cir. 1990) ee inna 24

United States v. Hill, 967 F.2d 902 (3d Cir. SOUS vilinieilasisnonics 24

United States v. Jarrad, 754 F.2d 145] (9th Cir. 1985) 00000000... 18

United States v. Jones, 152 F.3d 680 (7th Cir. 1998)... 24

United States v. Lewis, 71 F.3d 358 (10th Cir. 1995)... 24

United States v. Martinez-Fuerte, 428 U.S. 543 SPI iicstinics 16

United States v. Ortiz, 422 U.S. 891 Se abit tinilobsisichhinasidaie 16

United States v. Payne, 181 F.3d 781 (6th Cir. 1999)... 24

Vili

United States v. Richardson, 849 F.2d 439 (9th Cir. 1988) ...... 24

United States v. United States Gypsum, 333 U.S. 364 (1948)..... 5

United States v. Vincent, 167 F.3d 428 (8th Cir. 1999)............. 24

United States v. Ward, 131 F.3d 335 (3d Cir. 1997)... eee 24

United Teachers of New Orleans v. Orleans Parish

School Board, 142 F.3d 853 (Sth Cir. 1998)... passim

Vernonia School District v. Acton,

PED Ores CP CNPP csicntnacnseneesninetnaieetcccbebisoniesnsenesan 13, 14, 23, 28

Wildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993)... 15

Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987)........:ccsceceseees 17

Willner v. Thornburgh, 928 F.2d 1185 (D.C. Cir. 1991)........... 23

Yin v. State of California, 95 F.3d 864 (9th Cir. 1996)....... 15, 28

Constitutional and Statutory Provisions:

GRE Osis eines 1

MUSE 6196 occ: ed eee eae -

SRD A iii 2

mUsc 4c OUST OES PAE ORE, 2

Ce i sic eccinccannencuuaan —

i ME ich cicncenel cea ocdeiona 21, 26, 29

Ee I OR oa oscis sist sssscicsccccsiearsieancuaudsaane 8

i Conlin Bilin, BI OI iicsncsisensenssniccniecsbisientsteiiosiniaiitiiien 8

ix

S.C. Code Ann. § 44-53-44 oo......cccsssssssssesssssssssssssssseseeeesessescccee 8

U.S. Const. Amendiment IV............ssccccsssscseesssseesecouseseseesoeeeses...... l

Miscellaneous:

Ira Chasnoff, M.D., Harvey J. Landress, A.C.S.W.,

Mark E. Barrett, Ph.D., “The Prevalence of Ilicit-Drug or

Alcohol Use During Pregnancy and Discrepancies in

Mandatory Reporting in Pinellas County, Florida,”

322 New Eng. J. of Med. 1202 (Apr. 26, i icdeiiicaliatiatiaeiiat, 18

]

Petitioners, ten women whose urine was searched for evidence

of drug use when they sought obstetrical care at the Medical

University of South Carolina (“MUSC”) under a policy designed

to gather evidence of criminal activity, respectfully pray that a writ

of certiorari issue to review the judgment and decision of the

United States Court of Appeals for the Fourth Circuit entered on

July 13, 1999, to the extent that it denied petitioners’ appeal of

their claim that the drug testing violated their rights under the

Fourth Amendment to the United States Constitution.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit is reported at 186 F.3d 469. The opinion is set forth

in the Appendix (App. 3). The only written opinion of the United

States District Court for the District of South Carolina is

unreported and is set forth in the Appendix (App. 36).

JURISDICTION

The opinion of the United States Court of Appeals for the

Fourth Circuit was entered on July 13, 1999. A petition for

rehearing en banc was denied by an 8-5 vote on September 2,

1999. Jurisdiction in this Court exists under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

I. U.S. Const. amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

I. Introduction

Petitioners, nine African-American women and one white

woman, brought this action under 42 U.S.C. § 1983 challenging

Respondents’ policy of warrantless and non-consensual drug

testing for criminal investigatory purposes (“the Search Policy”) of

a virtually all-black group of indigent pregnant women who sought

obstetrical care at MUSC, the public hospital located in

Charleston, South Carolina.! The Search Policy was developed

and implemented jointly by members of an interagency group

consisting of personnel from MUSC, the City of Charleston Police

Department (““CCPD”), and the Charleston County Solicitor’s

Office,? and applied only at the one hospital in Charleston whose

patient population was predominantly African-American. An

“initial and continuing focus of the Search Policy” was on arrest

and prosecution of the targeted group, Ferguson v. City of

Charleston, 186 F.3d 469, 484 (4th Cir. 1999) (Blake, J.,

dissenting); search results were routinely used to arrest and

prosecute women who tested positive for cocaine and, in some

cases, the threat of arrest and prosecution was used as a

mechanism to coerce women into drug treatment programs, which

Respondents knew to be inadequate.

II. The Search Policy was Designed and Implemented to

Gather Evidence to Prosecute the Petitioners.

The record establishes that the Search Policy was designed and

implemented to collect evidence in support of criminal

investigations. Indeed, Defendant Shirley Brown, R.N. (“Nurse

Brown”), a case manager in the Obstetrics Department at MUSC,

heard a report about arrests of pregnant women under the South

Carolina child abuse statute for drug use during pregnancy. Nurse

Brown mentioned the report and the possibility of participating in

| jurisdiction over this action was proper in the district court pursuant to 28

U.S.C. §§ 1331 and 134Xa).

2 In South Carolina, the Solicitor is the local prosecuting attorney.

3

such a program to MUSC’s General Counsel Joe Good when she

ran into him on her way into the Hospital. Brown Tr. at 4:10-5:17

(App. 76-77). As a result of this conversation, on August 23,

1989, Mir. Good wrote to then-Charleston County Solicitor Charles

Condon to inquire as follows:

I read with great interest in Saturday’s newspaper

accounts of our good friend, the Solicitor for the

Thirteenth Judicial Circuit, prosecuting mothers

who gave birth to children who tested positive for

drugs...

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.

PX 2 (App. 67) (emphasis added).3 On August 31, 1989, Solicitor

Condon wrote to Charleston Police Chief Reuben Greenberg to ask

him to consider co-chairing with Solicitor Condon a task force

consisting of members from MUSC, the Solicitor’s Office and the

CCPD. The purpose of the task force was “to consider possible

prosecution of the mothers of drug affected babies... .” PX 6

(App. 69).

As a result, a joint interagency task force was formed,

consisting of members from MUSC, the Solicitor's Office and

CCPD. Trial Tr. 12/17/96 at 17:18 — 20:24, 5:13-16 (Condon),4

Sanders Tr. 102:3 — 103:14 (App. 105-106); Newman Tr. 180:14-

18 (App. (93); Cornely Tr. 321:25 — 322:7 (App. 91); Trial Tr.

12/17/96 «at 5:13-16 (Condon); see also, e.g., PX 6 (App. 69-71).

The Search Policy was first memorialized by law enforcement

3 Plaintiffs” Exhibits will be cited as “PX —”; Joint Exhibits as “JX —.” When

included in the Appendix to this Petition, citations also indicate the page of

the Appendlix on which the Exhibit appears as “App. —”

* Citations tto the trial transcript appear as “Trial Tr.” with the date, page and

line numberrs, and witness’s name following, unless the cited portions of the

transcript arre contained in the Appendix to this Petition. In the latter case,

citations are to the witness’s name, page and line number and page of the

Appendix om which the cited transcript appears.

4

personnel, not MUSC officials, in a series of separate internal

memoranda setting forth the guidelines by which women would be

selected for testing and tested for drugs and by which a chain of

custody for the evidence would be maintained and positive drug

tests would be reported to the police.> See, e.g., IX 1 (10/12/89

memo written by CCPD Captain) (App. 49); JX 15 (10/17/89

memo written by Solicitor) (App. 64). The 10/12/89 operational

guidelines issued by CCPD refer to the positive drug tests as

“probable cause” for arrest of the mother. JX 1 (App. 49). A

December 19, 1989 letter from Mr. Good explaining the MUSC

program states that it was developed by MUSC “/a/t the

suggestion of law enforcement and the solicitor’s office... ,” PX

28 (emphasis added) (App. 72), and MUSC personnel were to

maintain a formal “chain of custody” for the urine samples

collected pursuant to the Search Policy, see JX 2 at 2 (App. 54),

but not for urine specimens taken for purely medical reasons.

Accordingly, the district court instructed the jury:

But what makes this case unusual and what brings

it within the coverage of the Fourth Amendment is

the fact that you have law enforcement and

medical service people acting together.

It is the fact that the so-called search, the taking of

the urine sample and the testing of it for cocaine,

was to be used not only for medical diagnosis, but

if it was positive it was also going to be used for

police and prosecutorial purposes.

Transcript of Jury Charge 17:22-18:4 (App. 47). As the dissent

below wrote:

Preliminarily, assuming that concern for the health

of fetuses being carried by pregnant women using

5 When the Search Policy was first implemented, pregnant women who tested

positive for cocaine were arrested. Later, pregnant women were offered an

opportunity to avoid arrest by participating in “treatment” programs.

Ferguson v. City of Charleston, No. 2:93-2624-2 (D.S.C. Sept. 29, 1997)

(App. 36).

Ser RCT erm |

5

crack cocaine was a motivating force in the

development of the MUSC Search Policy, it

nevertheless is clear from the record that an initial

and continuing focus of the Search Policy was on

the arrest and prosecution of drug-abusing

mothers, either before or after they had given birth

to the children presumably affected by the cocaine

use.

Ferguson, 186 F.3d at 484 (footnote omitted) (Blake, J.,

dissenting); id. (“The prosecutorial purpose of the Search Policy

and the substantial involvement of law enforcement officials from

the very beginning of its implementation” were clear).

_ TIL The Essential Elements of the Search Policy

Discretionary Criteria for Drug Testing: Collecting urine

and performing urine drug screens for cocaine was the first step

leading to an arrest under the Search Policy. See JX 1 (App. 49);

JX 2 (App. 53). However, only a targeted group of women --

those who met certain criteria -- were tested. JX 2 at | (App. 53-

54); Brown Tr. 28:17 — 30:15 (App. 79-81). These criteria

included such discretionary criteria as “inadequate prenatal care,”

women with “no prenatal care,” and women with “[p]reviously

known drug or alcohol abuse.” /d.; Newman Tr. 220-227 (App.

94-104). Eventually, neonatologists were also required to test

infants whose mothers met the criteria. Trial Tr. 11/25/96 at 41:2-

17 (Patrick). As the Medical Director of the Neonatal Intensive

Care Unit testified, testing was not being done for medical reasons,

° This overwhelming contemporaneous documentary evidence, evidence that

cannot be altered by failed memory, wishful thinking or political spin, was

improperly overlooked by the majority below in favor of self-serving

testimony by the Respondents providing post hoc rationalizations for the

Search Policy. Ferguson, 186 F.3d at 475 n.3. Such self-serving testimony is

simply not as reliable as contemporaneous documentary evidence. See

United States v. United States Gypsum, 333 U.S. 364, 396 (1948) (“[W]here

such testimony is in conflict with contemporaneous documents we can give it

little weight.”); Burns v. Secretary, Dep't of Health and Human Services, 3

F.3d 415, 417 (Fed. Cir. 1993) (“Supreme Court counsels that oral testimony

in conflict with contemporaneous documentary evidence deserves little

weight.”).

6

but solely for purposes of the Search Policy. Jd. (before the Search

Policy, infants were tested for medical reasons, but after the Search

Policy was instituted, infants were being tested based solely on the

policy criteria); see also Chasnoff Tr. 15-17, 42 (App. 84-88, 88-

89) (discretionary criteria “medically senseless’’).

Lack of Search Warrants or Consent to Search: It is

undisputed that no search warrants or court orders were obtained

before women’s urine was collected and searched for drugs.

Transcript of Jan. 6, 1997 Jury Charge at 18:15 (“Jury Charge”)

(App. 48). No specific consent was obtained from the Peitioners

for performing a search of their urine, nor were they given any

indication that the hospital’s confidentiality policy, pursuant to

which “medical records and all communication pertaining to

[patient] care are . . . treated as confidential,” see PX 105 (App.

75), did not apply to urine test results. See, e.g., Trial Tr. 11/20/96

at 27 (Griffin); Trial Tr. 1 1/25/96 at 149 (Powell); Trial Tr.

11/22/96 at 121-22, 139 (Knight); Trial Tr. 11/20/96 at 71

(Singleton).

As the district court correctly held, MUSC’s two general

consent forms, were “not sufficient consent to warrant a search

where the search information is furnished to law enforcement

officers.” Trial Tr. 1/6/97 at 21 (Jury Charge). Even MUSC’s

General Counsel Joe Good admitted that he was concermed that the

consent forms were inadequate. Trial Tr. 12/16/96 at 202:6-9

(Good). All the other forms related to the Search Policy were

given to the woman only after she had already been tested for

drugs and did not seek either the patient’s consent or authorization.

For example, “Solicitor’s Letters” were only shown to patients

after their urine was tested for drugs, i.e., after the search was

conducted. See, e.g., Trial Tr. 11/21-22/96 at 50:7-14 (Brown);

Trial Tr. 12/10/96 at 279:24-280:7 (Newman); see also JXs 5-7

(letters stating “[dJuring your recent examination you tested

positive for drugs”). Similarly, Respondents’ claim that all

patients receiving prenatal care at MUSC were shown the “To Our

Patients” letter, X 10, before they were tested for cocaine, Trial

Tr. 11/21-22/96 at 199-202 (Brown), Trial Tr. 12/10/96 at 242-243

(Newman), is belied by the letter itself. JX 10 (stating that if “we

continue to detect evidence of drug abuse”) (emphasis added).

7

Nursing notes for the only plaintiff whose medical record indicates

that she was shown this document at all confirm this. PX 280 at

BRO-WN-1415 (noting that Plaintiff Pamela Pear was “given

letter from the Dept. of [ob/gyn]” after testing positive).

Unauthorized Disclosure of Medical Information: Positive

results for cocaine were recorded in the patient’s medical chart, as

well as on Rolodex cards that Nurse Brown kept in her own office.

Trial Tr. 11/21/96 at 59:6-15 (Brown). She provided this

information to the Solicitor's Office and, in some circumstances, to

the CCPD; Solicitor’s Office employees actually had access to the

Rolodex and the files in Nurse Brown’s Office. Trial Tr. 11/21-

22/96 at 60:7 — 61:18 (Brown); Trial Tr. 12/10/96 at 193

(Newman); Trial Tr. 12/6/96 at 296:21 — 297:1 (Legare); Trial Tr.

12/16/96 at 216:25 — 217:18 (Good); JX 1 at 2. Neither the

Solicitor’s Office nor the CCPD had a search warrant, subpoena or

court order for medical information it obtained in this manner.

Trial Tr. 12/6/96 at 312:25-313:18 (Legare). Moreover, a copy of

the patient’s discharge summary, containing other confidential

medical information such as the patient’s medical history,

incidence of sexually transmitted diseases, sterilization procedures

done while in the hospital, and HIV Status, was disclosed to the

CCPD officer who came to the hospital to arrest the patient. Trial

Tr. 12/6/96 at 217:6-218:6 (Good).

Patients testing positive were also tracked as part of the

Suspected Child Abuse and Neglect (“SCAN”) meetings at which

personnel from the hospital, the Department of Social Services, the

Solicitor’s Office, and CCPD discussed suspected child abuse.

Confidential medical information on the patients to be discussed,

such as HIV status and information on tuba! ligations, was sent to

all members of the SCAN team, including personnel from the

Solicitor’s Office and CCPD. Trial Tr. 12/9/96 at 125-126

(Hildebrand); PX 228-E; PX 178. Information on each of the

Petitioners was disclosed without their consent and without a

warrant.

Grounds for Arrest: Under the Search Policy, women who

tested positive for cocaine could be arrested or threatened with

arrest on the basis of their urine tests for the crimes of possession

of drugs, child neglect, or distribution of drugs to a person under

8

eighteen, depending upon the point in pregnancy at which their

cocaine use was discovered.’ JX 2 at 11 (App. 62-63). The CCPD

had never before applied these statutes to address a pregnant

woman's drug use, Trial Tr. 11/26/96 at 13:19-25 (Roberts), nor

was any male patient ever arrested by CCPD and charged with

drug possession based solely on a positive urine drug screen. Jd. at

50:6-13. The Search Policy applied at all stages of pregnancy,

both before and after fetal viability. See, e.g., JX 2 at 9-12 (App.

60-63). Indeed, plaintiff Theresa Joseph was confronted by Nurse

Brown and threatened under the Search Policy when she was only

sixteen weeks pregnant. PX 277.

Arrests: As Respondents admit, from October 1989 until at

least January 1990, women who tested positive for cocaine at the

time they gave birth were arrested based on that single positive

drug test. See, e.g., JX 3. Nurse Brown would call CCPD, file a

complaint, inform them when a patient who had tested positive

was about to leave the hospital and help coordinate the woman’s

in-hospital arrest. Trial Tr. 11/21-22/96 at 90-91 (Brown); Trial

Tr. 11/26/96 at 23-24 (Roberts). These women received no

referral for drug treatment and no opportunity to obtain treatment

as an “alternative” to arrest. Trial Tr. 11/21-22/96 at 37-40

(Brown); see also, e.g., Trial Tr. 11/25/96 at 152:2-5 (Powell)

(“And I asked, please, what could I do to stop this or could you

help me, I mean, because, you know, what is going on? And then

she just said you will be locked up.”).8 Even after these women

were arrested, no one associated with the Search Policy provided

them with any information about treatment.?

7 See S.C. Code Ann. § 44-53-370 (possession of cocaine misdemeanor

carries a maximum sentence of two years for first offense); S.C. Code Ann. §

20-7-50 (criminal child neglect felony carries maximum penalty of ten years);

S.C. Code Ann. § 44-53-440 (distribution to persons under eighteen carries

maximum sentence of twenty years).

8 Medical records indicate that Ms. Powell repeatedly requested help in

obtaining drug treatment. PX 281, 01-M-12-13 (patient “re-emphasizes her

desire for drug treatment”); id., 01-M-13 (patient “desires to be free of

addiction to cocaine “and “was accepting of information”).

9 Although defendant Condon insisted at trial that the Search Policy was

always intended to provide “amnesty,” see generally Trial Tr. 12/17/96

9

Women subject to arrest were, in some instances, denied the

Opportunity to change out of their hospital gowns or to make a

phone call to family members to make arrangements for care of

their children. E.g., Trial Tr. 11/20/96 at 61:1 1-14, 68:22-24,

69:5-8 (Singleton); Trial Tr. 11/25/96 at 152:2-11; 157:4 (Powell);

Trial Tr. 11/22/96 at 124:20 — 125:17 (Knight); Trial Tr. 11/20/96

at 11:9 — 12:4 (Griffin). Some women were arrested while still

bleeding, weak and in pain from having just given birth. E.g.,

Trial Tr. 11/20/96 at 68 - 69:8 (Singleton); Trial Tr. 11/25/96 at

153:7-20, 155:8-16 (Powell) (“I pretty much couldn’t move on my

own”); Trial Tr. 11/22/96 at 125, 136:10-13 (Knight) (arrested

while bleeding heavily vaginally from her first vaginal childbirth;

and still vomiting). Some women were put in handcuffs that were

attached to a chain that went around their belly. £.g., Trial Tr.

11/20/96 at 9:12-25 (Griffin). Some were also put in leg shackles

when they were taken into custody. £.g., Trial Tr. 11/20/96 at 62

(Singleton); Trial Tr. 11/20/96 at 8 — 22 (Griffin); Trial Tr.

11/25/96 at 190:2-6 (Ferguson). A blanket or sheet would be

placed over the woman and she would be wheeled out of the

hospital to a waiting police car. E.g., Trial Tr. 11/20/96 at 62-64

(Singleton); Trial Tr. 11/25/96 at 154 — 156 (Powell); Trial Tr.

11/20/96 at 10 (Griffin); Trial Tr. 11/22/96 at 126 (Knight).

Pregnant women who tested positive for cocaine during

prenatal care visits or hospitalizations before delivery were

supposed to be given an opportunity to obtain treatment before

they were arrested, JX 2 (App. 53), while those testing positive at

delivery were simply arrested. Even some women in the former

category, though, like Plaintiff Lori Griffin, were arrested with no

offer of a treatment alternative. Trial Tr. 1 1/20/96 at 10 (Griffin).

(Condon), in August 1989 he described the policy as regarding “the

prosecution of the mothers.” PX 6 at 1 (App. 69); see also Trial Tr. 12/5/96

at 28:1-3 (Horger) (confirming that “amnesty is a term that was never used in

any of the initial meetings concerning the policy”).

10

IV. The Search Policy Was Not Effective in Improving Fetal

Health.

The Search Policy did not reduce cocaine use, improve

pregnancy outcome, or increase the number of women successfully

completing drug treatment. Indeed, if the Search Policy were

responsible for a decrease in cocaine-exposed infants, one would

expect to see an increase in cocaine-exposed infants after the

Search Policy was terminated, but no such increase took place.

Trial Tr. 11/25/96 at 49:22-50:21 (Patrick). Moreover, Martha

Jessup, Associate Professor of Nursing at the University of

California at San Francisco, a specialist in the treatment of

pregnant women and substance abuse, testified that numerous

studies have shown that punitive programs drive women away

from prenatal care and treatment programs, and do not improve

pregnancy outcomes for either mother or child. Trial Tr. 12/9/96 at

89:11-97:2, 115-118 (Jessup).

V. Procedural Background.

Petitioners filed suit in 1993 for damages and injunctive relief

claiming inter alia that urine drug tests performed pursuant to the

Search Policy constituted warrantless searches in violation of the

Fourth Amendment. After a six week trial, the trial court

submitted Petitioners’ Fourth Amendment claim to the jury which

found against the Petitioners. After inviting Petitioners to file a

Rule 50(b) motion on the Fourth Amendment claim, the court then

denied that motion. Petitioners appealed this claim, as well as

three others, to the United States Court of Appeals for the Fourth

Circuit which affirmed the Judgment of the trial court by a 2-1

vote. Petitioners’ petition for rehearing en banc was denied by the

court below by an 8-5 vote.

REASONS FOR GRANTING THE WRIT

This case concerns the scope of the “special needs” exception

to the warrant and individualized suspicion requirements of the

Fourth Amendment. At stake is the continued vitality of

fundamental Fourth Amendment protections where government is

involved in traditional enforcement of its duly enacted criminal

laws pursuant to policies that target alleged law breakers--in this

1]

case pregnant women--for searches as a means of obtaining

evidence for arrests and prosecution. The Fourth Circuit held that

the warrant and cause requirements of the Fourth Amendment are

not applicable where the government can articulate a non-law

enforcement rationale for the program or policy, even where the

policy implements the state’s criminal law by traditional means of

searches, arrests and prosecutions. We submit that this radical

extension of the “special needs” doctrine is entirely inconsistent

with this Court's Fourth Amendment jurisprudence and, if allowed

to stand, threatens the very integrity of the Fourth Amendment.

The decision by the Fourth Circuit would permit law

enforcement or other governmental officers to engage in searches

as a means of gaining evidence for arrests and prosecutions,

without a warrant or individualized suspicion, so long as the

government can present a health or safety reason for its actions.

But nearly every application of the criminal law serves some

health or safety purpose. Under the novel theory espoused by the

Fourth Circuit any such articulation could be the basis of a claim

for the “special needs” exemption. This Court’s cases, however,

permit “special needs” analysis only where the law enforcement

purpose (if any) is clearly secondary or incidental to the non-law

enforcement purpose. Thus, except in the case of probationers,

this Court has never approved the application of the “special

needs” doctrine where the state conducts the search as a direct

predicate to arrest and prosecution.

Here, the record plainly establishes that the Search Policy and

program was to be directly effectuated by means of the arrest and

prosecution of the individuals who were searched. In these

circumstances, as a Fourth Amendment issue, it matters not that

the state may have had the safety and health of the pregnant

mother or the fetus in mind. Once it implements this policy by

normal law enforcement means, it must comply with the warrant

and cause components of the Fourth Amendment. As the Fifth

Circuit stated in United Teachers v. Orleans Parish School Board,

142 F.3d 853, 857 (5th Cir. 1998):

special needs are just that, special, an exception to

the command of the Fourth Amendment. It cannot

12

be the case that a state’s preference for means of

detection is enough to waive off the protections of

privacy afforded by insisting upon individualized

suspicion. It is true that the principles we apply

are not absolute in their restraint of government,

but it is equally true that they do not kneel to the

convenience of government, or aliow their

teaching to be so lightly slipped past.

1. By Applying the Special Needs Exception to the

Discretionary Searches of Persons Conducted in This Case

for Law Enforcement Purposes, the Fourth Circuit’s

Decision Conflicts with the Decisions of This Court.

It is well-settled that a search conducted without a warrant

issued upon probable cause, like the urine drug screens at issue in ik

this case, is “per se unreasonable .. . subject only to a few

specifically established and well-delineated exceptions.”

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citations

omitted); see also Flippo v. West Virginia, 120 S. Ct. 7 (1999). It

is equally well-settled that urine drug screens are searches of the

person governed by the Fourth Amendment. Chandler v. Miller,

520 U.S. 305, 313 (1997). The only exception asserted by the

Respondents in this case was consent. Accordingly, the district

court correctly instructed the jury that the searches here were

“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.” Tr. Jury Charge at 18:20-23 (App. 48).

Rather than examining whether the Petitioners actually

provided valid consent to the urine drug screens, however, the

Fourth Circuit held that these searches were “reasonable” under the

“special needs” exception to the warrant and probable cause

requirements of the Fourth Amendment, even though the Search

Policy was specifically designed to gather evidence to be used

against the Petitioners for criminal purposes. See supra at 2-4.

The court below ignored that the Search Policy expressly served

the normal needs of law enforcement by prescribing searches for

evidence of crimes and delineating standards for maintaining a

13

proper chain of custody. The court reasoned that “the public

health problems associated with maternal cocaine use created a

special need beyond normal law enforcement goals; the method

chosen to address that need... effectively advanced the public

interest; and the intrusion suffered by Appellants was minimal.”

Ferguson, 186 F.3d at 479.

A. The Special Needs Exception Has Never Before

Been Applied to a Search Policy Serving the

Normal Needs of Law Enforcement.

Application of the exception here conflicts with this Court’s

decisions, which have repeatedly limited the special needs

exception to administrative searches that were designed for other

than law enforcement purposes, and could not be implemented by

traditional law enforcement means. See Chandler v. Miller, 520

U.S. 305, 314 (1997) (“When such ‘special needs’ — concerns

other than crime detection — are alleged in justification of a Fourth

Amendment instrusion, courts must undertake a context-specific

inquiry.”) (emphasis added); Vernonia Sch, Dist. v. Acton, 515

U.S. 646, 651-53 (1995) (applying exception where results of

search available only to school Officials); National Treasury

Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989)

(applying exception where search serves “special governmental

needs, beyond the normal need Jor law enforcement”) (emphasis

added); Skinner v. Railway Labor Executives’ Ass n, 489 U.S. 602,

621 & n.5 (1989) (“While [the provision permitting drug testing of

railroad personnel] might be read broadly to authorize the release

of biological samples to law enforcement authorities, the record

does not disclose that it was intended to be, or actually has been so

used.”); New Jersey v. T.L.O., 469 U.S. 325, 356 (1985) (Brennan,

J., concurring in relevant part) (In a search conducted under

promulgated regulations, the state may be able to avoid the Fourth

Amendment if it can establish a “special governmental interest

beyond the need merely to apprehend lawbreakers.”) (emphasis

added). !0

10 This Court looks to four factors to determine whether the special needs

exception is applicable to a given search: 1) there must be a truly special

need that is not merely symbolic, see Chandler v. Miller, 520 U.S. at 322

i4 4

This Court has stressed that results from the searches in

question in the “special needs” cases could not be, or simply were

not, used in criminal prosecution. For example, in Von Raab, this .

Court emphasized that the test results in the case could “not be

used in a criminal prosecution of the employee without the

employee’s consent.” Von Raab, 489 U.S. at 666. Similarly, in

Skinner, where the respondents had claimed that the test results

might be used by the police, see 489 U.S. at 621 n.5, the Court

noted that nothing in the record indicated that the government

would use the testing results for any purpose other than

employment purposes. /d. at 626 n.7.

Indeed, in none of the “special needs” cases cited by the

Fourth Circuit were the results of the searches intended for use in

criminal prosecutions.'! See, e.g., Von Raab, 489 U.S. at 666

~ (applying special needs exception to program of drug testing of

certain employees in sensitive positions by United States Customs

Service where “test results may not be used in a criminal

prosecution of the employee without the employee’s consent”);

Acton, 515 U.S. at 651; Skinner, 489 U.S. at 621 n.5 (record did

not disclose that results of drug testing of railroad personnel was

(1997); 2) that need must be beyond the normai need for law enforcement,

see, e.g., Von Raab, 489 U.S. at 665; 3) the need must make the warrant

requirement impracticable, see, e.g., Skinner, 489 U.S. at 624; and 4) and the

need must make the probable cause requirement impracticable, see, e.g., id. at

631.

'! In only one case has this Court sanctioned the application of the special

needs exception for law enforcement purposes, and that case involved

searches of people with specially limited constitutional protections. In

Griffin v. Wisconsin, 483 U.S. 868 (1987), this Court allowed a warrantless

search by a probation officer at the home of a criminal defendant on

probation. The search fell within the “special needs” exception even though

the results of the search were used for law enforcement purposes only

because probationers have lesser constitutional protections than the public at

large. See id. at 875 (previous finding of guilt of probationer permitted

impingement on privacy that would not be constitutional if applied to the

public at large); see also Penn. Bd. of Parole v. Scott, 524 U.S. 357, 118 S.

Ct. 2014, 2021 (1998) (exclusionary rule inapplicable in parole revocation

proceedings); Ferguson, 186 F.3d at 486 (Blake, J., dissenting). Although a

“special needs” case, Griffin is limited to the special circumstance of those

with limited constitutional protections, a situation clearly not present here.

, a i a

15

“intended to be, or actually has been, [released to law enforcement

authorities]”); 7.L.0., 469 U.S. 325 (investigative activities of

school officials); Yin v. State of California, 95 F.3d 864, 869, 873

(9th Cir. 1996) (state employee required to submit to medical

examination solely to determine her ability to perform normal

work duties); Wildauer v. Frederick County, 993 F.2d 369, 372

(4th Cir. 1993) (“investigative home visits are not subject to the

same scrutiny as searches in the criminal context” ; Dimeo v.

Griffin, 943 F.2d 679, 685 (7th Cir. 1990) (en banc) (jockeys and

other participants in horse racing required to undergo random drug

tests as condition of occupational licensure); see also United

Teachers, 142 F.3d at 856 (“There are exceptions based on ‘special

needs, beyond the normal need for law enforcement.’”) (quoting

Skinner, 489 U.S. at 619). See generally Ferguson v. City of

Charleston, 186 F.3d at 486-87 (Blake, J ., dissenting) (discussing

cases).

B. The Exceptions to the Warrant and Probable

Cause Requirements for Law Enforcement

Searches Relied on By the Court Below Have No

Application Here.

The era is past in which pregnant women were regarded as

peculiarly subject to the authority of the state because of their

status as child-bearers. See generally Planned Parenthood v.

Casey, 505 U.S. 833, 896-98 (1992); id. at 896 (“The effect of

State regulation [with respect to a woman’s pregnancy] ona

woman’s protected liberty is doubly deserving of scrutiny . . . , as

the State has touched not only upon the private sphere of the

family but upon the very bodily integrity of the pregnant

woman.”).!2 Yet the Fourth Circuit’s reliance on Michigan Dep't

of State Police v. Sitz, 496 U.S. at 444, and Griffin v. Wisconsin,

483 U.S. 868 (1987), relegates pregnant women in their doctors’

12 See also Casey, 505 U.S. at 898 (“The husband’s interest in the life of the

child his wife is carrying does not permit the State to empower him with this

troubling degree of authority over his wife. The contrary view leads to

consequences reminiscent of the common law . . . if the husband’s interest in

the fetus’ safety is a sufficient predicate for state regulation, the State could

reasonably conclude that pregnant wives should notify their husbands before

drinking alcohol or smoking.”).

16

offices to a status comparable to the one occupied by convicted

criminals on probation, leaving them with less protection under the

Fourth Amendment than this Court provides motorists in their cars.

As the court below notes, this Court has applied a balancing

test to uphold the constitutionality of government checkpoints set

up to detect drunken drivers, Sitz, 496 U.S. at 444, and illegal

immigrants, United States v. Martinez-Fuerte, 428 U.S. 543

(1976). However, the Fourth Circuit’s reliance on these cases

ignores the many distinctions between checkpoint searches and the

search at issue here.

This Court has stressed that the checkpoint cases involved no

more than an “initial stop . . . and the associated preliminary

questioning and observation by checkpoint officers.” Sitz, 496

U.S. at 450-51. Indeed, the very randomness and universality of

these checkpoint seizures is what saves them by preventing their

abuse. As this Court cautioned in distinguishing between such

checkpoint “seizures” in which drivers are observed by officers

who stand outside the stopped car, and situations, such as those at

issue here, where the personal property or body of an individual

itself is searched: “{D]etention of particular motorists for more

extensive . . . testing may require satisfaction of an individualized

suspicion standard.” Sitz, 496 U.S. at 451 (citation omitted).

Thus, under the Fourth Circuit’s ruling, which guts the

individualized suspicion standard for low-income pregnant women

seeking prenatal care late in pregnancy (and who thus fall within

the Search Policy’s dragnet), pregnant women have fewer rights

than motorists.

Similarly, at least since United States v. Ortiz, 422 U.S. 891

(1975), it has been clear that the limited exception to the

individualized suspicion requirement that justifies temporary

seizures of motorists at properly operated checkpoints does not

serve also to allow searches of one’s person or even one’s effects.

As the Court held in Ortiz, “at checkpoint stops removed from the

border and its functional equivalents, officers may not search

private vehicles without consent or probable cause.” Ortiz, 422

U.S. at 896-97; see also Martinez-Fuerte, 428 U.S. at 567 (after

brief questioning at illegal immigrant checkpoint, any further

invasive conduct must “be based on consent or probable cause”)

17

(citations omitted); Wilkinson v. Forst, 832 F.2d 1330 (2d Cir.

1987) (pat-down searches of known KKK members entering rally

unconstitutional despite record of violent behavior). Under the

Fourth Circuit’s ruling, though, the body of a pregnant woman can

be searched for law enforcement purposes in the privacy of her

doctor's office without consent or probable cause.

Furthermore, the Search Policy’s allowance for discretion

takes it completely outside the bounds of Sitz and the other

checkpoint cases relied upon by the Fourth Circuit, because the

special needs exception only applies to policies authorizing non-

discretionary searches. Ferguson, 186 F.3d at 479 (“cases

upholding warrantless administrative searches clearly establish that

these rules require certainty, regularity, and neutrality in the

conduct of the searches.”) (quoting Turner v. Dammon, 848 F.2d

440, 446-47 (4th Cir. 1988)). As this Court noted in Sitz,

“standardiess and unconstrained discretion is the evil the Court has

discerned.” Sitz, 496 U.S. at 454 (citing Delaware v. Prouse, 440

U.S. 648, 661 (1979)); see also T.L.O., 469 U.S. at 342 n.8;

Prouse, 440 U.S. at 654-55. As this Court held in a case involving

an attempted search of a student’s backpack by school officials, “‘a

search conducted in the absence of individualized suspicion would

be resonable only in a narrow class of cases,” where, inter alia,

“safeguards are available to assure that the individual’s reasonable

expectation of privacy is not subject to the discretion of the official

in the field.”” DesRoches v. Caprio, 156 F.3d 571, 575 (4th Cir.

1998) (quoting 7.L.0., 469 U.S. at 342 n.8).

But the court of appeals erred in asserting that the Search

Policy at issue here involved such neutrality. Although, as the

panel notes, “the urine drug screens were conducted whenever one

of the criteria for testing was met; a treating physician had no

discretion to decline to order a urine test under the Search Policy,”

Ferguson, 186 F.3d at 479, the problem here was that the criteria

themselves included such discretionary criteria as “inadequate

prenatal care,” women with “no prenatal care,” and women with

“[p}reviously known drug or alcohol abuse.” JX 2 at MUSC-763;

Trial Tr. 12/10/96 at 220-227 (Newman); JX 2 at MUSC-763;

Trial Tr. 12/5/96 at 9-18 (Horger); Trial Tr. 11/21-22/96 at 28:17 —

30:15 (Brown). As Plaintiffs’ expert Ira Chasnoff, M_D.., testified,

18

such “medically senseless” criteria, Trial Tr. 12/4/96 at 15-17, 42

(Chasnoff), invited discriminatory testing because selecting which

patients to test based on lack of prenatal care constituted a proxy

for selecting poor African-American patients,'> and because giving

physicians the discretion to determine whom to test would produce

a racially disproportionate impact. Tria! Tr. 12/4/96 at 15-17, 42

(Chasnoff).!4

The Fourth Circuit’s reliance on Griffin v. Wisconsin, 483 U.S.

868 (1987), is similarly misplaced for the reasons noted above:

probationers have lesser constitutional protections than the public

at large. See Griffin, 483 U.S. at 875 (previous finding of guilt of

probationer permitted impingement on privacy that would not be

constitutional if applied to the public at large).!5 See infra at 14 n.

11. Under the Fourth Circuit’s ruling, pregnant women are

improperly placed in a lower status than the public at large, and are

relegated to the same level of constitutional protections as

parolees, probationers and prisoners.

13 Numerous studies show that policies concerning drug use among pregnant

women are implemented in a racially biased manner. Trial Tr. 12/4/96 at 17-

20 (Chasnoff); see also Ira Chasnoff, M.D., Harvey J. Landress, A.C.S.W.,

Mark E. Barrett, Ph.D., “The Prevalence of Illicit-Drug or Alcohol Use

During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas

County, Florida,” 322 New Eng. J. of Med. 1202 (Apr. 26, 1990).

-14 As the court of appeals found, the Search Policy did indeed have a racially

discriminatory impact on African-American women. Ferguson, 186 F.3d at

481. Moreover, after implementation of the new subjective criteria for

testing, the proportion of African American women tested rose by an amount

equal to approximately 10.5 standard deviations. Trial Tr. 11/25/96 at 139-

141 (Shapiro).

15 See also United States v. Jarrad, 754 F.2d 1451, 1453 (9th Cir. 1985)

(warrantless parole search does not run afoul of the Fourth Amendment when

the parole officer reasonably believes such search is necessary in the

performance of his duties) (citing Latta v. Fitzharris, 521 F.2d 246 (9th Cir.

1975) (en banc)).

19

C. The “Special Needs” Exception Does Not Apply

Here Because the Need Articulated is Merely

“Symbolic.”

The court below also erred by applying the “special needs”

exception without considering that the claimed non-law

enforcement need in this case was purely “symbolic,” not special.

See Chandler v. Miller, 520 U.S. 305, 322 (1997). In Chandler,

this Court found the drug-testing scheme for candidates for elected

office in Georgia unconstitutional because “[t]he need revealed, in

short, is symbolic, not ‘special,’ as that term draws meaning from

our case law.” Jd.; see also Von Raab, 489 U.S. at 681 (Scalia, J.,

dissenting) (government had not shown that the need to test

customs employees for drugs was special because “neither

frequency of use nor connection to harm is demonstrated or even

likely.”); id. (the testing program was “a kind of immolation of

privacy and human dignity in symbolic opposition to drug use.”’)

The courts of appeals have relied on Chandler to determine

whether the need is “special” and not “symbolic.” For example, in

United Teachers of New Orleans v. Orleans Parish School Board,

142 F.3d 853, 856-57 (Sth Cir. 1998), the Fifth Circuit held that a

drug testing program for teachers involved in workplace accidents

was not based on a special need because the state interest was not

well-defined or based on “demonstrated realities”:

. . . [I]t is self-evident that we cannot rest upon the

rhetoric of the drug wars. As destructive as drugs

are and as precious are the charges of our teachers,

special needs must rest on demonstrated realities.

Failure to do so leaves the effort to justify this

testing as responsive to drugs in public schools as

a “kind of immolation of privacy and human

dignity in symbolic opposition to drug use,” that

troubled Justice Scalia in Von Raab.

Id. at 857 (citation omitted) (rules on testing both under- and

overinclusive). Similarly, in /9 Solid Waste Department

Mechanics v. City of Albuquerque, 156 F.3d 1068, 1072-75.(10th

Cir. 1998), the Tenth Circuit held that a drug testing program for

garbage truck mechanics was not based on a special need because

20

the program “lacks a real capacity to address drug use in the

workplace.” Jd. at 1074.

In this case as well, the Search Policy was similarly under and

over inclusive, and “lack[ed] a real capacity to address drug use”

by pregnant women. The Respondents could not establish a

sufficient nexus between the testing program and their claimed

purpose of promoting healthy pregnancies, because the testing

criteria used here was both under- and overinclusive. See United

Teachers, 142 F.3d at 856-57. It was underinclusive because

women were only reported for positive cocaine tests and not for

the numerous other harmful substances also tested. It was

overinclusive because it tested all women who had “inadequate

prenatal care,” despite the fact that this is more of a marker for

poverty and racial status than it is for substance abuse. See id.

(striking Search Policy of testing teachers who have been injured

because of “insufficient nexus between suffering an injury at work

and drug impairment”).

Thus, because the decision of the court below conflicts with

the decisions of this Court on the important question of the

applicability of the special needs exception, the petition should be

granted. Sup. Ct. R. 10(c).

Il. The Opinion of the Court Below Decides an Important

Federal Question That Has Not Been, but Should Be

Decided by This Court and Conflicts with Decisions from

Several United States Courts of Appeals, All of Which

Have Rejected Application of the Special Needs Exception

to Search Policies with a Dual Purpose.

As this Court stated in Skinner:

We leave for another day 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

FRA’s program.

21

Skinner, 489 U.S. at 621 n.5; see also TL. O., 469 U.S. at 341

n.7 (“This case does not present the question of the appropriate

standard for assessing the legality of searches conducted by school

officials in conjunction with or at the behest of law enforcement

agencies, and we express no opinion on that question”). This case

squarely presents the important federal question left open by

Skinner and T.L.O..

To the extent that some “special” need beyond the normal

needs of law enforcement was even slightly served by the Search

Policy at issue here,'® but see supra at 18-20, this case presents the

important question, “le{ft] for another day” in Skinner, of “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

Search Policy. This question, of whether a search policy serving

both the normal needs of law enforcement, but also serving

minimally some other “special need,” may be exempt from the

Fourth Amendment’s requirements of warrants and individualized

suspicion, is “an important question of federal law that has not

been, but should be, settled by this Court.” S. Ct. Rule 10(c).

Although this Court has not addressed this question in its

“special needs” cases, this Court’s discussion of the issue of

overlapping law enforcement and administrative purposes in cases

conceming administrative searches is illuminating here. For

example, in Michigan v. Clifford, 464 U.S. 287 (1984), the Court

evaluated a search of a home in the aftermath of a fire,

distinguishing between the search to determine the cause of the fire

and a second separate search to gather evidence of criminal arson.

Id. at 294. The Court held that, unless a search was justified by

exigent circumstances or consent, even a search to determine the

cause of the fire required a warrant, albeit an administrative one.

'® At best, the Search Policy here was designed with a dual purpose: to

improve the health of fetuses and to collect evidence for criminal

prosecutions. Ferguson, 186 F.3d at 484 (Blake, J., dissenting) (noting that

although the health of fetuses “was a motivating force in the development of

the MUSC policy, it nevertheless is clear from the record that an initial and

continuing focus of the policy was on the arrest and prosecution of drug-

abusing mothers . . . ”).

22

Id. Moreover, noting that “the object of the search determine[d]

the type of warrant required,” id., the Court stated:

If the primary object is to determine the cause and

origin of a recent fire, an administrative warrant

will suffice. . . . If the primary object of the search

is to gather evidence of a criminal activity, a

criminal search warrant may be obtained only on a

showing of probable cause to believe that relevant

evidence will be found in the place to be searched.

Id. at 294 (emphasis added).

On the other hand, in the context of administrative inspections

of a “pervasively regulated business,” where the privacy interests

of property owners are reduced, see New York v. Burger, 482 U.S.

691 (1987), this Court approved an administrative search without a

warrant, even where the search might also uncover evidence of

crimes. /d. at 716. The Court stressed that the administrative

scheme in question was not being used as a ““pretext’ to enable

law enforcement authorities to gather evidence of penal law

violations,” id. at 716 n.27, indicating that if the administrative

purpose is dominant and the law enforcement goals are merely

incidental to the regulatory goals, the search should be analyzed

under the administrative search exception. /d. at 716-17. The

court below, however, did not apply even this lower level of

review to searches of the bodies of pregnant women, examining

neither whether the primary object of the search was to gather

evidence of criminal activity, nor whether the drug testing scheme

was a “pretext” to enable authorities to gather evidence of penal

law violations. Thus, under the Fourth Circuit’s approach,

application of the “special needs” exception to a dual purpose case

such as this one, where the law enforcement goals of the search

policy are so extensive, does not even provide the level of

protection provided in Clifford and Burger.

Indeed, no other court has applied the “special needs”

exception in circumstances similar to this case. Application of the

“special needs” exception in the lower courts reveals two distinct

categories: cases in which there is no law enforcement purpose

whatsoever, and cases in which the person being searched has

23

reduced constitutional rights because of his or her status as a

parolee, probationer or prisoner, where there is a special need

unrelated to law enforcement coupled with an overlapping law

enforcement purpose. The courts of appeals have applied the

“special needs” exception only in these two categories.

In the first category, the courts of appeals have allowed drug

testing in various fields of employment and in a variety of school

situations, following this Court’s lead in Skinner, 489 U.S. 602,

Von Raab, 489 U.S. 656, O'Connor v. Ortega, 480 U.S. 709

(1987), Acton, 515 U.S. 646, and 7.L.0., 469 U.S. 325. In each of

these cases a key factor in applying the “special needs” exception

was that there was no law enforcement use of the drug testing

results. See, e.g., Aubrey v. School Board of Lafayette Parish, 148

F.3d 559 (Sth Cir. 1998) (school custodian); Todd v. Rush County

Schools, 133 F.3d 984 (7th Cir. 1998) (students involved in extra-

curricular activities); Stigile v. Clinton, 110 F.3d 801 (D.C. Cir.

1997) (Office of Management and Budget employees);

International Brotherhood of Electrical Workers v. United States

Nuclear Regulatory Commission, 966 F.2d 521 (9th Cir. 1992)

(clerical, warehouse, and maintenance employees at a nuclear

power plant); Willner v. Thornburgh, 928 F.2d 1185 (D.C. Cir.

1991) (applicants for Department of Justice positions); Penny v.

Kennedy, 915 F.2d 1065 (6th Cir. 1990) (fire fighters and police

officers); Bluestein v. Department of Transportation, 908 F.2d 451

(9th Cir. 1990) (various categories of employees in the private

commercial aviation industry); Transport Workers' Union v.

Southeastern Pennsylvania Transportation Authority, 884 F.2d

709 (3d Cir. 1988) (safety sensitive transit authority employees);

Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989) (civilian

employees at chemical weapons plant); Schaill v. Tippecanoe

County School Corp., 864 F.2d 1309 (7th Cir. 1988) (student

athletes).

Second, following Griffin, many courts have applied the

“special needs” exception to cases involving searches of

probationers, parolees, and prisoners, all people with reduced

constitutional protections because of a prior criminal conviction.

See 483 U.S. at 873-74 (search of a probationers’ residence); see,

e.g., Roe v. Bosco, 193 F.3d 72 (2d Cir. 1999) (convicted sex

24

offenders); United States v. Payne, 181 F.3d 781 (6th Cir. 1999)

(parolee); United States v. Vincent, 167 F.3d 428 (8th Cir. 1999)

(terms of probation); United States v. Jones, 152 F.3d 680 (7th Cir.

1998) (parolee); United States v. Ward, 131 F.3d 335 (3d Cir.

1997) (person convicted of sexual assault); Rise v. Oregon, 59

F.3d 1556 (9th Cir. 1995) (persons convicted of murder or any

sexual offense); United States v. Lewis, 71 F.3d 358 (10th Cir.

1995) (parolee); Shea v. Smith, 966 F.2d 127 (3d Cir. 1992)

(probationer); United States v. Hill, 967 F.2d 902 (3d Cir. 1992)

(parolee); United States v. Giannetta, 909 F.2d 571 (1st Cir. 1990)

(probationer); United States v. Cardona, 903 F.2d 60 (ist Cir.

1990) (parolee); Dunn v. White, 880 F.2d 1188 (10th Cir. 1989)

(prisoner); United States v. Richardson, 849 F.2d 439 (9th Cir.

1988) (probationer). Like this Court in Griffin, 483 U.S. at 874

(probationers “do not enjoy ‘the absolute liberty to which every

citizen is entitled . . ."”) (quoting Morissey v. Brewer, 408 U.S.

471, 480 (1972)), the courts in these cases stressed the limited

constitutional protections available to those convicted of a crime.

See, e.g., Rise, 59 F.3d at 1560 (“Once a person is convicted of one

of the felonies included as predicate offenses . . . his identity has

become a matter of state interest and he has lost any legitimate

expectation of privacy in the identifying information derived from

blood sampling.”); Hill, 967 F.2d at 909 (“In fact, parole may be

an even more severe restriction on liberty because the parolee has

already been adjudged in need of incarceration.”); Shea, 966 F.2d

at 131 (réciting Griffin's analysis relying on the fact that

“probationers have a diminished expectation of privacy by virtue

of their status”).

Beyond these two classes of warrantless searches not based on

probable cause, however, the courts of appeals that have dealt with

this issue, with the exception of the Fourth Circuit in this case,

have uniformly found that searches with a law enforcement

purpose not involving persons in prison or on parole or probation

are outside the “special needs” exception, even though the

government claims that an important, and even compelling, non-

law-enforcement purpose is served by the policy at issue. For

example, in Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), the

court rejected application of the “special needs” exception to a

25

police officer’s search of a child’s vaginal area and of the child’s

parent’s home. /d. at 790-91. While recognizing the importance

of “society’s interest in protecting young children from abuse and

neglect,” id. at 788, the court distinguished between a search by a

social worker where the “principal focus is the welfare of the

child,” and the search by the police officer where the “focus was

not so much on the child as it was on the potential criminal

culpability of her parents.” Jd. at 791.

Similarly, in United Teachers, the Fifth Circuit rejected

application of the special needs exception to a policy of drug

testing the urine of teachers injured on the job despite recognizing

the state’s important interest in responding to the presence of drugs

in the public schools. United Teachers, 142 F.3d at 856-57.

There, the court held that “[t]he two parish school boards have

offered no legal justification for insisting upon drug testing urine

[of teachers injured on the job] without a showing of

individualized suspicion of wrongdoing in a given case, certainly

nothing beyond the ordinary needs of law enforcement.” Id.

(emphasis added).

Moreover, in Nelson v. City of Irvine, 143 F.3d 1196, 1203

(9th Cir. 1998), the Ninth Circuit rejected application of the special

needs exception to blood tests conducted on DUI arrestees, despite

the state’s interest in ensuring the safety of public roadways. In

Nelson, the court noted that in Skinner, this Court cited as

examples of “special needs” cases, “searches of probationers’

homes, searches of the premises of highly regulated businesses,

work-related searches of employees’ desks and offices, searches of

students’ property by school officials and body cavity searches of

prison inmates.” Jd. The court held that “[iJt is untenable to

equate the police DUI traffic stops with the pervasively regulated

environments where special needs can justify even suspicionless

drug testing,” /d. See also United States v. Colyer, 878 F.2d 469,

478 (D.C. Cir. 1989) (rejecting application of special needs test to

search for drugs by DEA agent and his drug sniffing dog, the court

noted that “[iJn no case has the Supreme Court indicated that a

search for evidence qua evidence might qualify as a ‘special need’

that would warrant reasonableness balancing. Common sense

.____ Suggests that it is not.”).

26

Certiorari is, therefore, warranted under Supreme Court Rules

10(a) and 10(c) because application of the “special needs”

exception to a policy serving both law-enforcement and non-law

enforcement purposes raises an important issue of federal law as

yet undecided by this Court and conflicts with decisions from four

other courts of appeals. ;

III. Assuming, Arguendo, that the “Special Needs” Exception

Does Apply Here, the Court Below Erred By Applying the

Balancing Test Used in “Checkpoint Seizure” Cases.

As this Court has held, in “special needs” cases, “‘it is

necessary to balance the individuai’s privacy expectations against

the Government’s interests to determine whether it is impractical

to require a warrant or some level of individualized suspicion in

the particular context.” Von Raab, 489 U.S. at 665-66. Assuming,

arguendo, that the need in this case is indeed “special” and is

sufficiently “beyond the normal need of law enforcement,” the

Fourth Circuit ignores this important-balancing step that is

necessary under this Court’s precedent before concluding that the

“special needs” exception actually applies. Instead of analyzing

whether the warrant and probable cause requirements were

impracticable on the facts before it, the Fourth Circuit leapfrogged

directly to the application of the balancing test applied in

checkpoint “seizure” cases which requires “consideration of the

governmental interest prompting the invasion; the effectiveness of

the intrusion, i.e., the degree to which the intrusion reasonably is

thought to advance the governmental interest; and the magnitude

of the intrusion upon the individuals affected, from both a

subjective and objective standpoint.” See Ferguson, 186 F.3d at

476.'’ Thus, the court below did not consider at all whether it

would have been impractical to require a warrant or some level of

individualized suspicion in this context.

'7 Neither case cited by the majority, see Ferguson, 186 F.3d at 476, to

support its use of this test is applicable here. The Sitz checkpoint “seizure”

test is inapposite in this discretionary program for the reasons outlined above,

and DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir. 1998), does not appear

to apply this test at all.

27

Second, even in applying the Sitz balancing test the court

below erred in two additional ways. For the reasons outlined

above, there was not sufficient evidence that the Search Policy was

“effective.” Supra at 9-10. As the dissent notes, Ferguson, 186

F.3d at 488, seven of the ten Petitioners were arrested after giving

birth, often directly from their hospital beds, wearing nothing but

hospital gowns, rather than during the prenatal period, when

intervention according to the Respondents was crucial. So the

searches at issue here were effective in identifying women to

arrest, but not in insuring a drug-free pregnancy. Nor did

Respondents present any empirical data on the effectiveness of the

targeted testing program in achieving its goal. Cf Sitz, 496 U.S. at

454-55 (noting importance of the empirical data on effectiveness

present in that case).

Moreover, contrary to the finding of the court below, see

Ferguson, 186 F.3d at 479, nothing about the intrusiveness of the

searches here was “minimal.” The court below relies on the

analysis in Sitz to evaluate the intrusiveness of the urine drug tests

here, using the “duration of the seizure and the intensity of the

investigation’” to measure “the extent to which the method chosen

minimizes or enhances fear and surprise on the part of those

searched or detained.” Jd. (quoting Sitz, at 452). But this case

does not involve such a “minimal” intrusion as a quick glance into

a car at a checkpoint on a highway. See Sitz, 496 U.S. at 452-53

(where signs warning of checkpoint stops allow person to avoid

the stop, result is “appreciably less” “subjective intrusion” than

even “roving patrols”). Rather, the Petitioners’ bodies were

searched. Such a nonconsensual search of a person’s body for

evidence of crime is among the most intrusive searches

imaginable. See Rochin v. California, 342 U.S. 165, 210 (1952).

Indeed, this Court has established that drug testing invades

personal privacy in a fashion that brings the requirements of the

Fourth Amendment to bear in fuil force. New Jersey v. T.L.O., 469

USS. at 337 (“[w]e have recognized that even a limited search of

the person is a substantial invasion of privacy”) (citing Terry v.

Ohio, 392 U.S. 1, 24-25 (1967)). As a result, it has approved

suspicionless drug testing as “reasonable” only in a narrowly

circumscribed set of circumstances. In Skinner and Von Raab, for

28

example, the Court upheld carefully constrained programs that

applied only to a limited number of government employees. By

contrast, the program at issue here — if upheld — puts at risk the

privacy of every pregnant woman in South Carolina. In effect, it

decrees that women, by becoming pregnant and seeking medical

attention, place themselves in the same category as minor students

in the custody of the public schools: a “custodial and tutelary”

relationship “permitting a degree of supervision and contro] that

could not be exercised over free adults.” * Acton, 515 U.S. at 655.

This result is radically at odds with the assumptions that have

historically attended medical treatment of adults, in which the

obligation of the medical profession is to guard the confidences of

patients as a “sacred trust.” And it is irreconcilable with the

teaching of this Court in Planned Parenthood v. Casey that it is

unconstitutional to treat pregnant women as dependents requiring

the tutelage of the state. Planned Parenthood, 505 U.S. at 895

(contrasting the “quite reasonable assumption that minors will

benefit from consultation with their parents” with the

constitutional impermissibility of adopting “parallel assumption

about adult women’’).

Nor does the fact that the urine drug tests took place as part of

a medical examination minimize the intrusiveness of the search.!8

Indeed, the fact that the Petitioners had no idea that their

physicians were revealing what the Petitioners believed to be

confidential information!® to law enforcement officers rather than

simply using the information for medical purposes only increases

the intrusive aspect of the search. Just because one does not know

that one is being searched for criminal purposes does not lessen the

impact of the invasion. For example, a search of one’s home even

when one was not there would not be considered minimal, even

18 Both cases cited by the court of appeals, see 186 F.3d at 479, involved

searches for purposes of employment and not for criminal investigation. See

Yin, 95 F.3d at 869; Dimeo, 943 F.2d at 682 (tests for noncriminal purposes);

id. (distinguishing person who has frequent medical examinations because of

illness from person who has them because of a job).

19 MUSC's Patient Handbook, given to all patients, stated “medical records

and all communication pertaining to your care are also treated as

confidential.” PX 105 (App. 75).

29

though searching the home when the occupants are not inside

would drastically minimize “fear and surprise” on the part of those

searched. Cf. Ferguson, 186 F.3d at 479; see also id. at 488

(Blake, J., dissenting).

Therefore, certiorari is also warranted to correct the Fourth

Circuit’s application of the “special needs” exception as it conflicts

with this Court’s past decisions. Sup. Ct. R. 10(c).

CONCLUSION

For the foregoing reasons, the Petitioners respectfully request

that the Court grant their petition for a writ of certiorari to review

the decision of the United States Court of Appeals for the Fourth

Circuit.

Respectfully submitted,

Lynn Paltrow Priscilla J. Smith

Susan Frietsche Counsel of Record

David S. Cohen Simon Heller

Women's Law Project The Center for Reproductive

125 South Ninth St., Suite 300 Law & Policy

Philadelphia, PA 19107 120 Wall Street, 1 8th Floor

(215) 928-9801 New York, NY 10005

(212) 514-5534

David Rudovsky Susan Dunn

Kairys, Rudovsky, Epstein, 171 Church St., Ste. 160

Messing & Rau Charleston, SC 29401

924 Cherry St., Suite 500 (803) 722-6337

Philadelphia, PA 19107

(215) 925-4400

Seth Kreimer

3400 Chestnut Street

Philadelphia, PA 19107

(215) 898-7447

Counsel for Petitioners

Dated: December |, 1999.