Petitioners Brief — Ferguson v. Charleston

No. 99-936

Supreme Court, U.S.

FILED

IN THE

Supreme Court of the Uniggh tates

OCTOBER TERM, 20

JUN 0 1 2000

o>. _

CRYSTAL M. FERGUSON, et al.,

Petitioners,

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

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

SUSAN DUNN :

171 Church Street, Suite 160

Charleston, South Carolina 29401

(803) 722-6337

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

JULIE RIKELMAN

The Center for Reproductive

Law & Policy

120 Wall Street, 18th Floor

New York, New York 10005

(212) 514-5534

LYNN PALTROW

SUSAN FRIETSCHE

DAVID S. COHEN

Women’s Law Project

125 South Ninth Street, Suite 300

Philadelphia, Pennsylvania 19107

(215) 928-9801

Counsel for Petitioners

PETITION FOR CERTIORARI FILED DECEMBER |, 1999

CERTIORARI GRANTED FEBRUARY 28, 2000

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 that

targeted hospital patients and was created and implemented

primarily for law enforcement purposes by police and

prosecutors?

ss

LIST OF PARTIES

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, II,

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.

ili

TABLE OF CONTENTS

PAGE

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SCENE ec an en CER AE aT 1

CONSTITUTIONAL AND STATUTORY

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II. Respondents Designed and Implemented the Search

Policy to Gather Evidence to Arrest the Patients. ......... 2

III. The Search Policy Operated Within the Criminal Justice

OSES ERES AHS JS GI ten oO PER Oe aa RE 6

A. The Search Policy in Practice....................c.s<ese-«s. 6

B. Discretionary Decisions in Creating and

Implementing the Search Policy............0.ccccccceee. 11

C. Lack of Search Warrants or Consent

IESE A 2 acts EIR Sl th Pas a oe Pe 13

iV

Fi PE citi ancbiseaiienbesanaoee 16

IV. The Search Policy Was Not Effective in Improving

OE I iia ciinsistiscscaxstminnsianinassnneniiciniiaiipadan Meastaneabes 17

V. Procedural Background.............ccccceseseseees Neen artes 19

SUMMARY OF ARGIUMENT o...ncsssccsnrsscorsssscssssccssevsnese 19

FOE sci thiicdidetahjrcaviaphaosatiniadandesducniadbaanaeeas 22

I. The Searches of the Patients’ Urine for Evidence

of Crime Violated the Fourth Amendment ................. 22

A. The Searches Here Do Not Fall Within the

“Closely Guarded” Exceptions to the Fourth

Amendment’s Requirements of Warrants and

PMI anisliedcttrabacicchecsenoslbcnpesebcisasiachbiniate tabnd 24

1. The Special Needs Exception Is Inapplicable

Where, as Here, the Law Enforcement

Purpose Is Integral to the Searches ................. 25

2. Because Law Enforcement Played an Integral

Role in the Searches at Issue Here, the

Special Needs Exception Cannot Be Applied

to Excuse the Lack of Warrants or

Individualized Suspicion .................::ccssceeeeeees 30

3. The Special Needs Exception is Inapplicable

Because the Patients’ Expectation of Privacy

OO TN vaintnssnsnniiccntscinsmchinhascndatannen 33

4. This Court’s Jurisprudence Authorizing

Checkpoint Seizures Is Inapplicable to the

Searches Conducted in this Case .................... 36

Vv

B. Assuming, Arguendo, That the “Special Needs”

Balancing Test Does Apply Here, the Balance

Weighs Against the State ...................cccccsssssssseeeee

CONCLUSION

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vi

TABLE OF AUTHORITIES

CASE PAGE

Bond v. United States, 120 S. Ct. 1462 (2000)................. 36

Camara v. Municipal Court, 387 U.S. 523 (1967)............ 35

Chandler v. Miller, 520 U.S. 305 (1997)............0008 passim

Chimel v. California, 395 U.S. 752 (1969)..........:cccceeceees 20

Colonnade Catering Corp. v. United States,

397 OS: TB SFE csssstseictimnndaidaaaal 28

Delaware v. Prouse, 440 U.S. 648 (1979)............0000 39, 40

Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991)... 43

Ferguson v. City of Charleston,

186 F.3d 469 (4th Cir. 1999) nc.ccccsserscssnssccorssncesosneens passim

Flippo v. West Virginia, 120 S. Ct. 7 (1999)........ 21, 22, 23

Griffin v. Wisconsin, 483 U.S. 868 (1987) ........... 26, 29, 33

Johnson v. United States, 333 U.S. 10 (1948) ........eeeeeeee 21

Katz v. United States, 389 U.S. 347 (1967)...........04 21, 22

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).............. 35

Michigan Dep’t of State Police v. Sitz,

BIG US. GAG UGB) wicscecsacvisnashsnsinsieeienmenanmamnaiaad passim

Michigan v. Clifford, 464 U.S. 287 (1984)..... 24, 28, 29, 35

Mincey v. Arizona, 437 U.S. 385 (1978)........ 20, 21, 23, 32

Vii

National Treasury Employees Union v. Von Raab,

Me Er Oe CAT bicninnhnirtinibaclacpcaiadld dsdenaniecitis passim

New Jersey v. T.L.O., 469 U.S. 325 (1985) ..........0006 passim

New York v. Burger, 482 U.S. 691 (1987)........0..0008 passim

O’Connor v. Ortega, 480 U.S. 709 (1987)... 29, 33

Olmstead v. United States, 277 U.S. 438 (1928) ........00... 22

Pennsylvania Bd. of Parole v. Scott,

DE i He ON ia i iscstnisincccncstceiconsthchenibddisaalinscebicas 29

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ..36, 43

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)..........0.. 22

See v. City of Seattle, 387 U.S. 541 (1967)........cccceeeeeeee 35

Skinner v. Railway Labor Executives’ Ass’n,

RO SF EE CE irked iciiilatintihiiitsttiniabinalaneidinadins passim

Turner v. Dammon, 848 F.2d 440 (4th Cir. 1988) ............. 39

Union Pacific R.R. v. Botsford, 141 U.S. 250 (1891) ....... 42

United States v. Biswell, 406 U.S. 311 (1972)............ 26, 28

United States v. Colyer, 878 F.2d 469 (D.C. Cir. 1989) ...30

United States v. Martinez-Fuerte,

MIE Ai Re CTE iis tiisdconnindnstblodcidndtictnenchaaeanadacnee 37, 40

United States v. Ortiz, 422 U.S. 891 (1975)... eee 38, 39

United States v. United States Gypsum,

a ra. I UE ishichsnesnah escheat Societe alaueactieaties 6

Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).... passim

Viii

rman ¥. Hine, 429 US. SOD CGT) vssccssiniiccnsstacsssnsanesiens 35

Whitner v. South Carolina, 492 S.E.2d 777

(S.C. 1997), cert. denied, 528 U.S. 1145 (1998) ........ 42, 43

Whren v. United States, 517 U.S. 806 (1996)............. 27, 31

Wyoming v. Houghton, 526 U.S. 295 (1999)...........65. 36, 39

Yin v. California, 95 F.3d 864 (9th Cir. 1996)..............00.. 43

CONSTITUTIONAL AND STATUTORY PROVISIONS

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Sais, CR Fc © CSPI sacitictiiers dicistecninnsicesniecacacasnaeasaacic 2

has RAE FIR, BI icssnss siescicnatierniaicininibaedcssedoasn 16

eR CU PM cscs sacchenksiccsisccts creel 16

S.C. Code Amt. § 44-53-4460 .00...cscccscssscssessesteocssacdscasceenes 16

U.S. Constitutional Amendment IV 1.0.0.0... | iy

MISCELLANEOUS

Albert R. Jonsen, et al., Clinical Ethics

(4th ed. 1998)

]

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 to the Petition for Certiorari (App. 3).

The only written opinion of the United States District Court

for the District of South Carolina is unreported and is also set

forth in that Appendix (App. 36).

JURISDICTION

The opinion of the United States Court of Appeals for the

Fourth Circuit was entered on July 13, 1999. That court also

denied a petition for rehearing en banc 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

U.S. Const. amend. 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 (“Petitioners” or “the patients”), brought this action

under 42 U.S.C. § 1983 against Respondents, the City of

Charleston, South Carolina, and a group of law enforcement

Officials and hospital trustees and personnel. Petitioners

2

challenged Respondents’ policy of warrantless and

nonconsensual drug testing for criminal investigatory

purposes (“the Search Policy”) of a targeted group of women

who sought obstetrical care at the Medical University of

South Carolina (“MUSC” or “the hospital”); the public

hospital located in Charleston.! Members of an interagency

group consisting of personnel from the City of Charleston

Police Department (“the police”), the Charleston County

Solicitor’s Office,? and the hospital developed and

implemented the Search Policy and applied it only at the one

hospital in Charleston whose patient population was

predominantly African-American. An “initial and continuing

focus of the 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 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 Respondents’ chosen drug treatment programs.

Il. Respondents Designed and Implemented the Search

Policy to Gather Evidence to Arrest the Patients.

The record establishes that the Search Policy’s purpose,

from inception to completion, was to further the needs of

South Carolina law enforcement by identifying and gathering

evidence of alleged criminal activity by pregnant women.

The initial communications about the Search Policy occurred

after Respondent Shirley Brown, R.N. (“Nurse Brown”), a

case manager in the Obstetrics Department at the hospital,

learned that the Solicitor in Greenville, South Carolina was

using the state child abuse statute to prosecute pregnant

women for drug use during pregnancy. On the same day,

Nurse Brown mentioned the report to the hospital’s General

! Jurisdiction over this action was proper in the district court under 28

U.S.C. §§ 1331 and 1343(a).

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

S.C. Code Ann. §§ 1-7-310; 1-7-320.

3

Counsel Joe Good. Brown Tr. 11/21/96 4:10-5:17 (JA 73-

75).3 As a result of this conversation, on August 23, 1989,

Mr. Good wrote to Respondent Charles Conden, who was

then the Charleston County Solicitor 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 (emphasis added) (App. 67).4 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 representatives from the

police, the Solicitor’s Office, and the hospital. The purpose

of the task force was “to consider possible prosecution of the

mothers of drug affected babies.” PX 6 at 1 (App. 69).

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

and representatives from the Solicitor's Office, the police,

and the hospital held an initial meeting in mid-September

1989. Brown Tr. 11/21/96 4:18-6:10 (JA 74-76); Condon Tr.

5:1-16 (JA 336-37); Comely Tr. 321:25-322:8 (JA 399-400);

PX 6 (App. 69-71). At the meeting, law enforcement

personnel informed hospital staff that women using drugs

3 Citations to witness testimony are to the witness’s name, page and line

number of the trial transcript, and, when applicable, to the page of the

Joint Appendix (“JA”) or Appendix to the Petition for Certiorari (““App.”)

on which the cited transcript appears.

4 Plaintiffs’ Exhibits are cited as “PX -”; Joint Exhibits as “JX -.” When

included in the Joint Appendix, citations also indicate the page of the

Joint Appendix on which the Exhibit appears as “JA -.” When included

in the Appendix to the Petition for Certiorari, citations indicate the page

of that Appendix on which the Exhibit appears as “App. -.”

: =

during pregnancy had violated South Carolina’s criminal

child abuse and neglect laws. Brown Tr. 11/21/96 5, 7:22-

8:12 (JA 74-75, 77-78); Greenberg Tr. 148 (JA 540-41).

Thus, as Mr. Good explained, the Policy was instituted “/a/t

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

PX 28 at 1 (emphasis added) (App. 72).

In accordance with the Search Policy’s purpose of

uncovering alleged criminal activity, law enforcement

personnel, not hospital officials, first memorialized the

Policy in a series of separate internal memoranda. These

memoranda set forth the guidelines by which: women would

be selected for testing; drug testing would be conducted; a

formal “chain of custody” for the urine samples would be

maintained; and positive drug tests would be reported to the

police. See, e.g., Roberts Tr. 17:11-18:15 (stating that he

brought the director of the police crime lab to the hospital to —

discuss proper collection of urine samples) (JA 1052-53); IX

1 (10/12/89 operational guidelines written by Captain

Roberts discussing when hospital personnel would notify the

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

Solicitor listing criminal charges that could apply to women

coming under the Search Policy) (App. 64); PX 14 (10/24/89

letter from Assistant Solicitor Cornely to Nurse Brown

enclosing “drafts” of “our policies”) (JA 1285). The October

12, 1989, operational guidelines issued by the police after

consultation with the Solicitor’s office refer to the positive

drug tests as “probable cause” for arrest of the mother. JX 1

at 2 (App. 49); Roberts Tr. 12:17-23 (JA 1046-47).

Each aspect of the Search Policy was designed to assist

law enforcement personnel in performing their duties. For

instance, in order to simplify the arrest process, the hospital

notified the police when a patient was ready for discharge

after her delivery so that a detective could arrest her at the

hospital before she had the opportunity to leave. Roberts Tr.

24:12-19 (JA 1058); Brown Tr. 11/21/96 92:18-22; PX 258

(JA 1308). At the time of arrest, hospital personnel also

provided the arresting officer with the patient’s address, date

of birth, social security number, and aliases, if any. Brown

5

Tr. 11/21/96 103:19-105:15 (JA 144-46). The officer then

received, according to the operational guidelines drafted by

the police, a copy of the drug screen report and the discharge

summary, which provided all the information necessary for

arrest. FX 1 (instructing detectives to obtain copies of all

medical records at time of arrest) (App. 49); Good Tr.

216:14-218:6 (JA 521-23); Waring Tr. 200:19-23 (JA 1185).

Based on these aspects of the Search Policy, at trial 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 at 17:22-18:4 (“Jury Charge”) (JA

1314). As the dissent below wrote:

i

Preliminarily, assuming that concern for the

health of fetuses being carried by pregnant

women using crack cocaine 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, 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

6

officials from the very beginning of its implementation” were

clear.).°

IIL The Search Policy Operated Within the Criminal

Justice System.

A. The Search Policy in Practice

The Policy as initially implemented and applied to four of

the Petitioners required the immediate arrest of any patient

when a search of her or her newborn resulted in evidence of

cocaine. See Opposition to Petition for Certiorari at 7 n.4

(“Opp. Cert.”’) (conceding that from the policy’s inception

until early 1990 women were arrested based on a single

positive drug test); Horger Tr. 28:10-14 (JA 653). Petitioners

Griffin, Singleton, Knight, and Powell were all arrested at the

hospital and transported to jail after they or their child hada ~

single positive urine screen. Griffin Tr. 6:4-25, 8:1-19 (JA

546-48); Singleton Tr. 52:8-53:7, 60:1-62:5 (JA 1132-36);

Knight Tr. 121-125 (JA 773-78); Powell Tr. 149-152 (JA

1011-15). As Solicitor Condon testified, these patients were

treated according to the “normal criminal [] process.”

Condon Tr. 10:25-11:19, 78:1-15 (JA 342-43, 382-83).

The patients arrested during the Policy’s initial months

received no referral for drug treatment and no opportunity to

obtain treatment as an “alternative” to arrest. See Opp. Cert.

at 7 n.4; Brown Tr. 11/21/96 37:5-39:9 (JA 104-07). Even

after these women were arrested, no one associated with the

>In rejecting the dissent’s conclusion that the Search Policy was

implemented to uncover and gather evidence of alleged criminal activity,

the Fourth Circuit majority overlooked not only Respondents’

voluminous testimony regarding the impetus for the Search Policy’s

creation, but also the overwhelming contemporaneous documentary

evidence. See Ferguson v. City of Charleston, 186 F.3d 469, 475 n.3 (4th

Cir. 1999). Respondents’ post-hoc self-serving characterizations of the

Search Policy’s goals are simply not as reliable as contemporaneous

documentary evidence. See United States v. United States Gypsum, 333

U.S. 364, 396 (1948) (“Where such testimony is in conflict with

contemporaneous documents we can give it little weight. . . .”).

QQ

sgl US PR I

7

Search Policy provided them with any information about

drug treatment services.°®

For instance, Petitioner Lori Griffin was searched under

the Policy without her knowledge or consent in early October

1989, when she came to the hospital for prenatal care during

her eighth month of pregnancy. Griffin Tr. 6, 8:1-19, 27:6-

28:6 (JA 546-48, 567-68). On October 10, 1989, Nurse

Brown informed Ms. Griffin that she was being released to

go home; instead, police entered her hospital room, informed

her that she was under arrest for distribution of cocaine to a

minor, and removed her in handcuffs and shackles to a

waiting police car. Griffin Tr. 8-9; 43:16-20 (JA 547-49,

581-82). Nurse Brown never presented Ms. Griffin with the

option of avoiding arrest by entering a treatment program.

Griffin Tr. 6:4-11, 25:5-20, 29:13-17 (JA 546, 565-66, 570).

Nor had Ms. Griffin been aware that the results of her

medical tests could be turned over to the police and used as

the basis for her arrest. Griffin Tr. 27:9-21 (JA 567-68).

After her arrest at the hospital and until she gave birth on

October 26, 1989, Ms. Griffin spent three weeks in jail in an

unsanitary cell with only a metal table and cushion to serve

as a bed. Griffin Tr. 12-19, 4:2-3 (JA 551-60, 544). During

that time, she was transported back and forth from the

hospital for further care, which she received in handcuffs and

shackles. Griffin Tr. 19-22 (JA 559-63). As she stated,

physicians at the hospital “would lift -- let one leg be free and

the next leg they would attach to the bed.” Griffin Tr. 20:15-

16 (JA 560). Medical staff did not provide Ms. Griffin with

substance abuse counseling or treatment during these visits,

nor did they refer her to any other source of help. Griffin Tr.

22:2-13 (JA 562).

6 Although Respondent Condon insisted at trial that the Search Policy

was always intended to provide “amnesty,” see, e.g., Condon Tr. 21:18-

20 (JA 355), in August 1989 he described the policy as regarding “the

ion of the mothers.” PX 6 at 1 (App. 69); see also Horger Tr.

28:1-3 (JA 653) (confirming that “amnesty is a term that was never used

in any of the initial meetings concerning the policy”).

8

Similarly, Respondents searched Petitioner Sandra

Powell after she arrived at the hospital in labor on October

13, 1989. Powell Tr. 150:13-151:25 (JA 1013-14). The

following morning, Nurse Brown informed her that her urine

had tested positive for cocaine and that she would be arrested

immediately for unlawful neglect of a child. Powell Tr.

151:21-25 (JA 1014); PX 281 at SOL-IC 1847. Although

Ms. Powell requested assistance, stating “please, what could

I do to stop this or could you help me,” Nurse Brown

responded simply that she would “be locked up.’”” Powell

Tr. 152:1-5 (JA 1014). Ms. Powell was arrested while she

was still in pain and bleeding from childbirth. Handcuffed

and wearing only a hospital gown, she was transported to the

city jail. Powell Tr. 152:8-17, 153:7-20, 154:2-6 (JA 1015-

17); PX 281 at 01-M-12, 01-M-13.

In early 1990, Respondent Solicitor Condon altered the

Policy so that women coming under its terms were threatened

with arrest and prosecution if they did not enroll in a

“treatment program.” Condon Tr. 10:25-11:11, 12:21-13:1

(JA 342-43, 345); Brown Tr. 11/21/96 37:5-39:9 (JA 104-

07). After a search revealed evidence of cocaine, Nurse

Brown presented the patient with a “Solicitor’s Letter,”

which informed her of the search results and stated: “If you

fail to attend Substance Abuse and Pre-Natal Care you will

be arrested by Charleston City Police and prosecuted by the

Office of Solicitor.” JX 7 (given to those patients testing

positive for drugs during a prenatal visit) (emphasis in

original) (JA 1265); see also JX 6 (substantively identical

Solicitor’s Letter given to women testing positive at delivery)

(JA 1263). Threatening arrest in order to mandate certain

behavior was a strategy the Solicitor “used routinely in the

criminal justice system.” Condon Tr. 14:4-7 (JA 347).

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

obtaining drug treatment. See PX 281 at 01-M-13 (patient “Tre-

emphasizes her desire for drug treatment”); id at 01-M-32 (patient

“desires to be free of addiction to cocaine” and “was accepting of

information”).

9

Both the Solicitor’s Office and Nurse Brown tracked the

treatment of those patients who received Solicitor’s Letters,

and those who failed to comply with the terms of the

designated drug treatment program or again tested positive

when they returned for obstetrical treatment at the hospital

were immediately arrested. Brown Tr. 11/21/96 85:13-20,

11/22/96 206:15-20 (JA 134, 178); Condon Tr. 20:16-24,

97:7-17 (JA 354, 391); IX 1 (police operational guidelines

stating that if “the patient has tested positive a second time

for drug use . . . the subject will be taken into custody

immediately upon her medical release”) (emphasis added)

(App. 49); IX 10 (JA 1269-70). Petitioners Ferguson, Pear,

Joseph, Hale, and Williams were all arrested because they

were unable to satisfy the terms set by the Solicitor’s Office.

PX 276 at CCPD 399-400 (Hale); Ferguson Tr. 187:4-189:12

(JA 462-64); PX 274 at CCPD 343-44 (Ferguson); PX 277 at

CCPD 199-200 (Joseph); P. Williams Tr. 212:15-213:5,

220:14-224:4 (JA 1204-05, 1210-15); PX 283 at WIL-PD-13

(Williams); Pear Tr. 254:18-24, 256:3-257:2 (JA 956-58);

PX 280 at MUSC 4666 (Pear).

For instance, after Respondents searched Petitioner

Crystal Ferguson when she sought prenatal care at the

hospital in the summer of 1991, she was shown the

Solicitor’s Letter and threatened with arrest unless she

enrolled in an inpatient treatment program. Ferguson Tr.

197:3-198:10, 182:24-183:13 (JA 473-74, 457); PX 274 at

SOL-IC-3530. Although Ms. Ferguson was willing to obtain

treatment, she was unable to enter an inpatient program

because of her child care responsibilities. Ferguson Tr.

183:22-25 (JA 458); PX 274 at 00-133. Nurse Brown

reported this information to the police, who planned to arrest

Ms. Ferguson on the day of her release from the hospital.

Ferguson Tr. 188:3-12 (JA 463). Because Ms. Ferguson was

still weak from giving birth by cesarean section, however,

and her mother had died shortly after the delivery, hospital

personnel agreed to permit her to return home, and the police

later arranged that she would turn herself in for arrest in three

weeks. Ferguson Tr. 187:4-189:12 (JA 462-64); PX 274 at

10

CONDN-2059. Only after she gave birth did the hospital

refer Ms. Ferguson to an outpatient program; she was

scheduled to begin the program on the day she turned herself

in to the police. Ferguson Tr. 186:23-187:1 (JA 461).

Darlene Nicholson is the only Petitioner who avoided

arrest under the Search Policy. On December 17, 1993,

Nurse Brown confronted her about her cocaine use after Ms.

Nicholson’s urine was searched under the guise of treating

her for dehydration:

[T]Jhey said I was dehydrated and I needed to

be hooked up to glucose. . . . [T]hey told me

to drink lots of water. . . . I asked them if I

was to be hooked up to the glucose

machine. . . . [T]hey just told me to keep

drinking water . . . and told me to use the

bathroom in a cup. . . . And I asked what for

and they said to see if I had enough fluid in

my system so they could send me home.

Nicholson Tr. 278:8-24, 280:6-16 (JA 899-900, 902).

Following this surreptitious search, Nurse Brown informed

her that she could either immediately enter inpatient

treatment at the hospital or face arrest. Nicholson Tr.

278:24-280:5 (JA 900-02). Although Ms. Nicholson

requested that she be permitted to return home and make

arrangements for her son’s care before entering treatment,

Nurse Brown refused and insisted that she begin treatment at

the hospital immediately. Nicholson Tr. 278:24-281:1 (JA

900-02). Ms. Nicholson remained in inpatient treatment for

thirty days, until her insurance expired. Nicholson Tr. 281:2-

282:13 (JA 902-04): After she was released, she stopped

seeking prenatal care for a period of time because of her fear

of the Search Policy. Nicholson Tr. 283:6-25 (JA 905-06).

11

B. Discretionary Decisions in Creating and

Implementing the Search Policy

Although the jurisdiction of the Solicitor and the police

extended to several hospitals in the Charleston area,

Respondents applied the Search Policy only at MUSC.

Roberts Tr. 16:24-17:10 (JA 1051-52); Schwake Tr. 12/9/96

137:13-16, 141:1-5 (JA 1118, 1122-23); Condon Tr. 50:19-

25 (JA 370-71); Durban Tr. 92:3-25 (JA 428-29); Greenberg

Tr. 137:12-18, 143:13-19 (JA 538, 539).8 Respondents also

designed the Policy to focus on cocaine to the exclusion of

other illegal or legal drugs that could harm the fetus. Patrick

Tr. 33:21-34:6 (JA 946); Brown Tr. 11/21/96 159:8-14 (JA

153); Newman 268:2-269:17 (JA 879-81); Good Tr. 198:11-

199:4; Roberts Tr. 15:22-16:7 (JA 1050-51). As hospital

physicians testified, although ingestion of heroin or alcohol

poses serious risks of fetal harm, the nine criteria established

by the task force members for searching pregnant women

were drafted specifically to uncover cocaine use. Newman

Tr. 268:2-269:17 (JA 879-81); Pittard 219:21-220:14 (JA

985-86); Horger Tr. 11:16-24, 13:19-25, 16:1-12 (JA 633,

635-36, 638-39); PX 1 (JA 1282).

The nine criteria for identifying which obstetrical patients

to search for cocaine allowed physicians to exercise virtually

unbridled discretion because the criteria included such vague

and malleable factors as pre-term labor “of no obvious

cause” and “incomplete prenatal care.” JX 2 at 1 (App. 53-

54). For instance, despite the incomplete prenatal care

category, the evidence shows that a woman described by

8 The court of appeals incorrectly asserted that the Solicitor and the

police had no authority to require other area hospitals to implement the

Search Policy and that they tried but failed to persuade other hospitals to

do so. See Ferguson, 186 F.3d at 480-81 &n.11. In fact, the record

reveals that neither Solicitor Condon nor any member of the police

department ever attempted to implement the Policy at the other hospitals

in Charleston even though their jurisdiction clearly included these

hospitals. Roberts Tr. 16:21-17:10 (JA 1051-52); Condon Tr. 50:19-25

(JA 370-71); Durban Tr. 72:6-11, 92:3-25 (JA 412, 428-29); Greenberg

Tr. 137:12-18, 143:13-19 (JA 538, 539).

12

Respondent Dr. Roger Newman as having had “very limited

prenatal care” was not searched. PX 19 at 2 (JA 1289).

Eventually, neonatologists were required to test infants

under the Search Policy as well. Patrick Tr. 41:2-17 (JA

948). As the Medical Director of the Neonatal Intensive

Care Unit iestified, testing was not being done for medical

reasons, but solely for purposes of the Search Policy. Jd.; see

also Chasnoff Tr. 15-17, 42 (discretionary criteria did not

“make medical sense”) (JA 284-88, 313-14). However,

despite the Policy’s mandate to test all infants within the

criteria, hospital physicians once again exercised discretion

~ and decided not to apply the Search Policy to newborns in

the intensive care unit who came to MUSC from other area

hospitals. Patrick Tr. 46:9-23, 50:22-51:2 (JA 949-50, 952-

53).

Hospital personnel also exercised discretion in enforcing

compliance with the Search Policy. Although the Policy

officially applied throughout the hospital, the record suggests

that it was enforced only at the high-risk clinic in the

obstetrics/gynecology department and not in the family

practice department or at other clinics within the hospital.

Clair Tr. 8:3-14, 13:17-15:10 (JA 328, 331-33); Pols Tr.

321:3-331:9, 326:9-327:8 (JA 997, 1003-05); Sanders Tr.

98:15-100:4 (JA 1100-02); PX 127 (JA 1301). Additionally,

Nurse Brown admitted that she called the Solicitor’s office

and requested another “chance” on behalf of a white patient

who should have been arrested under the Policy’s terms.

Brown Tr. 12/10/96 81:17-82:5 (JA 265-66).

The discretion accorded the Respondents by the Search

Policy resulted in a protocol that disproportionately targeted

indigent, African-American women for search and then

arrest. As the record demonstrates and as the court below

found, the disparity between the percentage of hospital

maternity patients recorded as positive for any drug who

were African-American (68%) and the percentage testing

positive for cocaine who were African-American (90%) was

sufficient to establish a prima facie case of disparate impact

discrimination. See Ferguson, 186 F.3d at 481; Shapiro Tr.

13

126:22-128:2 (App. 110-11). Ultimately, of the thirty

women arrested under the Policy, twenty-nine were African-

American.? Shapiro Tr. 187:15-17.!°

C. Lack of Search Warrants or Consent to Search

No search warrants or court orders were obtained before

women’s urine was collected and searched. Jury Charge at

18:15 (JA 1315). Patients did not provide specific consent

for searching their urine, nor did the hospital give any

. indication that its confidentiality policy, according to which

“medical records and all communication pertaining to

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

(App. 75), did not apply to these pregnant women. See, e.g.,

Griffin Tr. 27 (JA 567-68); Powell Tr. 149 (JA 1011-12);

Knight Tr. 121-22, 139 (JA 773-75, 783); Singleton Tr. 71

(JA 1145-46).

9 The trial court instructed Petitioners’ statistical expert to treat only 28 of

the 30 women arrested as African-American for purposes of his statistical

analysis because it ruled that Petitioner Joseph, who was 25 percent

African-American, should be considered white. Shapiro Tr. 178:1-14,

183:14-15. However, Nurse Brown considered Ms. Joseph to be Affrican-

American. PX 277 at CCPD-199. Additionally, even the trial court itself

was inconsistent in its references to Ms. Joseph’s race. See Findings of

Fact, Conclusions of Law, and Order (describing plaintiffs as “eight black

women, one white woman, and one woman who is multiracial”) (JA

1408).

10 The record demonstrates that Nurse Brown, who helped establish the

Search Policy and was integral to its everyday implementation, held racist

views. Good Tr. 206:1-6 (JA 514); Brown Tr. 11/21/96 14-15 (JA 84-

86). Nurse Brown admitted at trial that she believed that interracial

relationships were “agaist God’s way” and noted im the charts of

pregnant white women if their parmers were black. Brown Tr. 12/10/96

5:18-21, 64:4-66:25, 71:6-74:9 (JA 209, 250-57); M. Williams Tr. 132:7-

133:1 (JA 1195-96); PX 119 (Nurse Brown notation stating that “patient

live{s] with her boyfriend who is a Negro”); see also PX 120-123. She

also raised the option of sterilization for black women testing positive for

cocaine, but not for white women. M. Williams Tr. 128:9-129:5 (JA

1192-93).

14

As the district court correctly found, the hospital’s two

general consent forms were “not sufficient consent to warrant

a search where the search information is furnished to law

enforcement officers.” Jury Charge at 21 (JA 1318-19).

Even the hospital’s General Counsel admitted that he was

concerned that the consent forms were inadequate. Good Tr.

202:6-9 (JA 513).

All other forms related to the Search Policy were given to

the woman only after she had already been tested for

cocaine. These other forms did not seek either the patient’s

consent or authorization. For example, hospital staff showed

the “Solicitor’s Letters” to patients only after their urine was

tested for drugs, i.e., after the search was conducted. See,

e.g., Brown Tr. 11/21/96 50:7-14 (JA 114-15); Newman Tr.

279:24-280:7 (JA 886); see also JX 5-7 (letters stating

“{djuring your recent examination you tested positive for

drugs”) (JA 1261-66). Similarly, Respondents’ claim that all

patients receiving prenatal care at the hospital were shown

the “To Our Patients” letter, IX 10 (JA 1269-70), before they

were tested for cocaine, Brown Tr. 11/22/96 199-202 (JA

171-76); Newman Tr. 243:1-7 (JA 867), is belied by the

letter itself. JX 10 (stating if “we continue to detect evidence

of drug abuse’’) (emphasis added) (JA 1269-70). Nursing

notes for the only Petitioner whose medical record indicates

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

280 at BRO-WN-1415 (noting that Petitioner Pamela Pear

was “given letter from the Dept. of [ob/gyn]” after testing

positive).

D. Unauthorized Disclosure of Medical

Information

. Reports by hospital personnel constituted the sole means

by which the Solicitor’s Office and the police obtained the

results of the searches of Petitioners’ urine. Roberts Tr.

21:23-22:2 (JA 1055); Greenberg Tr. 132:15-16 (JA 534).

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. Brown Tr. 11/21/96 59:6-15 (JA

15

122). Nurse Brown then provided this information to law

enforcement officials; Solicitor’s Office employees actually

had access to her office where they could review her Rolodex

and other medical files. Brown Tr. 11/21/96 60:7-61:18,

109:4-13, 11/22/96 251:1-22 (JA 123-24, 147, 194-95);

Good Tr. 216:19-217:5 (JA 522); JX 1 at 2 (App. 50-51).

Neither the Solicitor’s Office nor the police had a search

warrant, subpoena, or court order for medical information

they obtained. Condon Tr. 86:8-13 (JA 388). They also

lacked court authorization to receive a copy of the patient’s

discharge summary, containing confidential medical

information such as the patient’s medical history, information

on sexually transmitted diseases, sterilization procedures and

HIV status. Nevertheless, the hospital provided this

document to the police officer who came to arrest the patient.

Good Tr. 217:6-218:6 (JA 522-23).

Patients testing positive were also tracked as part of the

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

which personnel from the Solicitor’s Office, the police, the

hospital, and the Department of Social Services discussed

suspected child abuse.!! The hospital sent confidential

medical information on the patients to be discussed, such as

HIV status and information on tubal ligations, to all members

of the SCAN team, including personnel from the Solicitor’s

Office and the police. Hildebrand Tr. 126:3-20 (JA 609-10);

Legare Tr. 312:1-313:18 (JA 794-97); PX 228-E; PX 178.

Information on each of the patients was disclosed without

their consent and without a warrant. Hildebrand Tr. 136:11-

16 (JA 613); Legare Tr. 313:16-24 (JA 796-97).

The patients testified that their experience in being

arrested based on searches conducted by the hospital

according to the Search Policy has caused them permanently

to distrust medical providers. See, e.g., Griffin Tr. 10:10-12

1! The SCAN meetings held at the hospital pre-dated the Search Policy

and were designed to coordinate the care of all children treated at MUSC

who medical staff suspected were abused or neglected. Hildebrand Tr.

124:9-125:20 (JA 607-09).

16 .

(JA 550); Singleton Tr. 73:2-13 (JA 1146-47); Ferguson Tr.

194:13-20 (JA 470). In fact, Petitioner Nicholson stated that

her fear of hospitals is so pronounced that she becomes “sick

to [her] stomach” when she seeks routine medical care and

must request others to accompany her on her medical visits.

Nicholson Tr. 298:22-299:22 (JA 912-13).

E. Grounds for Arrest

Under the Search Policy, women who tested positive for

cocaine could be arrested or threatened with arrest for the

crimes of possession of drugs, child neglect, or distribution

of drugs to a person under eighteen, depending upon the

point in pregnancy at which their cocaine use was

discovered.'? JX 2 at 11 (App. 62-63). The police had never

before applied these statutes to address a pregnant woman's

drug use, Roberts Tr. 13:19-25 (JA 1048), nor was any male

patient ever arrested by the police and charged with drug

possession based solely on a positive urine drug search. Jd.

at 50:6-13 (JA 1068). 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, Petitioner Joseph was

confronted by Nurse Brown and threatened under the Search

Policy when she was only thirteen weeks pregnant. PX 277

at 00-255, 00-256.

F. Arrests

As Captain Roberts testified, the hospital and the police

coordinated at every step of the process that led to a pregnant

woman’s arrest. Roberts Tr. 17:11-15 (JA 1052). Nurse

Brown would call the police, 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.

Brown Tr. 11/21/96 91:3-20 (JA 141-42); Roberts Tr. 23:12-

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

carries a maximum sentence of two years for first offense); id § 20-7-510

(criminal child neglect felony carries maximum penalty of 10 years); id §

44-53-440 (distribution of drugs to persons under 18 carries maximum

sentence of 20 years).

17

24:19 (JA 1057-58); Waring Tr. 132:3-16 (JA 1161-62).

Indeed, at least one Petitioner was detained in the hospital

after she was medically ready to leave in order to facilitate

her arrest by the police. P. Williams Tr. 223:11-224:4 (JA

1214-15); see also Henry Tr. 120:10-123:18.

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., Singleton Tr. 61:11-14,

68:22-24, 69:5-8 (JA 1135-36, 1/143); Powell Tr. 152:2-11;

157:4 (JA 1014-15, 1020); Knight Tr. 124:20-125:17 (JA

777-78); Griffin Tr. 11:9-12:4 (JA 551-52). Some women

were arrested while still bleeding, weak and in pain from

having just given birth. £.g., Singleton Tr. 68:1-69:8 (JA

1142-43); Powell Tr. 153:7-20, 155:8-16 (“I pretty much

couldn’t move on my own”) (JA 1016, 1018); Knight Tr.

125, 136:10-13 (arrested while bleeding heavily from her

first vagiual childbirth and still vomiting) (JA 777-78, 782).

Some women were put in handcuffs that were attached to a

chain that circled their abdomens. £.g., Griffin Tr. 9:12-25

(JA 549). Some were also placed in leg shackles when they

were taken into custody. £.g., Singleton Tr. 62:1-11 (JA

1136); Griffin Tr. 8:11-9:21 (JA 547-49); Ferguson Tr.

190:2-6 (JA 465). A blanket or sheet would be placed over

the woman, and she would be wheeled out of the hospital to a

waiting police car and transported to jail. E.g., Singleton Tr.

62-64 (JA 1136-39); Powell Tr. 154:2-156:24 (JA 1017-19);

Griffin Tr. 10 (JA 549-50); Knight Tr. 126 (JA 778-79).

IV. The Search Policy Was Not Effective in Improving

Fetal Health.

The Search Policy did not reduce cocaine use, improve

pregnancy outcomes, 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

18

terminated, but no such increase took place. Patrick Tr.

49:22-50:21 (JA 951-52).

The Search Policy’s failure to promote fetal health

stemmed from its faulty design. As Dr. Ira Chasnoff, a

nationally recognized expert on substance abuse and

pregnancy, and Respondents’ own neonatologists testified,

focusing on cocaine use alone is unlikely to improve a

pregnancy’s outcome because of the multitude of factors

contributing to a baby’s health. Chasnoff Tr. 12:9-24 (JA

281-82); Horger 45:13-24 (JA 673). Moreover, numerous

studies have shown that punitive programs drive women

away from prenatal care and treatment programs and thus do

not improve pregnancy outcomes for either mother or child. !°

Chasnoff Tr. 23:22-24:11 (JA 293); Jessup Tr. 89:11-97:2,

115:12-118:7 (JA 711-21, 722-26). In fact, because of Dr.

Chasnoff’s expertise, Respondents consulted him about the

Search Policy’s creation but then ignored his warning that

such a punitive program could never improve fetal health.

Chasnoff Tr. 29-31 (JA 297-301).

Indeed, the Search Policy’s focus on cocaine to the

exclusion of other drugs, legal or illegal, is medically

senseless. As numerous witnesses for both Petitioners and

Respondents testified, heroin, alcohol, and amphetamines

also pose risks of harm to the fetus. Chasnoff Tr. 12-15 (JA

13 Respondents suggest that the Search Policy was necessary because

prior to its inception pregnant women were not attending substance abuse

treatment voluntarily. See Opp. to Pet. for Cert. at 4. However, as

Respondent Horger admitted, this belief was based solely on Nurse

Brown’s perceptions. Horger Tr. 18:16-19:17 (JA 641-42). In fact, prior

to adopting the Search Policy, the hospital had no formal tracking system

to document whether women attended substance abuse treatment and no

employee in the obstetrics/gynecology department who was trained in

making substance abuse referrals. Horger Tr. 20:17-21:17 (JA 644-45).

Respondents’ own expert testified that the information he reviewed from

the hospital about women’s willingness to attend treatment before

implementation of the Search Policy would not be the kind reasonably

relied upon by experts in his field because it included no systematic

accounting of patients. Kebler Tr. 847:3-848:5 (JA 766-68).

19

281-85); Frank Tr. 952:12-23 (JA 486); Horger Tr. 44-47 (JA

671-75); Newman Tr. 202-203, 267-272 (JA 841-43,878-

85); Pittard Tr. 219:21-220:14 (JA 985-86). From a medical

standpoint, if Respondents had wished to target the one drug

that is most harmful to fetal health, they should have focused

on tobacco, not cocaine. Chasnoff Tr. 13:6-19 (JA 282).

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

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. This

Court granted certiorari on February 28, 2000.

SUMMARY OF AR NT

The searches at issue in this case were conducted without

warrants or individualized suspicion and thus violated the

Constitution unless Respondents established that Petitioners

provided valid consent. But rather than examining whether

the Petitioners had provided valid consent to the searches, the

court below held that the warrant and probable 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

14 Petitioners did not seek certiorari on these three claims.

20

searches, arrests and prosecutions. See Ferguson v. City of

Charleston, 186 F.3d 469, 476 (4th Cir. 1999). The “special

needs” balancing test, applied by the Fourth Circuit, has

never before been applied to a search primarily serving the

normal needs of law enforcement and has never been applied

to searches of citizens, such as the Petitioners, whose

reasonable expectation of privacy is undiminished.

The court of appeals’ reliance on this Court’s line of

cases authorizing checkpoint seizures, see Ferguson, 186

F.3d at 477 n.7 (citing Michigan Dep’t of State Police v. Sitz,

496 U.S. 444, 451-55 (1990)), is misplaced. The searches

here -- discretionary searches of the patients’ urine in the

context of a supposedly confidential medical visit --bear no

relationship to and were much more invasive than the brief

stops for questioning and observation conducted pursuant to

a nondiscretionary checkpoint program. See Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989)

(“There are few activities in our society more personal or

private than the passing of urine.”’) (internal citiation

omitted).

Moreover, application of the “special needs” exception to

such searches is not only unprecedented, but would swallow

whole the Fourth Amendment’s requirements of a warrant

and probable cause. Because nearly every application of the

criminal law serves some other vital public health or safety

purpose, ““[n]o consideration relevant to the Fourth

Amendment suggests any point of rational limitation” on the

special needs exception under the Fourth Circuit’s reasoning.

Mincey v. Arizona, 437 U.S. 385, 393 (1978) (quoting

Chimel v. California, 395 U.S. 752, 766 (1969)). Under such

a broad interpretation of the special needs exception, Fourth

Amendment protection “would approach the evaporation

point.” See Chimel, 395 U.S. at 765.

This Court has rejected numerous similar attempts to do

away with the warrant requirement in the service of the

21

“public interest.” For example, this Court held that the “vital

public interest in the prompt investigation of’ serious crimes,

even the crime of murder, does not justify disregard of the

Fourth Amendment. Mincey, 437 U.S. at 394 (“the

seriousness of the offense under investigation” cannot justify

warrantless searches); see also Flippo v. West Virginia, 120

S. Ct. 7, 8 (1999). Nor is disregard of the Fourth

Amendment justified by the “mere fact that law enforcement

may be made more efficient.” Mincey, 437 US. at 393.

Similarly here, the state’s interest in the health of viable

fetuses, even if those interests were served by this Search

Policy, which they were not, see supra pp. 17-18, does not

justify the Fourth Circuit’s decision to scrap the warrant

requirement in toto.

Finally, the Fourth Circuit’s approach would reduce the

Fourth Amendment to a balancing test, in which the extent of

the invasion of privacy is weighed against the state interests

served by the search. In such an equation, the rights of the

individual will almost always bend to the interests of the

State, leaving citizens with no assurance of privacy in their

homes or persons.!> Ironically, Fourth Amendment

protections would disappear in all cases except where the

public interest is negligible, such as, perhaps, in investigation

of very minor offenses. But as Justice Brandeis noted,

protections of the Fourth Amendment are the most important

where the stakes are highest:

[I]t is [] smmaterial that the intrusion was in

aid of law enforcement. Experience should

15 As this Court has noted, the warrant requirement “provides the

detached scrutiny of a neutral magistrate,” ensures an “objective

determination whether an intrusion is justified,” and thus serves to protect

citizens from arbitrary and discriminatory searches. Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602, 622 (1989); see also Katz v.

United States, 389 U.S. 347, 358 (1967); Johnson v. United States, 333

U.S. 10, 13-14 (1948).

22

teach us to be most on our guard to protect

liberty when the Government’s purposes are

beneficent. Men born to freedom are naturally

alert to repel invasion of their liberty by evil-

minded rulers. The greatest dangers to liberty

lurk in insidious encroachment by men of

zeal, well-meaning but without understanding.

Olmstead v. United States, 277 U.S. 438, 479 (1928)

(Brandeis, J., dissenting).

ARGUMENT

I. The Searches of the Patients’ Urine for Evidence of

Crime Violated the Fourth Amendment.

The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons . . . against unreasonable

searches and seizures.” U.S. CONST. amend. IV. It is well-

settled that “government ordered ‘collection and testing of

urine intrudes upon expectations of privacy that society has

long recognized as reasonable,’” and thus effects a search of

the person subject to the demands of the Fourth Amendment.

Chandler v. Miller, 520 U.S. 305, 313 (1997) (quoting

Skinner, 489 U.S. at 617). Because the urine drug screens

ordered in this case are searches under the Fourth

Amendment, the question is whether the searches were

reasonable.

“Over and again,” this Court has emphasized that a

search conducted without a warrant issued upon probable

cause, like the urine drug screens at issue in this case, is per

se unreasonable, “subject only to a few specifically

established and well-delineated exceptions.” Katz v. United

States, 389 U.S. 347, 357 (1967) (internal quotations

omitted); see also Flippo, 120 S. Ct. at 8; Chandler, 520 U.S.

at 313; Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

23

The only exception to the warrant requirement asserted by

Respondents in this case was consent.!®

Although the court below recognized the proposition that

the Fourth Amendment generally requires a warrant and

probable cause as prerequisites to a reasonable search in the

process of law enforcement and recognized the integral

involvement of law enforcement in developing and

implementing the Search Policy here, see Ferguson, 186 F.3d

at 477 n.7; see also id. at 484 (Blake, J., dissenting), it held

that a search that was “motivated” by a desire to protect

health falls outside the Fourth Amendment’s protections. See

id. at 475 n.3. Instead of examining whether the patients

provided valid consent to the searches, the court of appeals

held that these searches were “reasonable” under the “special

needs” exception to the Fourth Amendment’s requirement of

warrants and probable cause.

But this Court has repeatedly refused to dispense with the

warrant and probable cause requirements to uphold the

constitutionality of suspicionless searches of free citizens as a

part of law enforcement, even where there is a strong health

or safety governmental interest. For example, this Court has

held that neither the vital public interest in the prompt

investigation of serious crime nor the laudable goal of

increasing the efficiency of law enforcement can justify

dispensing with the requirements of individualized suspicion.

Flippo, 120 S. Ct. at 8 (rejecting “murder scene exception” to

warrant requirement); Mincey, 437 U.S. at 393-94.

Similarly, the Court has rejected application of the “special

needs” exception to the warrantless search of a person’s

home in the aftermath of the fire, even where the search

16 Although the jury found that Petitioners had consented to the searches

of their urine, no fair analysis of the evidence can support such a

conclusion, as this brief’s recitation of the facts demonstrates. See supra

pp. 13-14. By applying the “special needs” exception, the court of

appeals avoided deciding the issue of consent entirely.

24

serves the important public interest of determining the cause

of the fire. Michigan v. Clifford, 464 U.S. 287, 292 (1984).

Thus, the court of appeals’ application of the “special

needs” exception to searches serving normal law

enforcement needs -- searches for evidence of crime --

contradicts this Court’s Fourth Amendment jurisprudence

and would render the Warrant Clause a “dead letter.”

Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 673 (1995)

(O’Connor, J., dissenting).

A. The Searches Here Do Not Fall Within the

“Closely Guarded” Exceptions to the Fourth

Amendment’s Requirements of Warrants and

Probable Cause.

This Court has held that “‘in certain limited

circumstances,” Chandler, 520 U.S. at 308 (quoting

National Treasury Employees Union v. Von Raab, 489 U.S.

656, 668 (1989)), the warrant and probable cause

requirements may be disregarded and the “reasonableness” of

a search or seizure may be determined using a balancing test.

However, the Court has limited the cases in which such a

balancing test replaces the requirements of warrant* and

probable cause to “closely guarded” categories. These

limited exceptions include searches serving “special needs”

beyond the normal need for law enforcement where the

subject searched has a reduced expectation of privacy; and

limited “seizures” made at highway checkpoints. See id. at

308, 311.!7

The searches here fit into none of these categories and

thus violate the Fourth Amendment. First, since New Jersey

v. T.L.O., 469 U.S. 325 (1985), this Court has applied the

“special needs” exception only to searches that have met all

17 See also Michigan v. Clifford, 464 U.S. 287, 291-92 & 292 n.2 (1984)

(administrative search of a private home to investigate the cause and

origin of a fire did not fall within one of “carefully defined classes of

cases” in which exceptions to the warrant requirement applied).

25

four factors identified by Justice Blackmun!* and that have

been conducted in situations in which there is a reduced

expectation of privacy. Neither is true here. Second, the

seizures at issue in the checkpoint cases are completely

distinguishable from the searches of the patients’ bodies at

issue in this case.

1. The Special Needs Exception Is

Inapplicable Where, as Here, the Law

Enforcement Purpose Is Integral to the

Searches.

This Court has held that “particularized exceptions to the

main rule are sometimes warranted based on ‘special needs,

beyond the normal need for law enforcement.’” Chandler,

520 U.S. at 313 (emphasis added) (quoting Skinner, 489 U.S.

at 619); see also Acton, 515 U.S. at 653; id. at 673

(O’Connor, J.,dissenting); Von Raab, 489 U.S. at 665-66;

Skinner, 489 U.S. at 619; 7.L.0., 469 U.S. at 356 (Brennan,

J., concurring in relevant part). This Court has given some

significant content to the requirement that the search program

serve needs “beyond the normal need for law enforcement.”

Properly interpreted, “beyond the normal need for law

- enforcement” excludes cases in which an integral purpose of

the search is arrest and prosecution; law enforcement

involvement is tolerated only if it is incidental in nature and

not pervasive or built into the design and implementation of

the program.!9 For example, this Court has upheld as

reasonable searches of public school children that led to

school disciplinary action, 7.L.O., 469 U.S. at 343; Acton,

18 The four factors are: 1) that the need is “special,” see Chandler v.

Miller, 520 U.S. 305, 322 (1997); 2) that the need is “beyond the normal

need for law enforcement,” see, e.g., National Treasury Employees Union

v. Von Raab, 489 U.S. 656, 665 (1989); 3) that the warrant requirement is

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

cause requirement is impracticable, see, e.g., id. at 631.

19 Respondents do not contend otherwise. Instead, they argue that the

claimed non-law enforcement purpose here was the “primary focus” of

the policy, and not a pretext. Opp. Cert. at 26-27, 21.

26

515 U.S. at 664-65, searches of employees for employment

purposes or where the employees participate in an industry

that is “regulated pervasively to ensure safety,” Skinner, 489

U.S. at 627; see also Von Raab, 489 U.S. at 677, searches of

probationers for supervisory purposes, Griffin v. Wisconsin,

483 U.S. 868, 880 (1987), and administrative inspections of

businesses in “closely regulated” industries, New York v.

Burger, 482 U.S. 691, 703-04 (1987); United States v.

Biswell, 406 U.S. 311, 316 (1972). In such cases, the

reasonableness of a search is evaluated using a balancing test

rather than by determining whether a warrant based on

probable cause was obtained. See Von Raab, 489 U.S. at

665-66; see also Chandler, 520 U.S. at 314 (“context-

specific 1 inquiry, examining closely the competing private and

public interests advanced by the parties” appropriate in

“special needs” case); Acton, 515 U.S. at 652-53

(reasonableness of search in special needs case “is judged by

balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legitimate

governmental interests”’) (internal citations omitted).

In Von Raab, Skinner, and Acton, this Court applied the

special needs exception only after noting that the searches at

issue were not part of a law enforcement program and that

the results of the searches could not be disclosed to law

enforcement. See Acton, 515 U.S. at 651 (“[o]nly the

superintendent, principals, vice-principals, and athletic

directors have access to test results, and the results are not

kept for more than one year”); 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”); Skinner, 489 U.S. at 621 n.5, 626 n.7 (where the

respondents had claimed that the test results might be used

by the police, Court noted that nothing in the record indicated

that government would use test results for other than

employment purposes).

Ps a eC AP ar

27

Where law enforcement did become involved in searches,

the “special needs” exception has only been applied where

that involvement was incidental to the primary purpose of the

search, and most often where law enforcement involvement

occurred only after the search. The law enforcement purpose

for the search was either non-existent or clearly secondary to

the non-law enforcement purpose of the search. For

example, in 7.L.0., where the contents of a student’s purse

which had been searched by a school principal because of

evidence of a violation of the school’s no-smoking policy

were turned over to the police, this Court stressed:

We here consider only searches carried out by

school authorities acting alone and on their

Own authority. 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.

T.L.O., 469 U.S. at 342 n.7. Similarly, in Burger, this Court

applied the special needs balancing test to uphold an

administrative inspection of a commercial property employed

in a “‘closely regulated’ industr[y].” 482 U.S. at 700.

Although this Court acknowledged that the search to enforce

an administrative scheme might also uncover evidence of a

crime, this Court stressed that the search was reasonable only

where the administrative scheme in question was not being

used as a ““pretext’ to enable law enforcement authorities to

gather evidence of penal law violations.” Jd. at 716 n.27.7°

In contrast here, the search by hospital personnel was indeed

20 See also Whren v. United States, 517 U.S. 806, 811-12 (1996)

(“exemption from the need for probable cause (and warrant), which is

accorded to searches made for the purpose of inventory or administrative

regulation, is not accorded to searches that are not made for those

purposes”).

28

conducted “in conjunction with” and “‘at the behest of’ law

enforcement agencies. Cf. T.L.O., 469 U.S. at 342 n.7.?!

This Court’s rulings on the legality of administrative

searches with overlapping law-enforcement and non-law-

enforcement purposes are instructive here as well. In those

cases, even where the search is for non-law enforcement

purposes, a warrant is still required, although the warrant

requirements differ depending on the purpose of the search.

For example, in Clifford, 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. 464

U.S. at 294.22 Noting that “the object of the search

determine[d] the type of warrant required,” 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 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.

21 New York v. Burger is further distinguishable from this case because of

the “‘unique’ problem” it addressed, the “long tradition of close

government supervision” of such industries, and the significantly reduced

expectation of privacy that results therefrom. 482 U.S. 691, 700 (1987);

see also infra pp. 33-36. Indeed, the doctrine allowing such searches was

first articulated in Colonnade Catering Corp. v. United States, 397 U.S.

72 (1970), and United States v. Biswell, 406 U.S. 311 (1972), predating

the “special needs” cases.

22 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. See Clifford, 464 U.S. at

294.

29

Id. (emphasis added). Here, the record demonstrates that the

primary object of the search was to obtain evidence of

criminal activity.

In the only “special needs” case that allowed some level

of law enforcement involvement, Griffin, this Court allowed

a warrantless search by a probation officer pursuant to

probation regulations allowing a search of a probationer’s

home for firearms. 483 U.S. at 870-71. Importantly, the

search for firearms in Griffin served the “special need” of

ensuring compliance with those regulations and not the

“normal” law enforcement need of finding evidence of

violation of a separate crime. Thus, as this Court noted,

Griffin’s holding was limited to a search of a probationer

pursuant to a “valid regulation” and did not address whether

“any search of a probationer’s home by a probation officer is

lawful when there are ‘reasonable grounds’ to believe

contraband is present.” Jd. at 880. In this case, by contrast,

the searches were specifically formulated and implemented

for the purpose of “obtaining evidence for use in criminal .. .

enforcement proceedings.” See O’Connor v. Ortega, 480

U.S. 709, 721 (1987) (plurality opinion).”

23 Moreover, Griffin is also distinguished from this case because the

previous finding of guilt and the supervisory relationship between

probationer and State justifies “a degree of impingement upon [a

probationer’s] privacy that would not be constitutional if applied to the

public at large.” Griffin, 483 U.S. at 875; see also Pennsylvania Bd. of

Parole v. Scott, 524 U.S. 357 (1998) (exclusionary rule inapplicable in

parole revocation proceedings); Ferguson, 186 F.3d at 486 (Blake, J.,

dissenting). Indeed, this Court suggested, without deciding, that the

constitutional rights of probationers might be as limited as those of

prisoners. Griffin, 483 U.S. at 874 n.2 (noting that probation regulations

might be subject to the same “reasonably related to legitimate penological

interests’” test as are prison regulations). Unlike probationers, the

patients here had, if anything, a heightened expectation of privacy in their

medical information. See infra pp. 33-36.

30

2. Because Law Enforcement Played an

Integral Role in the Searches at Issue

Here, the Special Needs Exception

Cannot Be Applied to Excuse the Lack

of Warrants or Individualized

Suspicion.

In this case, a central purpose of the Search Policy was to

“search for evidence qua evidence,” see United States v.

Colyer, 878 F.2d 469, 478 (D.C. Cir. 1989), in furtherance of

arrests for crimes. See supra pp. 2-6. The searches served

the normal needs of law enforcement: detection of crime and

preservation of evidence to facilitate arrest and prosecution.

Id.

The court of appeals attempted to counter the

overwhelming evidence that the Search Policy served the

normal needs of law enforcement by pointing to the

Respondents’ testimony indicating that some women were

“diverted” into treatment under the Policy. See Ferguson,

186 F.3d at 474 n.3. Rather than serving non-law

enforcement needs, diversion from prosecution into treatment

programs is a normal part of the law enforcement process in

South Carolina and thus actually serves law enforcement

goals. As Respondent Condon testified, this “carrot and

stick” approach, diverting people into treatment by

threatening jail, was part of the “norms and standards of the

solicitor’s office” for first-time nonviolent offenders and was

used for “general drug cases, simple possession cases, small

property offenses.” Condon Tr. 23:4-24:4 (JA 357-58).

The court below clearly struggled with its application of a

balancing test to the searches here, because it recognized that

law enforcement was involved from the Policy’s inception.

Ferguson, 186 F.3d at 477 n.7 (“law enforcement officers

were involved in the fomulation of the policy”). In an

attempt to resolve this conflict, the court first characterized

the policy as “motivated by a desire to protect the health of

31

the children born at MUSC,” as if the existence of some

benevolent purpose could render irrelevant the significant

law enforcement purpose. Ferguson, 186 F.3d at 473 n.3

(denying that the policy was “animated by a vindictive

purpose to prosecute women who used cocaine during

pregnancy”). Of course, just as malevolent “ulterior

motives” cannot invalidate an otherwise objectively

justifiable search, neither can benevolent motives justify an

objectively unreasonable one. Cf. Whren v. United States,

517 U.S. 806, 811-13 (1996). Moreover, perhaps reflecting

its discomfort with this analysis and its recognition of the

lack of any similar law enforcement involvement in the other

“special needs” cases, the court was forced to reach outside

the special needs context and to rely on this Court’s decision

in Sitz to justify dispensing with the warrant requirement.

Ferguson, 186 F.3d at 477 n.7 (citing Sitz, 496 U.S. at 451-

55).74

Thus, the court below side-stepped the overwhelming

evidence of law enforcement involvement, see discussion

supra pp. 2-6, examining neither whether the primary object

of the searches 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.

Instead, the court held blithely that “the involvement of law

enforcement officers does not make a special needs analysis

inappropriate.” Ferguson, 186 F.3d at 477 n.7.

If the Fourth Circuit’s reliance on the Respondents’

claimed benevolent motivation as a means of avoiding the

settled requirements of a warrant and individualized

suspicion for law enforcement searches is upheld, the

Warrant Clause would be a “dead letter.”” Acton, 515 U.S. at

673 (O’Connor, J., concurring). There is virtually no

criminal law that is administered exclusively to achieve

24 Sitz is inapplicable to this case for the reasons outlined below. See

infra pp. 36-40.

32

punishment for its own sake. Drug prosecutions seek to

suppress social evils, but so do laws against gambling,

robbery, and embezzlement. Prosecutions for violations of

income tax laws protect the public fisc, laws which punish

polluters or protect wetlands guard the environment, and

criminal sanctions against securities fraud guard investor

confidence. Yet it cannot be the case that a motive to protect

the public welfare removes the protections of the Fourth

Amendment. See Mincey, 437 U.S. at 393. As Justice

O’Connor wrote in Acton:

[I]t remains the law that the police cannot,

say, subject to drug testing every person

entering or leaving a certain drug-ridden

neighborhood in order to find evidence of

crime. And this is true even though it is hard

to think of a more compelling government

interest than the need to fight the scourge of

drugs on our streets and in our neighborhoods.

Nor could it be otherwise, for if being

evenhanded were enough to justify evaluating

a search regime under an open-ended

balancing test, the Warrant Clause, which

presupposes that there is some category of

searches for which individualized suspicion is

nonnegotiable, . .. would be a dead letter.

Acton, 515 U.S. at 673 (O’Connor, dissenting) (emphasis

added) (internal citations omitted).

Two other factors bring this case outside the special

needs exception. First, as with the drug testing program at

issue in Chandler, the Search Policy serves a “symbolic”

rather than “special” need. See 520 U.S. at 322; see also Von

Raab, 489 U.S. at 681 (Scalia, J., dissenting). The program

here demonstrates “symbolic opposition to drug use,” but

because of its faulty design, see supra pp. 17-18, it “lacked a

real capacity” to protect the health of fetuses or improve

33

pregnancy outcomes. Accordingly, Respondents were unable

to establish any “real evidence of a real problem that will be

solved” by the Search Policy. Cf Von Raab, 489 U.S. at 681

(Scalia, J., dissenting).

Second, Respondents have not shown that the “warrant

and probable cause requirement [was] impracticable.” See

Acton, 515 US. at 653 (quoting Griffin, 483 U.S. at 873).

The Fourth Circuit ignored this important inquiry. The

reasons this Court has given for dispensing with the warrant

or individualized suspicion requirements — e.g., immediacy

of the need in Skinner, 489 U.S. at 623-34, and 7.L.0., 469

U.S. at 340, and frustrating the routine conduct of business in

O’Connor, 480 U.S. at 722 — are absent here, where there

was ample opportunity to present evidence of probable cause

to a judicial officer.

3. The Special Needs Exception Is

Inapplicable Because the Patients’

Expectation of Privacy Was

Undiminished.

The Petitioners entered the care of the hospital as free

citizens. They were assured by the hospital that their medical

records would be “treated as confidential,” PX 105

(hospital’s patient handbook guaranteeing confidentiality)

(App. 75), and were treated by physicians who by

generations of practice regarded their patients’ confidences

as a sacred trust. See, e.g., Hippocratic Oath (quoted in

Albert R. Jonsen et al., Clinical Ethics 166 (4th ed. 1998))

(“[A]nd whatsoever I shall see or hear in the course of my

profession, . . . if it be what should not be published abroad, I

will never divulge, holding such things to be holy secret.”’).

Yet the court below held that “special needs” justified testing

them for evidence of cocaine use without their consent and

conveying the results of those tests to law enforcement

officials. This holding is entirely at odds with the “special

needs”’ doctrine established by this Court.

34

Even in cases involving searches with no law

enforcement involvement whatsoever, this Court only applies

the “special needs” exception to uphold suspicionless

searches when the citizens searched have a diminished

expectation of privacy. As this Court wrote in T.L.0O.:

[e]xceptions to the requirement of

individualized suspicion are generally

appropriate only where the privacy interests

implicated by a search are minimal and where

“other 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.””

469 U.S. at 342 n.8 (citation omitted). Similarly, in Skinner,

when applying the “special needs” exception, this Court

emphasized that “[m]Jore importantly, the expectations of

privacy of covered employees are diminished by reason of

their participation in an industry that is regulated pervasively

to ensure safety, a goal dependent, in substantial part, on the

health and fitness of covered employees.” 489 U.S. at 627;

see also Burger, 482 U.S. at 700 (noting that “[ajn

expectation of privacy in commercial premises, however, is

different from, and indeed less than, a similar expectation in

an individual’s home. . . . This expectation is particularly

attenuated in commercial property employed in ‘closely

regulated’ industries.”) (internal citation omitted). Indeed, in

Burger, this Court noted that “[c]ertain industries have such a

history of government oversight that no reasonable

expectation of privacy . . . could exist for a proprietor over

the stock of such an enterprise.” Jd. (emphasis added); see

also T.L.O., 469 U.S. at 348 (Powell, J., concurring)

(“{S]tudents within the school environment have a lesser

expectation of privacy than members of the population

generally.”’).

3

Moreover, that warrants are required for administrative

searches, see Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)

(administrative search warrant required for administrative

search); Camara v. Municipal Court, 387 U.S. 523 (1967)

(same); See v. City of Seattle, 387 U.S. 541 (1967) (same),

shows the importance of the searched population’s

expectation of privacy. The only difference between those

administrative search cases and non-law enforcement special

needs cases is the reduced expectation of privacy of the

citizens searched in the latter. As this Court noted im holding

that the “special needs” exception did not apply to the

administrative search of a private home to investigate a fire,

“i]f reasonable privacy interests remain in the fire-damaged

property, the warrant requirement applies. .. .” Clifford, 464

U.S. at 292-93.25

Women seeking medical care at public hospitals do not

have a reduced expectation of privacy; instead, they have, if

anything, a heightened expectation of privacy with respect to

their medical care and records. See Whalen v. Roe, 429 U.S.

589, 599 (1977) (constitutional right to privacy “in avoiding

disclosure of personal matters” well-established). Given this

heightened expectation of privacy, dispensing with the

Fourth Amendment’s warrant and probable cause

25 Where such a reduced expectation of privacy does exist, this Court has

reasoned that “the warrant and probable-cause requirements, which fulfill

the traditional Fourth Amendment standard of reasonableness for a

government search, . . . have lessened application ...” Burger, 482 U.S.

at 702; see also New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (“the

warrant requirement, in particular, is unsuited to the school environment”

and would “unduly interfere with the maintenance of the swift and

informal disciplinary procedures needed in the schools.”); Vernonia Sch.

Dist. v. Acton, 515 U.S. 646, 653 (1995) (“{TJhe warrant requirement

‘would unduly interfere with the maintenance of the swift and informal

disciplinary procedures [that are] needed,’ and ‘strict adherence to the

requirement that searches be based upon probable cause’ would undercut

‘the substantial need of teachers and administrators for freedom to

maintain order in the schools.’”) (quoting 7:L.O., 469 U.S. at 340, 341).

36

requirements by expanding the “special needs” exception to

cover pregnant women seeking medical care is especially

pernicious. And the perniciousness of the approach of the

court below is magnified because of the highly invasive

nature of the searches at issue here, namely searches of the

patients’ urine. See Bond v. United States, 120 S. Ct. 1462,

1464 (2000) (“[p]hysically invasive inspection is simply

more intrusive than purely visual inspection”); Wyoming v.

Houghton, 526 U.S. 295, 303 (1999) (discussing “the unique,

significantly heightened protection afforded against searches

of one’s person”); Skinner, 489 U.S. at 617 (“there are few

activities in our society more personal or private than the

passing of urine’’) (citations omitted). The Fourth Circuit

relegates pregnant women in their doctors’ offices to a status

comparable to that occupied by convicted criminals on

probation, leaving them with less protection under the Fourth

Amendment than motorists in their cars.”°

4. This Court’s Jurisprudence

Authorizing Checkpoint Seizures Is

Inapplicable to the Searches Conducted

in This Case.

The court below relied on Michigan Dep’t of State Police

v. Sitz, 496 U.S. 444 (1990), to justify application of the

26 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] on a 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.”); id. 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. . . . [I]f 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.”).

37

special needs exception to this case, pointing to the law

enforcement involvement in the Sitz checkpoint. See

Ferguson, 186 F.3d at 477 n.7. This Court has approved

brief stops, or “seizures,” for questioning or observation at

- fixed checkpoints, such as border patrol checkpoints, United

States v. Martinez-Fuerte, 428 U.S. 543, 545-50, 566-67

(1976), or sobriety checkpoints, Sitz, 496 U.S. at 447, 455,

despite the absence of a warrant or individualized suspicion.

But the court below misapplies checkpoint seizure cases to a

case involving searches of persons.

First, although the Fourth Circuit referred to Martinez-

Fuerte and its progeny as “special needs” cases, in Sitz, this

Court carefully distinguished the two and did so specifically

on the grounds that the heavy involvement of law

enforcement precluded any potential finding that the program

served needs “beyond the normal need” for law enforcement.

In that case, this Court excused the government’s failure to

demonstrate a “special governmental need “beyond the

normal need’ for criminal law enforcement,” distinguishing

between the checkpoint cases, which predated the Court’s

articulation of the “special needs” exception, and the special

needs cases. The Court held that Martinez-Fuerte and the

other checkpoint cases, and not Von Raab, “are the relevant

authorities here.” Sitz, 496 U.S. at 450. This is a further

indication that the heavy involvement of law enforcement

that was tolerated in the Sitz checkpoint should not be

tolerated in a Von Raab special needs case, contrary to the

decision of the court below. As the Solicitor General of the

United States wrote recently in distinguishing between the

drug testing cases and checkpoint seizure cases,

[t]he drug testing cases involve both a search

and seizure of an individual and one that

implicates a uniquely personal activity. If

such personal intrusions were permitted for

routine crime detection, it would do much to

38

fe

tree the

per ie

undermine the general principle of the Fourth

Amendment that intrusions on the person

require some individualized suspicion.

rer

PAWS RSE Re OAM oe

Brief for United States as Amicus Curiae Supporting

Petitioners at 21-22, City of Indianapolis v. Edmond, No. 99-

1030 (“United States’ Edmond Br.”’).

Second, 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. 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.” Jd. at 451 (citation

omitted). Unlike a checkpoint “seizure,” the searches here

were highly particularized and discretionary and much more

extensive than an “observation” — they were targeted

searches of the bodily fluids of certain women at a specific

hospital. Accordingly, as the Solicitor General notes:

_

“[W]arrantless examinations of automobiles

have been upheld in circumstances in which a

search of a home or office would not”. . .

because of the “obviously public nature of

automobile travel” . . . [and the fact that]

automobiles, unlike homes or offices, are

subject to a “web of pervasive regulation.”

United States’ Edmond Br. at 8-9 (internal citations

omitted).

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

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

warrant and individualized suspicion requirements that

39

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

“checkpoints removed from the border and its functional

equivalents, officers may not search private vehicles without

consent or probable cause.” 422 U.S. at 896-97; see also

Houghton, 526 U.S. at 303 (cases involving searches of one’s

person do not govern searches during automobile stops).

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, a warrant, or probable cause.

Finally, the Search Policy’s allowance for discretion

takes it completely outside the bounds of Sitz — and outside

the bounds of the “special needs” exception. The

randomness and universality of the checkpoints in Sitz

rendered the traffic stops constitutional by preventing any

abuse of discretion. Similarly, the “special needs” exception

only applies to policies authorizing non-discretionary

searches. See 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, “standardless and unconstrained discretion is the evil the

Court has discerned. . . .” 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.

The court of appeals acknowledged this rule but erred in

asserting that the Search Policy at issue here involved such

neutrality. See Ferguson, 186 F.3d at 479. First,

_ Respondents exercised significant discretion in choosing to

enforce the Search Policy only at MUSC and only as to

cocaine, even though the Solicitor’s jurisdiction over child

abuse and drug violations extended to other hospitals in

Charleston and to other drugs. See supra p. 11. Second,

although as the court below notes, “the urine drug screens

[on pregnant women] were conducted whenever one of the

40

criteria for testing was met,” Ferguson, 186 F.3d at 479,

physicians exercised their discretion in determining when a

patient in fact satisfied the criteria.2”7 For example, Dr.

Newman described a patient with “very limited pre-natal

care” who was not searched under the Search Policy despite

the fact that one of the criteria for testing was “inadequate

prenatal care.” PX 19 at 2 (JA 1289). Similarly, the

hospital’s physicians did not apply the criteria for testing

newborns even-handedly. Instead, they chose not to enforce

the Search Policy as to any newborn in their intensive care

unit who came from a hospital other than MUSC. See supra

p. 12 (Policy did not apply to “outborn babies”). The

flexibility inherent in the Policy even permitted Nurse Brown

to contact the Solicitor’s Office and request another “chance”

for a white patient who should have been arrested under its

terms. Brown Tr. 12/10/96 81:17-82:5 (JA 265-66). The

result of the discretion exercised by Respondents in forming

and enforcing the Search Policy was a protocol that

disproportionately targeted indigent, African-American

women for search and then arrest. See supra pp. 12-13.

Indeed, the Fourth Circuit held that the evidence presented by

the patients at trial was sufficient to establish a prima facie

case of disparate impact discrimination. See Ferguson, 186

F.3d at 481.

B. Assuming, Arguendo, That Application of the

“Special Needs” Balancing Test Is Appropriate

Here, the Balance Weighs Against the State.

Even in applying the balancing test the court below erred

in three additional ways.2* First, for the reasons outlined

27 By contrast, a checkpoint seizure involves a seizure of every vehicle

passing a given point. Even such a seizure would, however, raise

significant constitutional issues if the placement of the checkpoint itself

indicated an abuse of discretion. Cf United States v. Martinez-Fuerte,

428 U.S. 543, 559-62 & n.15 (1976) (reviewing reasonableness of choice

of location); Delaware v. Prouse, 440 U.S. 648, 661 (1979).

28 In Acton, 515 U.S. at 653, this Court balanced “the nature and

immediacy of the governmental need at issue here, and the efficacy of

41

above, there was not sufficient evidence that the Search

Policy was “effective.” See supra pp. 17-18. Importantly, as

appied ‘by Respondents to five Petitioners, fhe Search Policy

simply could not improve fetal health. Four Petitioners were

arrested based on a single positive drug screen and were

given no substance abuse referrals or education, see supra

pp. 6-8 (Griffin, Singleton, Knight and Powell); , another

Petitioner was searched for the first time at delivery, when

the Policy could no longer affect her child’s health. PX 276

at 1543-44, CCPD 399-400 (Hale, searched in December

1990 when she came to the hospital in active labor). Thus,

the searches conducted on these Petitioners in particular were

effective in identifying women to arrest, but not in insuring a

drug-free pregnancy.?9

In addition, the Search Policy’s focus on cocaine to the

exclusion of other drugs is medically senseless given the

voluminous testimony at trial that other drugs are equally

harmful to the fetus. See supra pp. 18 (heroin,

amphetamines, alcohol and tobacco equally harmful). Lastly,

Respondents failed to 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). Indeed,

the Respondents could not even document the Search

this means for meeting it,” id. at 660, “the character of the intrusion that

is complained of,” id. at 658, and “the nature of the privacy interest upon

which the search here at issue intrudes,” id at 654.

29 The court below contends that the urine drug screens were effective in

“determin[ing] whether a woman had used cocaine during her pregnancy

_and thus whether her child required treatment for prenatal exposure to

cocaine.” Ferguson, 186 F.3d at 478 n.8. However, unlike in Skinner

where the effectiveness of the drug tests was increased because

employees who were tested when accidents occurred could not anticipate

testing, Chandler, 520 U:S. at 315 (citing Skinner, 489 U.S. at 628), some

patients who were aware of the Search Policy could avoid detection by

avoiding drug use prior to a doctor’s appoimtment. Moreover, there is uo

evidence that any child was given any special treatment for “prenatal

exposure to cocaine.”

42

Policy’s “hit rate,” the percentage of all women tested who

tested positive for cocaine, because the hospital kept no

records regarding the total number of women searched.

McCabe Tr. 165:15-20; 177:6-17.

Second, 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, 496 U.S. at 452). But this case does not

involve such a “minimal” intrusion as does 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 patients’ bodies were searched and confidential medical

information was disclosed to law enforcement. Such a

nonconsensual search of a person’s body for evidence of

crime is among the most intrusive searches imaginable. See

Union Pacific R.R.. v. Botsford, 141 U.S. 250, 251 (1891); cf.

Chandler, 520 U.S. at 313 (search relatively noninvasive

where person search “‘control{ied] further dissemination of

the report’).

Third, this Court has established that drug testing invades

personal privacy in a fashion that brings the requirements of

the Fourth Amendment to bear in full force. See Chandler,

520 USS. at 313; 7.L.0., 469 U.S. at 337. 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 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. The broad holding of Whitner v.

South Carolina, 492 §.E.2d 777 (S.C. 1997) (criminalizing

43

behavior by pregnant women -- whether otherwise legal or

illegal -- which could potentially harm viable fetus), cert.

denied, 528 U.S. 1145 (1998), coupled with the expansion of

the special needs exception as interpreted by the court below,

would authorize “special needs” searches of all pregnant

women, or at least those seen smoking or drinking alcohol.

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 control 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 aduits, in

which the obligation of the medical profession is to guard the

confidences of patients as a “sacred trust.” Hippocratic Oath,

quoted in Albert R. Jonsen, et al., Clinical Ethics 166 (4th ed.

1998). And it is irreconcilable with the teaching of this

Court in Planned Parenthood v. Casey, 509 U.S. 833 (1992),

that it is unconstitutional to treat pregnant women as

dependents requiring the tutelage of the state. /d. 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.*° The fact that the patients had no idea that their

physicians were revealing what the patients believed to be

30 Both cases cited by the court of appeals, see Ferguson, 186 F.3d at

479, involved searches for purposes of employment and not for criminal

investigation. See Yin v. California, 95 F.3d 864, 869 (9th Cir. 1996);

Dimeo v. Griffin, 943 F.2d 679, 682 (7th Cir. 1991) (tests for noncriminal

purposes); id. (distinguishing person who has frequent medical exams

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

a

confidential information?! to law enforcement officers rather

than simply using the information for medical purposes only

increases the intrusive aspect of the search, Chandler, 520

U.S. at 318 (relative intrusiveness of a urine drug search is

dependent on whether the individual has control over the

results of the search), and, indeed, has had a permanent effect

on the patients’ relationships with medical providers. See,

e.g., Griffin Tr. 10:10-12 (JA 550); Singleton Tr. 73:2-13 (JA

1146-47); Ferguson Tr. 194:13-20 (JA 470); Nicholson Tr.

298:22-299:22 (JA 912-13). The mere fact that 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 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).

CONCLUSION

For all the foregoing reasons, and in order to insure the

continued vitality of the protections of the Fourth

Amendment, the judgment of the court of appeals should be

reversed.

3! 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).