Petition for Writ of Certiorari — City of Charleston v. Ferguson

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Supreme Court, U.S.

FILED \

0215 28 apr 1 0 2003

Oice @F THE CLERK

In the

Supreme Court of the United States

THE CITY OF CHARLESTON,

SOUTH CAROLINA, et al.,

Petitioners,

CRYSTAL M. FERGUSON, et al.,

Respondents.

On Petition for A Writ of Certiorari To The

United States Court of Appeals For The Fourth Circuit

PETITON FOR A WRIT OF CERTIORARI

Robert H. Hood

Counsel of Record

Mary Agnes Hood Craig

DeborahH. Sheffield, Of Counsel

HOOD LAW FIRM, L.L.C.

172 Meeting Street

P.O. Box 1508

Charleston, S.C. 29402

(843) 577-4435

Attorneys for Petitioners

EPPO D LET LAPT GID OP TNR ETE IM IR LER EY I AIP TET Fe

ACRE EE CR a

SORE Meg en eR EY BE

QUESTIONS PRESENTED

Whether the Fourth Amendment required that the

Petitioners, as healthcare providers acting in cooperation

with law enforcement, give a Miranda-type warming to

obtain valid consent for the urine drug screens?

A. Are the Petitioners required to prove that the

Respondents knew they were cooperating with law

enforcement or that their urine would be tested for

illegal drugs?

. Has the Court of Appeals misconstrued or ignored

the scope of the Court’s mandate in Ferguson II?

Il. Whether there is sufficient evidence to support the jury’s

finding that the Respondents voluntarily consented to the

urine drugs screens?

A. Has the Court of Appeals overlooked or ignored

evidence which supports the jury’s finding that the

Respondents voluntarily consented to the urine drug

screens?

. Are the Petitioners required to prove that the

Respondents’ medical conditions did not create a

vulnerable subjective state rendering them incapable

of giving valid consent?

. Are the Petitioners required to prove that the

Respondents could have obtained treatment at

another facility or that they would have been treated

even if they had refused to provide urine samples?

s List of Parties

The Petitioners are the City of Charleston, South

Carolina, Dr. Harrison L. Peoples, Dr. Thomas C. Rowland,

Jr., Dr. Stanley C. Baker, Jr., Dr. Charles B. Hanna, Dr.

Cotesworth P. Fishburne, Dr. E Conyers O’Bryan, Melvyn

Berlinsky, Patricia T. Smith, M.J. Cooper, Herbert C.

Granger, Robert C. Lake, Jr., Phillip D. Sasser, Claudia W.

Peoples, and Dr. Carroll V. Bing, Jr., in their official

capacities as Trustees of the Medical University of South

Carolina, Reuben Greenberg, Charles Molony Condon,

David Schwacke, Shirley Brown, R.N., Edgar O. Horger, III,

M.D., Victor De 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.

The Respondents 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.

Bo th aaah ie EF

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TABLE OF CONTENTS

Opinions Below.......-sssessssssessesseseenesessesessssnnennnsnnnnnsennsegeseetee 1

JUTISGICTION ..........-..cesecessrererseesesesscscsssssrenenennosconscesenenssesreceses® 1]

Constitutional Provision InvolVed...........:ssssesesssssseereretereses 1

Statement of the Case..........ssceseseseseressrenenersenersssnsnenensneeneey 2

Reasons for Granting the Wit ...........:sssseseeeneesesssssenrenenesents 4

The Constitutional Standard for Valid Consents

-- “Freely and Voluntarily Given” --

The Totality of the Circumstances Test

I. The Fourth Amendment does not require Miranda-

type warnings to obtain valid CONSEMIS. .........:..ssccceeeeeeeees 5

A. The Court of Appeals has created an

unprecedented, heightened _ standard of

informed CONSENL. ....csecerseerserreerrerreerereen sense ees 5

B. The Court of Appeals has misconstrued or

ignored the scope of the Court’s mandate in

Feerguson II. .....ssessessssesesssecssneesenneneneneeneneneneeneneenes 1]

Il. There is sufficient evidence to support the jury’s

finding that the Respondents voluntarily consented

to the urine drug SCTCENS. ..........seeseeseereereteesees saasvinivoss 15

A. There is evidence that the Petitioners had a

clinical need for the urine drug SCTeensS..........--+++++++ 15

B. There is evidence that the Plaintiffs searched

under the Policy had knowledge of law

enforcement involvement. ................cccccccccesssesereeeeees 17

C. The Court of Appeals has reversed the jury’s

finding that the consents were -voluntary by

interjecting issues of vulnerability and coercion

that were not presented to the jury and are not

supported by the evidence or the applicable

__ Se ssieiaacnna ivelaisieia a ph acacia taldcadeianninimaaane 24

1. There is no legal or factual support for the

Court of Appeais’ finding that the

Petitioners failed to disprove that the

Respondents’ medical conditions rendered

them so vulnerable that they could not give

GETOCEIVS CODD. 5 eiiisssicsicensecsaveigiiecsosssmsaviniens 25

2. There is no legal or factual support for the

Court of Appeals’ finding that the

Petitioners failed to prove that the

Respondents would have been treated if

they had refused to provide urine sample. ......... 26

ECL aE LAN SUNT EN WIE RIAL EN Deen 28

TABLE OF AUTHORITIES

Cases

Ferguson v. City of Charleston,

121 S.Ct. 1281 (2002) .......eecseeseeesreeseeeeeeeeeenses 3, 13, 34, 15

Ferguson v. City of Charleston,

186 F.3d 469 (4th Cir. 1999).......cccesesseseeeeeerseseesenenensenens 3

Gouled v. United States,

255 US. 298 (1921).....sccscsssssessesssreeecsesseesesnenrensssasscnrenenes 10

Lewis v. United States,

385 U.S. 206 (1966)........ssssscsssresrerseresssesesessneseneesserenennens 10

Miranda v. Arizona,

384 U.S. 436 (1966)... cssecssereeeesseceessnseeseenenassssnsnensens 13

Ohio v. Robinette,

519 USS. 33, 40 (1996)......sssssssessessesesesseeseesenenseneeasesessnsnns 9

Schneckloth v. Bustamonte,

i A12 U.S. 218, 222 (1973)......csessecesseeseeeeeseeeseeseoensenees 5,7,9

Suckow Borax Mines Consol., Inc. v. Borax Consol., Ltd.,

185 F.2d 196 (9th Cir. 1950).......:csesesesseesereeteeteeseesesens 28

United States v. Salisbury,

662 F.2d 738 (11th Cir. 1981)... eceeeeeeeeseeeneeteeeeneessees 28

Constitutional and Statutory Provisions

sa es SI Wivecenssirawndasdedin casei ecu ]

TUBE Tso ceneeee l

STE Sie eee 2

SL. Codie Bat: § FOF oii cccacheeteorctavnieenicctaecnt 8

‘|

The Petitioners City of Charleston, South Carolina, et al.

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fourth Circuit reversing the jury’s finding that the

Respondents voluntarily consented to the urine drug screens.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 308

F.3d 380 and set forth in the Appendix (App. 1). The order

of the Court of Appeals denying the Petition for Rehearing is

also set forth in the Appendix (App. 58). The unreported

opinion of the District Court does not address the consent

issues presented herein, however, it can be found in the

Appendix submitted with the prior Petition (App. I - 37).

JURISDICTION

The opinion of the Court of Appeals was entered on

decided October 17, 2002. The final judgment of the Court

of Appeals for the Fourth Circuit denying the Petition for

Rehearing and Rehearing En Banc was entered on January

10, 2003. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment of the United States Constitution

"provides:

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

This case presents a Fourth Amendment challenge to

urine drug screens performed on pregnant patients by the

medical staff of the Medical University of South Carolina.

The Respondents are ten women who sought treatment at

the MUSC Medical Center during their pregnancies. As part

of their medical treatment, they voluntarily provided urine

samples for testing Because these patients exhibited certain

medical symptoms and criteria indicative of cocaine use,

their urine samples were tested for cocaine as well as other

routine readings. When the tests established that these

women had, in fact, been using cocaine during their

pregnancies, and, ultimately, MUSC also reported the

positive test results to law enforcement as required by state

law. Nine of the ten Respondents were arrested, but none

were prosecuted to trial. Rather, each of the women

completed substance abuse treatment and the charges were

dismissed.

The Respondents commenced this action on October 5,

1993, asserting a Section 1983 claim the urine tests

performed for medical purposes were warrantless searches

which violated their Fourth Amendment rights. The named

Defendants include the City of Charleston, members of the

MUSC Board of Trustees and individual members of the

medical staff, the City’s Chief of Police, and the County

Solicitors [collectively referred to as “MUSC” or

Petitioners]. In answering, the Petitioners maintained that

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the Respondents had consented to the urine drug screens and

that, in the alternative, the tests were constitutional under the

special needs exception to the warrant requirement.

The District Court rejected the special needs defense, but

submitted the question of consent to the jury which found

that the Respondents had consented to the tests. However,

on appeal, the Court of Appeals for the Fourth Circuit held

that the searches were reasonable under the special needs

doctrine, without reaching the question of the sufficiency of

the evidence to support the jury’s factual finding of consent.

Ferguson v. City of Charleston, 186 F.3d 469 (4" Cir. 1999).

The Supreme Court granted a writ of certiorari, and issued

its mandate on March 21, 2001, reversing the decision of the

Court of Appeals on the special needs doctrine and

remanding for further consideration of the legal and factual

issues on the consent question. Ferguson v. City of

Charleston, 121 S.Ct. 1281 (2002).

On remand, the Court of Appeals has ruled that no

rational jury could have concluded that seven of the plaintiffs

(all but Nicholson! and Knight’) gave their informed consent

1 As to Darlene Nicholson, the Court of Appeals has

remanded for further proceedings to determine if the

Defendants raised the question of whether her search in 1993

was conducted under the Policy, and if so, whether a rational

jury could find she gave her informed consent. To the extent

that District Court determines that the issue was raised, the

Petitioners would submit that the consent issue should be

resolved on the basis of the long-standing, traditional

voluntary consent standard.

STM ELON IRR

to the taking of their urine for evidence of criminal activity

for law enforcement purposes. In reversing the jury’s

finding that they had all voluntarily consented to the

searches, the Court of Appeals has concluded that the

consents were ineffective because the Respondents did not

know that their urine was being analyzed for evidence of

criminal activity for law enforcement purposes. The Court

of Appeals has also found that their consent was not

voluntary because they were in “medical distress” and

MUSC was the only area hospital that accepted their

Medicaid insurance.

This holding is a serious, departure from well-settled

precedent on consensual searches. Fourth Amendment

jurisprudence holds that a valid consent is one freely and

voluntarily given which is to be determined from the totality

of all the circumstances. It does not require that the

consenting party have knowledge or be advised that the

search is intended for law enforcement purposes. Nor does it

require that the Petitioners separately disprove speculation of

duress or coercion.

REASONS FOR GRANTING THE WRIT

This case concerns important constitutional questions

regarding the standard for voluntary consent searches under

the Fourth Amendment. In holding that there is insufficient

evidence that the Respondents gave their informed consent

to the teking and testing of their urine for evidence of

* As to Ellen Knight, the Court of Appeals correctly found

that she suffered no Fourth Amendment violation because

she was arrested based on the testing of her baby.

—————EE————————————————— ——————e

criminal activity for law enforcement purposes, the Court of

Appeals has created a new standard for consent searches

which is in conflict with long-settled Court precedent and

contrary to the mandate of this Court’s remand.

The Constitutional Standard for Valid Consents

-- “Free and Voluntarily Given” --

The Totality of the Circumstances Test

I. The Fourth Amendment does not require Miranda-

type warnings to obtain valid consents.

Under well-established Fourth Amendment precedent, a

search conducted pursuant to 4 valid consent is

constitutionally permissible even in the absence of a warrant.

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The

Court has long held that a valid consent is one freely and

voluntarily given which is a question of fact to be

determined from the totality of all the circumstances. Id. at

227. In an unwarranted break with this settled precedent,

the lower courts have redefined what constitutes a valid

consent.

A. The Court of Appeals has created an unprecedented,

heightened standard of informed consent.

At trial, the District Court instructed the jury on the

consent issue as follows:

There not being a warrant issued, they are

unreasonable in violation of the Constitution of

the United States, unless the Defendants - have

shown by the greater weight or preponderance of

the evidence that the plaintiffs consented to those

searches. [J.A. 1315.~]

The searches of the urine in this case were, as I

have stated, unreasonable unless they were

consented to. [J.A. 1316.]

Consent is question of fact to be determined by

you. It is a question of fact to be resolved in the

light of all the circumstances in the case. It is

sometimes said that you must look at the totality

of the circumstances. Some of the factors that you

might take into consideration in determining

whether or not consent to the search was given b a

particular plaintiff includes the age of the — one of

the plaintiffs. His or her or her lack of education

or her education. Her intelligence. The lack of

any advice from an attorney or the presence of

such advice. [J.A. 1317.]

The matter of consent more often than not is

discussed in terms of voluntariness and

willingness to give consent. But before there can

be any voluntariness, before there can be any

consent, the person giving the consent must have

knowledge of what she is doing. It’s basic that

before you can consent to something you have got

*In addition to the references to the Appendix attached to this

Petition (App.), other transcript excerpts and exhibits may be

found in three appendices on file with this Court — the

Appendix [“App. I] submitted with the Petition for a Wnit

of Certiorari, and the Joint Appendix [“J.A.”] submitted in

connection with briefing the merits.

to know what it is. You have to have enough

information to know what is being dome before

you can consent to it. And the scope of the

consent must be broad enough to include the

search in question.

The written consent in this case may be sufficient

to cover the taking of a urine sample and the

testing thereof by Medical University of South

Carolina officials alone, but it is not sufficient to

cover the sharing of that information with law

enforcement officials. That written consent is not

sufficient consent to warrant a search where the

search information is furnished to law

enforcement officers. There must be something in

addition to that written consent before you can say

that they were consent searches.

I’m not suggesting or saying that there was not

consent. I’m just saying that the wnmitten

document itself does not constitute sufficient

consent notify these plaintiffs that these tests will

be turned over to law enforcement people under

certain conditions. They had no reason from

reading the consent to know that the information

would be shared by the medical people with the

law enforcement people. And therefore to show

that there is a valid consent in this case there must

be something else that convinces you that the

plaintiffs consented not only to the taking of this

urine for the use by the medical people, but also

the sharing of it with law enforcement people for

the possibility of prosecution for drug offenses.

{J.A. 1317-19.]

On remand, the Court of Appeals held that establishing a

constitutionally. valid consent required proof that the

Respondents understood that the request to conduct the urine

drug screen was not being made by medical personnel for

medical purposes, but rather by agents of law enforcement

for purposes of crime detection.

In so holding, the Court of Appeals has misidentified the

‘Fourth Amendment event” at issue as the taking and testing

of the urine for law enforcement purposes. The triggering

event is the taking of the sample and that the evidence is

uncontested that the Respondents freely and voluntarily

sought medical treatment at MUSC and provided the urine

samples as a routine part of that treatment. *

In addition, the Court of Appeals has effectively imposed

a two-part threshold predicate that conditions a valid consent

on (1) identification of the requesting party’s

affiliation/cooperation with law enforcement and (2) a

Miranda-type warming that the results of the search may be

used for criminal detection/prosecution.

The Court of Appeals’ holding exceeds the standard as

charged to the jury and directly contravenes settled precedent

in which this Court has refused to impose the Miranda-type

warnings required by the Fifth Amendment as a condition of

obtaining valid consents to searches and seizures under the

Fourth Amendment.

* The validity of the reporting of the test results is not an

issue because the MUSC personnel were obligated to report

the positive urine drug screens to law enforcement personnel

under the State’s child abuse and neglect reporting statute,

S.C. Code Ann. § 20-7-510.

The correct standard as adopted and adhered to by this

Court is a totality of the circumstances test which allows the

fact finder to consider the extent of a plaintiff's knowledge

of his rights, but does not make any single factor a

prerequisite or controlling criterion.

In Schneckloth v. Bustamonte, the Court was presented

with the question of the requisite proof to demonstrate that

consent was voluntarily given. In particular, the issue was

whether the State had to prove that the person knew he had a

right to refuse consent. The Court held that a valid consent

does not have to be “knowing” and “‘intelligent” in the same

sense as a valid confession, stating: “Nothing either in the

purposes behind the requiring a ‘knowing’ and ‘intelligent’

waiver of trial rights, or in the practical application of such a

requirement suggests that it ought to be extended to the

constitutional guarantee against unreasonable searches and

seizures.” 412 U.S. at 241.

Holding that while a valid consent does not depend on

knowledge of the right to refuse consent, it may be one of the

factors to be considered along with all the other

circumstances, the Supreme Court stated: “‘Voluntariness 1S

a question of fact to be determined from all the

circumstances, and while the subject’s knowledge of a right

to refuse is a factor to be taken into account, the prosecution

is not required to demonstrate such knowledge as a

prerequisite to establishing a voluntary consent.”

Schneckloth, 412 U.S. at 222, 248-49. Similarly, in Ohio v.

Robinette, 519 U.S. 33, 40 (1996), the Court rejected a per

se rule that would “require police officers to always inform

detainees that they are free to go before a consent to search

may be deemed voluntary.”

Settled precedent does not impose a burden on these

Petitioners to prove that the Respondents were informed that

the healthcare providers were cooperating with law

enforcement in testing the urine samples for illegal drugs or

that the test results would be reported to the legal. While

such factors may be part of the totality of the circumstances

to be weighed and considered by the jury, they are not the

sine qua non of an effective consent. Nor should they be.

The Court of Appeals attempts to rationalize the supposed

need for this new predicate based on the fact that the

searches were conducted by medical personnel acting

(unbeknownst to the patients) as agents of law enforcement.

However, the Court has never imposed such a duty of

identification/disclosure on undercover law enforcement

officers or other unofficial “agents” acting in cooperation

with law enforcement.

To the contrary, the Court has recognized that the

government is entitled to conceal the identity of its agents.

While an undercover agent may not secure entry to a home

under pretense of a social call and then secretly ransack it for

evidence of criminal activity, Gouled v. United States, 255

U.S. 298 (1921), there is no Fourth Amendment violation

where a criminal invites the agent into his home and freely

provides the incriminating evidence. Lewis v. United States,

385 U.S. 206 (1966). Here, the Respondents sought

treatment at MUSC and voluntarily provided the urine

samples as part of standard medical protocol.

The implications of the creation of such a new standard

are serious and wide-ranging. It raises questions about the

efficacy of state statutes which require public healthcare

workers, as well as a whole spectrum of others such as social

workers and teachers, to report evidence of suspected crimes

such as child abuse or domestic violence. It also raises new

concerns about the obligations and protocols which must be

followed in other situations involving undercover officers or

civilian agents cooperating with law enforcement in the

detection, investigation, or prosecution of criminal activities.

The Court of Appeals has created a new, heightened

standard for consent searches that imposes an unreasonable

and unworkable burden on law enforcement and those who

cooperate with them.© The Petitioners respectfully submit

that the Court should grant the petition to reaffirm the

constitutional standard for voluntary consents under the

Fourth Amendment or to fully consider the ramifications of

creating such a new standard and define the parameters for

securing effective consents.

B. The Court of Appeals has misconstrued or ignored the

scope of the Court’s mandate in Ferguson IT.

The Court of Appeals acknowledged that this concept of

informed consent does not appear in the Court’s other Fourth

Amendment consent-to-search opinions. However, the

Court of Appeals proceeded under a misperception that this

Court’s prior opinion and mandate for remand required them

to find evidence that the Respondents. knew of MUSC’s

cooperative efforts with law enforcement and the potential

use of the test results for criminal prosecutions in order to

sustain the jury’s verdict:

> The Court of Appeals has also imposed a standard more

stringent than was charged to the jury. Since the

Respondents’ did not object to the jury instructions this

point, the sufficiency of the evidence must be measured

against the law as charged.

[T]he Court made abundantly clear in

Ferguson IJ that any finding of informed

consent must rest on a determination that

[Plaintiffs] had knowledge, from some source,

that no medical purpose supported the testing

of their urine for cocaine; further that

[Plaintiffs] must have understood that the tests

were being conducted for the law enforcement

purpose of obtaining incriminating evidence.

Phrased somewhat differently, critical to the

question of whether [Plaintiffs] voluntarily

consented to the searches is the antecedent

question of whether they understood that the

request was not being made by medical

personnel for medical purposes, but rather by

agents of law enforcement for purposes of

crime detection. [App. 28.]

The Court of Appeals misconstrued the following

language from this Court’s opinion:

While state hospital employees, like other

citizens, may have a duty to provide police

with evidence of criminal conduct that they

inadvertently acquire in the course of routine

treatment, when they undertake to obtain such

evidence from their patients for the specific

purpose of incriminating those patients, they

have a special obligation to make sure that the

patients are fully informed about their

constitutional rights, as standards of knowing

waiver require. Cf. Miranda v. Arizona, 384

U.S. 436, (1966).

121 S.Ct. at 1292 (emphasis in original). However, a careful

reading of the Court’s decision in conjunction with the well-

settled law on consent searches does not support the Court of

Appeals’ interpretation.

The Court confined its ruling to the special needs doctrine

and specifically stated that it was remanding the case to the

Court of Appeals for consideration of the legal and factual

issues On consent:

Because the Court of Appeals did not discuss

this [consent] issue, we think it more prudent

to allow that court to resolve the legal and

factual issues in the first instance, and we

express no view on those issues. 121 S.Ct.

1288 n.11.

2 KK

[Given the posture of the case, we must

assume for purpose of decision that the

patients did nor consent to the searches, and

we leave the question of consent for the Court

of Appeals to determine. Jd. at 1292 n.24.

The scope of the remand is confirmed in both Justice

Scalia’s dissenting opinion and Justice Kennedy’s

concurring opinion, wherein — they expressed their

understanding of the majority’s delineation of the scope on

remand:

The opinion itself implies that in its

description of the issue left for the Court of

Appeals on remand, see ante at 188 n.11:

whether ‘the tests were performed without the

informed consent of the parties,” ante, at 188

(emphasis added) — informed, that is, that the

urine would be tested for drugs and that the

results would be given to the police. J am

happy, of course, to accept the Court’s

illogical assurance that it intends no so such

holding, and urge the Court of Appeals on

remand to do the same. J. Scalia dissenting,

121 S.Ct. at 1298 n.4 (additional emphasis

added).

26 2K 2k

[T]he question of consent, even with the

special connotation used in the special needs

cases, has yet to be decided. Indeed, the

Court finds it necessary to take the unreal step

of assuming there was no voluntary consent at

all. Thus, we have erected a strange world for

deciding the case.

My discussion has endeavored to address the

permissibility of a law enforcement purpose

in this artificial context. The role played by

consent might have affected our assessment

of the issues. My concurrence in the

judgment, furthermore, should not be

interpreted as having considered or resolved

the important questions raised by Justice

Scalia with reference to whether limits might

be imposed on the use of evidence if in fact it

were obtained with the patient’s consent and

in the context of the special needs program.

Had we the prerogative to discuss the role

played by consent, the case might have been

quite a different one. All are in agreement,

of course, that the Court of Appeals will

address these issues in further proceedings

on remand. J. Kennedy dissenting, 121 S.Ct.

at 1295-96.

In light of the fact that the Court expressly declined to

address the consent issue, the Court of Appeals should not

have construed such opinion as creating a new standard

which would drastically change the law of consensual

searches. The Petitioners respectfully submit that the Court

should grant the petition to clarify the scope of its mandate

and reaffirm the constitutional standard for voluntary

consents under the Fourth Amendment.

II. There is sufficient evidence to support the jury’s

finding that the Respondents voluntarily consented to

the urine drug screens.

A. There is evidence that the Petitioners had a

clinical need for the urine drug tests.

The Court of Appeals’ imposition of this heightened

standard is predicated, in part, upon its erroneous finding that

the urine drug screens were performed for the sole purpose

of aiding law enforcement in the detection of criminal

activity. To the contrary, however, there is evidence that the

collection of urine samples was routine and that the drug

screens would have been conducted even in the absence of

the Policy for “Management of Drug Abuse During

Pregnancy.”

There was evidence that the medical staff had a direct

clinical need to know if the women were using cocaine so

that they could safely manage the pregnancy and provide

necessary treatment. The Petitioners presented expert

medical testimony that the use of cocaine can have serious

consequences for both maternal and infant health.° Dr.

Newman testified that the potential complications with the

pregnancy and delivery make it clinically necessary for the

obstetrical staff to know whether the mother has used

cocaine. [J.A. 846, 847-48] The pediatric staff also needs to

know if a newborn has tested positive for drug use because

their management of newborns can be affected by possible

withdrawal or other manifestations of prenatal drug abuse.

[J.A. 28-29, 847.]

When the MUSC medical staff observed that the national

epidemic of prenatal drug use had reached Charleston, they

established a protocol in April 1989 to routinely evaluate

their maternity patients for possible cocaine use.’ While this

° Effects on the mothers include: increased risk of premature

delivery, premature separation of the placenta (abruptio

placentae), spontaneous abortion, and death. Cocaine use

during pregnancy can affect infants in a number of ways,

including an increased nsk of sudden death syndrome, low

birth weight, seizures, strokes, heart attacks, lack of bonding,

emotional disorders, behavioral problems, and learning

disabilities. Other medical problems suffered by these

infants include: brain damage, prune belly syndrome, limb

reduction defects, kidney damage, and damage to the

genitourinary and reproductive systems. In some cases, even

a single dose of cocaine can kill the baby and the mother too.

’ Because of concerns about the degree of discretion in

allowing individual physicians to order urine drug tests

without any parameters, they established six criteria to

control the discretion. Any MUSC maternity patient

medical protocol was incorporated into the Policy, the urine

drug screens remained medically necessary for the prenatal

and neonatal treatment of the mother and child

independently of the attempt to provide preventive substance

abuse counseling and treatment or cooperation with law

enforcement in detecting illegal drug use.

B. There is evidence that the Plaintiffs searched under

the Policy had knowledge of law enforcement

involvement.

The Court of Appeals’ opinion includes a separate

- discussion of the consent issue as to each plaintiff from

which it is apparent that the appellate court has taken its own

view of the evidence and ignored evidence upon which the

jury could have rationally relied. The Petitioners maintain

that even under the heightened standard as charged to the

jury, there is sufficient evidence that does support the jury’s

verdict.®

Some of the Respondents explicitly admitted that they

knew about the Policy and the potential that positive urine

drug screens would be reported to law enforcement. The

jury could have concluded that the other Respondents

presenting one or more of these criteria was automatically

tested.

8 The Court of Appeals did find that there was sufficient

evidence that Singleton and Pear had knowledge that the

urine testing was for law enforcement purposes, but as

discussed below, it went beyond the scope of the issue

submitted to the jury and found that their consents were not

voluntary. ‘

learned of this possibility from a variety of sources,

including:

e MUSC forms signed by the patients for consent for

treatment and ambulatory care;

e Information/literature distributed at the MUSC Clinic;

e Personal, direct verbal warnings from the MUSC medical

staff;

e Written warning letters from the Solicitor;

e Media publicity and news reports; and

e Public service announcements.

As a matter of hospital protocol, all patients sign a general

admission consent form and/or the Consent for Treatment --

Ambulatory Care form before receiving any treatment. The

general consent form signed by (or on behalf of) all patients

admitted to the hospital stated: “I further consent to the

testing for drugs if deemed advisable by my physician.”

The Consent for Treatment - Ambulatory Care signed by

all clinic patients stated: “I further consent to the testing for

drugs if deemed advisable by or necessary in the professional

judgment of the physician or surgeon, or physician or

surgeon acting under their instructions.” [App. I - 64.] The

consent form for clinic patients also included consent to

disclosure of test results: “The Attending physician,

members of the House Staff, and the Medical University

Clinics have my permission to reveal information to

appropriate agencies and individuals where it become

necessary to protect the welfare of myself/the patient and/or

the community.” [App. I - 62.]

The District Court charged the jury that those written

consents “may be sufficient to cover the taking of the a urine

sample and the testing thereof ....” However, the District

Court also incorrectly charged the jury that the written

consents were not sufficient to cover the sharing of that

information with law enforcement officials and that the

Petitioners were required to show that the Respondents

consented to MUSC disclosing the information to law

enforcement. Likewise, the Court of Appeals erred in

finding that the consent forms were ineffective to convey a

constitutionally valid consent.

Notwithstanding the District Court’s erroneous charge,

the evidence presented to the jury supports the finding that

the Respondents did freely and voluntarily consent to the

urine drug screens with sufficient knowledge that any

positive results of those tests could be turned over to law

enforcement officials. .

In finding to the contrary, the Court of Appeals ignored

evidence that under the Policy all patients were given a “To

Our Patients” letter at the time of their very first visit to the

MUSC clinic which explained the dangers of prenatal

cocaine use, offered help and warmed of the potential of law

enforcement intervention. [App. I — 54, 56-57; JA 165, 174,

1269.) Dr. Newman, the Director of Maternal and Fetal

Medicine, and Nurse Brown, the case manager who

supervised implementation of the Policy, both testified that

this letter was provided to all patients in the prenatal clinic

prior to testing. There was also evidence that each patient

who tested positive, was given a letter from the Solicitor’s

office warning of arrest and prosecution if the patient failed

to attend counseling.

The Court of Appeals also ignored evidence that the

Solicitor’s Office developed and produced a public service

announcement which publicized the Policy, offered help, and

warned of the potential for criminal prosecution. [J.A. 345,

477-78, 753.] The public service announcement was carried

widely in the area and shown a number of times.

In fact, several of the Respondents admitted seeing the

public service announcement. And, other Respondents

admitted that they were made aware of the Policy from a

variety of sources, including general publicity. (Pear,

Williams, Knight, Joseph.) As to those who denied any

prior knowledge, the jury could have reasonably inferred that

if the general publicity and the variety of forms and warning

reached a majority of the Respondents, it must also have

reached the others as well.

A thorough review under the appropriate standard, reveals

evidence which is summarized below that each Respondent

voluntarily consented to the urine drug screens with

knowledge of the law enforcement involvement:

Crystal Ferguson -- In the complaint, Ferguson

affirmatively alleged that she knew about the policy before

she ever came to MUSC:

4141. Although the people at the North Area

Health Department had asked Plaintiff

Ferguson if she was using drugs, she denied it

because she was afraid that if she told the

truth she would be arrested under the

Interagency Policy.

2K KOK

4144. Even though Plaintiff Ferguson thought

she might be arrested she was honest to

MUSC personnel about her drug use.

Ferguson also admitted that she had seen the public

service announcement:

4] 141.She had seen a public service announcement

on T.V. in which Defendant Condon

announced that women who had crack

cocaine babies would be arrested. [See also

J.A. 478.]

Ferguson also admitted that she signed a consent form for

ambulatory care consenting to drug testing and disclosure to

“appropriate agencies.” [JA 473.] In addition, to receiving

the Solicitor’s letter, she admitted that the medical staff at

MUSC made it “very clear” that she might be arrested. [JA

474, 478.]

Theresa Joseph — Joseph signed the general consent forms

consenting to the drug tests and she also received a Solicitor

letter warning of law enforcement involvement. [J.A. 753.]

Most significantly, she admitted in the complaint that she

had seen the public service announcement: “Plaintiff Joseph

had seen Defendant Condon’s public service announcement

on television warning that women who had drug babies

would-be arrested.” [916; J.A. 753-55.] She also admitted

that Nurse Brown had warned her of the possibility of arrest

during prior hospitalization for infection in her foot. [§ 171,

J.A. 756.]

Paula Hale — Hale signed the general consent for medical

treatment consenting to the drug test. She also would have

received the informational letter on her first visit to the

clinic, and later when she tested positive the first time, she

received Solicitor letter. [J.A. 592.] Most significantly,

Hale admitted in the complaint that she knew about the

Policy, [§] 202], and that she knew MUSC was reporting to

law enforcement when patients tested positive for drug use

[203]. |

Pamela Pear — Pear admitted, as did others, that she was

aware of the Policy before she sought treatment at MUSC.

[J.A. 969.] When she first sought treatment at the MUSC

clinic, she would have received the informational warning

letter, and when she first tested positive, she received the

Solicitor’s letter. [J.A. 967.] She signed both the general

consent to treatment form and the ambulatory consent form

consenting to drug tests and disclosure. [J.A. 966.]

Patricia Williams — When Williams sought treatment at the

MUSC prenatal clinic, she had already been identified as a

cocaine user based on a positive urine test from the regional

community clinic. [J.A. 1204.] And, she admitted that she

had heard about the Policy before she sought treatment there.

[J.A. 1203, 1226.] When she made her visit at MUSC, she

signed the ambulatory consent form consenting to the drug

test and the disclosure of the results. [J.A. 1227.] She would

have received the informational warning letter as well as

direct warnings from the staff, and when she tested positive,

she received the Solicitor’s letter. [J.A. 1227.] Over the

next months, she tested positive several times and each time,

the nurse reviewed the health legal risks with her. Despite

all these warnings, she tested positive when she was

admitted in labor, and arrested upon her postpartum

discharge.

Lori Griffin -- Griffin was treated in the prenatal clinic

before the development of this Policy. When she was

admitted in preterm labor on October 7, 1989, and tested

positive, the Policy had not yet been approved by the MUSC

Board. However, Griffin signed both ambulatory and

general consent forms consenting to the drug tests and

disclosure of the results. [J.A. 575.] She had also seen

television reports on cocaine babies.

Sandra Powell -- Powell signed an ambulatory care consent

form consenting to the drug test and disclosure [J.A. 1032.]

When she entered the MUSC Medical Center on October 13,

1989, in active labor, she tested positive, but apart from that

test, she also told them that she has been using cocaine just

days before the birth. [J.A. 1035.] She admitted that she had

been warned about the effects of cocaine on her baby before

seeking treatment at MUSC.

Lavern Singleton -- Singleton signed a general consent

form consenting to the drug tests in connection with her

hospital admission for the birth on one child in November

1989. [J.A. 1151] Although this form was undated, a

member of the MUSC staff testified that a consent form must

be signed before treatment, therefore, it is readily apparent

that the form was signed when she was admitted to the

MUSC Medical Center on November 8, 1989, in premature

labor. On admission, she also told them that she had used

cocaine several days earlier. [J.A. 1155.] She tested positive

and was arrested the next day. She told the nurse that she

gave permission for the urine drug screen because she

thought she was clean. She also told the nurse that she had

seen reports on TV about cocaine babies. In addition,

Singleton was arrested after another Respondent’s well-

publicized arrest.

If the Court would grant the Petition and review the Court

of Appeals decision, it will find that the Court of Appeals

has failed to adhere to its standard of review and refused to

view the evidence in the light most favorable to MUSC and

the other Petitioners. Instead, the Court reweighed the

evidence, passed on the credibility of the witnesses, or

substituted its judgment of the facts for that of the jury. If

the Petitioners were properly given the benefit of every

legitimate inference in their favor, the Court would find, as

did the District Court, that there is evidence to support the

jury’s finding that the Respondents consented to the urine

drug screens and that the judgment entered in favor of the

Petitioners should be affirmed.

C. The Court of Appeals has reversed the jury’s finding

that the consents were voluntary by interjecting issues

of vulnerability and coercion that were not presented

to the jury and are not supported by the evidence or

the applicable law.

The correct test for consent is whether it was “freely and

voluntarily given,” a determination to be based on the

totality of the circumstances. Beyond creating and

misapplying a new informed consent standard, the Court of

Appeals also exceeded the scope of its standard of review

and misapplied the law in finding that the consents were

coerced under duress.

The Court of Appeals found that the Respondents were in

a vulnerable subjective state because they were under

medical distress. The Court of Appeals also found that the

Respondents were coerced because MUSC is the only public

hospital that accepts Medicaid patients and they could not

afford to go anywhere else for treatment. In so holding, the

Court of Appeals exceeds the constitutional test for

voluntary consents beyond the scope of the issues and the

evidence presented in the trial of this case.

1. There is no legal or factual support for the Court of

Appeals’ finding that the Petitioners failed to disprove

that the Respondents’ medical conditions rendered them

so vulnerable that they could not give effective consents.

As the Court of Appeals noted, there is case law that

identifies the “possibly vulnerable subjective state of the

person who consents as one of the factors that the jury may

consider under the totality of the evidence test. However,

the jury was not so charged in this case.

The jury was charged that: “Some of the factors that you

might take into consideration in determining whether or not

consent to the search was given by a particular plaintiff

includes the age of the — one of the plaintiffs. His or her — or

her lack of education or her education. Her intelligence or

the level of her intelligence. The lack of any advice from an

attorney or the presence of such advice.” [J.A. 1317.] Since

the charge did not include reference to the plaintiff's

supposed vulnerability because of their medical conditions

and the Plaintiffs did not except the above quoted charge as

given, it was not the prerogative of the appellate court to

interpose issues that were not tried in the trial court.”

The Court of Appeals found that Respondent Singleton

was searched after she had given birth in the ambulance and

that Respondent Pear was in preterm labor when she gave

her urine sample. The Court of Appeals also noted that the

” The Court of Appeals expressed apparent frustration that its

review was “hampered in several respects by sparse evidence

in the record.”” However, the sparseness of the evidence is a

product of the fact that these were non-issues at trial and

under the circumstances, it is inappropriate to reverse jury

verdicts on theories interjected by the appellate court.

other searches were performed on patients who were in

active labor or who had just given birth. From this evidence

the Court of Appeals apparently made its own finding that

they were in such medical distress that any consent was not

voluntary, based on pure speculation:

Medical distress may create a vulnerable

subjective state that is inimical to voluntary

consent in two ways. First, a patient who is in

dire need of medical treatment will feel less

free to question or refuse certain portions of

that treatment, even if she is _ physically

capable of doing so. Second, the physical

strain of labor, birth, or serious illness will

have a deleterious effect on the patient’s

mental process, limiting her ability to

rationally consider whatever choices she has.

[App. 40.]

The Court of Appeals exceeded the scope of its review of

the jury’s verdicts because medical distress does not

automatically vitiate consent and to the extent that the

Respondents’ medical condition might have been a proper

consideration as some part of the totality of all the

circumstances, the evidence was available to the jury and the

appellate court’s speculation cannot override the jury’s

findings.

2. There is no legal or factual support for the Court of

Appeals’ finding that the Petitioners failed to prove that

the Respondents would have been treated if they had

refused to provide urine sample.

The ‘Court of Appeals also found evidence that the

consents were involuntary in that the plaintiffs were

Medicaid patients and that at the time, MUSC was the only

medical system in the area that accepted Medicaid. The

Court of Appeals concluded that the jury’s verdict could not

be substantiated because the Petitioners did not prove that

the Respondents (Singleton and Pear, in particular) would

have been treated if they had refused to provide urine

samples. Again, the Court ignored the fact that the jury

charge (to which the Respondents did not object) did not

include reference to the supposed coercive effect of the

unavailability for Medicaid service at any other local

hospitals.

Moreover, this is not a predicate determination. The test

is one of the totality of the circumstances and no one factor

(whether it be the plaintiffs’ speculative state of medical

distress or the unavailability of other Medicaid facilities) is

determinative. Under the reasoning of the Court of Appeals,

no patient admitted for emergency purposes would be

capable of giving a valid consent; yet, it also apparently feels

that pre-executed consent forms are not permissible and the

patient must give the consent at each and every urine drug

screen.

The Court of Appeals’ decision also places an impossible

burden on facilities such as MUSC that accept Medicaid

patients. Such a result is wholly inconsistent with the

precedent om consents and would make it a virtual

impossibility to ever obtain a valid consent in these types of

cases.

Ultimately, to the extent that such evidence might go to

the question of whether the consents were free and

voluntary, it does not establish, as a matter of law, the type

of threats or improper inducement which overrode their free

will. See United States v. Salisbury, 662 F.2d 738, 740 (11"

—

Cir. 1981)(consent not involuntary unless plaintiff

demonstrated that the defendant’s will was “overcome by

threats or improper inducement amounting to coercion or

duress”); see also Suckow Borax Mines Consol., Inc. v.

Borax Consol., Ltd., 185 F.2d 196 (9" Cir. 1950) (mere

financial hardship cannot constitute duress sufficient to

invalidate release).

CONCLUSION

Based on the foregoing, the Petitioners respectfully

request that the Court grant the petition to clarify the scope of

its mandate and reaffirm the constitutional standard for

voluntary consents under the Fourth Amendment.

Respectfully submitted,

HOOD LAW FIRM, LLC

Robert H. Hood

Mary Agnes Hood Craig

Deborah H. Sheffield, Of Counsel

172 Meeting Street

P.O. Box 1508

Charleston, S.C. 29402

(843) 577-4435

April 10, 2003

APPENDIX

+. 8 eg 8 6 Ae ee Fe, ee cz

App. 1

APPENDIX

TABLE OF CONTENTS

Page

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ee 58

a ai

= vs EN ONT SY CEC Te A

United States Court of Appeals

Fourth Circuit

No. 97-2512

Crystal M. FERGUSON; Paula S. Hale; Ellen L. Knight;

Patricia R. Williams; Lori Griffin; Pamela Pear; Sandra

Powell; Laverne Singleton; Theresa Joseph; Darlene M.

Nicholson, Plaintiffs-Appellants,

and

State-Record Company, Incorporated; The Evening Post

Publishing Company, Intervenors-Plaintiffs,

¥.

CITY OF CHARLESTON, SOUTH CAROLINA;

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, Dr.;

Melvyn Berlinsky; Patricia T. Smith; M.J. Cooper;

Herbert C. Granger; Robert C. Lake, Jr.; Phillip D. Sasser;

Claudia W. Peoples; Carroll V. Bing, Jr., Dr., as

Trusteesof the Medical University of South Carolina in

their official capacities; Reuben Greenberg; Charles

Molony Condon; David Schwacke; Shirley Brown,R.N.;

Edgar O. Horger, Il, M.D.; Victor Del Bene; John

Sanders; William B.Pittard, M.D.; Roger Newman, M.D.;

Harold Bivens, M.D.; MelesiaHenry, R.N., personally and

in their official capacities, Defendants-Appellees.

Center for Constitutional Rights; South Carolina Medical

Association; American Public Health Association;

American Academy on Physician and Patient; Society of

App. 2

General Internal Medicine; American Academy of

Addiction Psychiatry; Association of Maternal and Child

Health Programs; National Medical Association; Global

Lawyers and Physicians; Adnenne Asch, Ph.D., M.S.;

John Arras, Ph.D.; Jeffrey Blustein, Ph.D.; James

Campbell; Arthur Caplan, Ph.D.; Nancy Neveloff Dubler,

J.D.; Ruth Faden, Ph.D., M.P.H.; John Fletcher, Ph.D.;

Jeanine Gage, M.S., R.N., C.S.; Leonard Glantz, J.D.;

Susan Dorr Goold, M.D., M.H.S.A., M.A.; Michael

Grodin, M.D., F.A.A.P.; Jeffrey Kahn, Ph.D., M.P.H.; Jay

Katz, M.D.; Loretta Kopelmann, Ph.D.; Steven Leuthner,

M.D., M.A.; Ruth Macklin, Ph.D.; Mary Faith Marshall,

Ph.D.; Anna C. Mastroianni, J.D., M.P.H.; Steven H.

Miles, M.D.; Lawrence J. Nelson, Ph.D.; Robert M.

Nelson, M.D., Ph.D.; Linda Farber Post, B.S.N., M.A.,

J.D.; Howard B. Radest, Ph.D.; Sally Webb, M.D.,

Amicus Curiae.

Appeal from the United States District Court

For the District of South Carolina, at Charleston

C. Weston Houck, District Judge

(CA-93-2624-2-12)

Argued Jan. 22, 2002.

Decided Oct. 17, 2002.

Before WILKINS and NIEMEYER, Circuit Judges, and

CATHERINE C. BLAKE, United States District Judge for

the District of Maryland, sitting by designation.

App. 3

Affirmed in part and reversed and remanded in part by

published opinion. Judge WILKINS wrote the majority

opinion, in which Judge BLAKE joined. Judge

NIEMEYER wrote an opinion concurring in the judgment

and dissenting in part.

COUNSEL

ARGUED: Priscilla Joyce Smith, Center for Reproductive

Law and Policy, New York, New York, for Appellants.

Robert Holmes Hood, Hood Law Firm, L.L.C., Charleston,

South Carolina, for Appellees. ON BRIEF: Julie

Rikelman, Center for Reproductive Law and Policy, New

York, New York; Susan K. Dunn, Charleston, South

Carolina; David Rudovsky, Kairys, Rudovsky, Epstein,

Messing & Rau, Philadelphia, Pennsylvania; Lynn Paltrow,

National Advocates for Pregnant Women, New York, New

York; Seth Kreimer, Philadelphia, Pennsylvania; Susan

Frietsche, David Cohen, Women's’ Law Project,

Philadelphia, Pennsylvania, for Appellants. Barbara W.

Showers, Mary Agnes Hood Craig, Deborah Harrison

Sheffield, Hood Law Firm, L.L.C., Charleston, South

Carolina, for Appellees. Kimani Paul Emile, Barbara

Olshansky, Center for Constitutional Rights, New York,

New York, for Amicus Curiae Center. Daniel N.

Abrahamson, San Francisco, California, for Amici Curiae

Medical Association, et al.

OPINION

WILKINS, Circuit Judge.

In 1989, the Medical University of South Carolina (MUSC)

established, in cooperation with local law enforcement

officials, a policy (the Policy) intended to reduce cocaine

App. 4

use by pregnant women. As implemented, the Policy

involved the testing of patients' urine to gather evidence of

cocaine use and the disclosure of evidence so obtained to

law enforcement authorities. Appellants are ten former

obstetrical patients at MUSC whose urine was tested

pursuant to the Policy; they brought this action claiming,

inter alia, that the testing of their urine for cocaine

constituted a warrantless, unreasonable search in violation

of the Fourth Amendment.’

Following trial, the district court submitted to the jury the

question of whether Appellants had consented to the urine

drug screens. The jury found in favor of Appellees. We

now must decide whether the district court erred in denying

Appellants’ subsequent motion for judgment as a matter of

law. For the reasons set forth below, we hold that no

rational jury could conclude, from the evidence presented at

trial, that Appellants gave their informed consent to the

taking and testing of their urine for evidence of criminal

activity for law enforcement purposes. Our holding

encompasses two determinations: first, that as to most of

the Appellants, the record evidence does not support a

finding that Appellants knew that their urine was being

analyzed for evidence of criminal activity for law

' The complaint filed by Appellants named as defendants the

City of Charleston, South Carolina; the trustees of MUSC;

Charleston City Police Chief Reuben Greenberg; former

Ninth Circuit Solicitor Charles Condon; then--current Ninth

Circuit Solicitor David Schwacke; Nurse Shirley Brown;

Nurse Melesia Henry; and several physicians and MUSC

officials involved in obstetrical and neonatal care at MUSC.

We will refer to the defendants collectively as "Appellees."

—*

App. 5

enforcement purposes; and second, that the record evidence

does not support a finding that Appellants, for Fourth

Amendment purposes, voluntarily submitted to the

searches. Excluded from our holding is Ellen Knight, who,

as explained below, suffered no Fourth Amendment

violation. Additionally, we remand for further proceedings

as to Darlene Nicholson, who may not have been searched

pursuant to the Policy. In sum, we affirm in part and reverse

and remand in part.

Because we are reviewing the denial of Appellants’ motion

for judgment as a matter of law, we must view the evidence

in the light most favorable to Appellees and draw all

reasonable inferences in their favor without weighing the

evidence or assessing the witnesses' credibility. See Sales v.

Grant, 158 F.3d 768, 775 (4th Cir.1998). Viewed in light of

that standard, the evidence at trial demonstrated the

following facts.

A. FACTS REGARDING THE POLICY

In the fall of 1989, MUSC instituted a policy providing for

the testing of the urine of pregnant women for cocaine use

and for the reporting, under certain circumstances, of test

results to law enforcement officials. The Policy was

implemented both at the MUSC hospital and at the MUSC

clinic.” The impetus for the Policy came from Nurse Shirley

Brown, a case manager in the obstetrics department at the

MUSC hospital. In the previous year, personnel in the

? Although both are part of the MUSC system, the MUSC

hospital and the MUSC clinic appear to be administratively

separate. Pregnant women received outpatient prenatal care

at the clinic; the hospital provided inpatient services,

including delivery.

App. 6

obstetrics department had noted an increase in cocaine use

by pregnant women. Although these women were referred

to substance abuse treatment, such referrals were ineffective

in stemming the tide of "cocaine babies" being born at the

MUSC hospital. After hearing a report regarding a program

in place elsewhere in South Carolina, which involved

bringing charges of child abuse against women who used

cocaine during pregnancy, Brown spoke with an MUSC

official, who in turn contacted the Ninth Circuit Solicitor

(chief prosecuting attorney) concerning the development of

a program for application at MUSC to detect and deter

cocaine use by pregnant women.

Eventually, a task force was formed that included Nurse

Brown, the Solicitor, the Chief of the Charleston City

Police Department (CCPD), representatives from the

Charleston County Substance Abuse Commission

(CCSAC), and doctors from various departments at MUSC

involved in perinatal care. By mid-October 1989, these

meetings had produced the initial version of the Policy at

issue in this litigation. According to the terms of the initial

Policy, MUSC maternity patients were to be tested if any of

nine criteria was met.” The initial Policy provided that if a

> Arguably, the development of such a program was

unnecessary; MUSC personnel could have reported positive

urine drug screens obtained during the normal course of

medical treatment to law enforcement personnel under the

South Carolina child abuse and neglect reporting statute,

S.C.Code Ann. § 20-7-510 (Law.Coop.Supp.2001). Such a

course of action was not followed, however.

* Those criteria were: (1) separation of the placenta from the

uterine wall; (2) intrauterine fetal death; (3) no prenatal care;

App. 7

patient had not yet delivered her baby, she was to be given

a referral to CCSAC and counseling regarding the harmful

effects of drug use during pregnancy. Upon a second *388

positive test or a failure to comply with treatment

obligations, the patient would be arrested.” If a patient

tested positive for cocaine upon delivering a child, she was

to be arrested "as soon as medically possible." J.A. 1448.

In early 1990, the Policy was amended to focus more on

patient education. To that end, two of the doctors involved

with the Policy drafted a letter to be given to all women

who received prenatal care at the MUSC clinic. Known as

the "To Our Patients" letter, it warned patients of the

dangers of prenatal drug use and further stated:

If you are using drugs, please stop! If you are

unable to stop, please let your doctor know. We

want to help mothers get off drugs for the benefit

of both you and your baby. We will provide you

counseling about the harms of drug abuse and will

(4) late prenatal care (beginning after 24 weeks gestation);

(5) incomplete prenatal care (fewer than five visits); (6)

preterm labor with no obvious cause; (7) a history of cocaine

use; (8) unexplained birth defects; and (9) intrauterine

growth retardation with no obvious cause.

> Although documents related to the Policy indicate that

arrests were not to be made until a patient had tested positive

a second time or failed to comply with treatment obligations,

the actual application of the Policy was not so lenient.

Several women were arrested during the initial stages of the

Policy after a single positive drug screen. See Ferguson v.

City of Charleston, 532 U.S. 67, 72 n. 5, 121 S.Ct. 1281, 149

L.Ed.2d 205 (2001)

App. 8

make arrangements for you to be seen at the

Substance Abuse Clinic. We realize that drug

abuse is a very difficult problem and we will do

all that we can to help you.

If, however, we continue to detect evidence of

drug abuse or a failure to follow recommended

treatment, we will take action to protect your

unborn child. The Charleston Police, the

solicitor's office, and the Protective Service

Division of [the Department of Social Services]

are also committed to the protection of unborn

and newborn children from the harms of illegal

drug abuse.

We hope that you can understand the tragedy

which is being caused by the continued use of

illegal drugs during pregnancy. This policy of

providing warning, counseling and treatment for

pregnant women using illegal drugs is the best

way for us to help. For those women who fail this

treatment, we must ask for help to protect the life

and health of our most innocent unborn children.

Id. at 1437.° Additionally, patients were shown a video

regarding the dangers of drug abuse during pregnancy.

In an effort to publicize the Policy, the Solicitor recorded a

public service announcement (PSA) that was aired on iocal

° Appellees assert that the "To Our Patients" letter was in use

from the outset of the Policy, i.e., as early as October 1989.

However, Brown's testimony established that the letters were

not immediately available. Rather, it appears ‘that the "To

Our Patients" letter came into use in January 1990.

App. 9

television stations for several months beginning in March

1990. The text of the PSA was as follows:

When you're pregnant, just one line of cocaine, a

single hit of crack, rushes to your baby's body and

brain. Within minutes your body can be jolted into

premature labor risking a still developing child to

stroke, even death. And not only will you live with

the guilt, you could be arrested.

But this is a tragedy you can prevent. If you have a

problem with drugs talk to your doctor or call

MUSC at 792-6437. Trained counselors wiil guide

you through drug rehabilitation and advise you

about good prenatal care. And if you stay with the

program you will not be arrested or prosecuted.

Wake up from the nightmare. Think about your

baby first.

Supp. J.A.. 1.

The Policy as revised in 1990 also included a greater

"amnesty" component. Under the revised Policy, all

pregnant women who tested positive for cocaine, including

those whose first positive test occurred in conjunction with

the delivery of their children, were referred to substance

abuse treatment. A patient was not arrested unless she tested

positive a second time or failed to fulfill treatment

requirements. This aspect of the Policy was explained in a

letter from the Solicitor ("the Solicitor's letter"), which was

given to patients after a positive urine drug screen. In the

case of a woman who tested positive during prenatal care,

the letter provided:

App. 10

During your recent examination you tested positive

for drugs. You have been counseled about the

harmful effects of drugs to you and your baby and

referred to Substance Abuse and Pre Natal Care by

the Medical University. By these referrals you are

being afforded an opportunity to rehabilitate.

yourself for the good of yourself and your baby.

Please understand that by using drugs during

pregnancy you are risking death or at least severe

long-term harmful effects to your baby. If you fail

to attend Substance Abuse and PreNatal Care you

will be arrested by Charleston City Police and

prosecuted by the Office of Solicitor.

J.A. 1432 (first emphasis added). A similar letter was given

to women who tested positive for cocaine use upon the birth

of a baby; this letter informed the patient that a referral had

been made to the Department of Social Services in addition

to the CCSAC. This version of the letter advised women that

they would be arrested and prosecuted "[i]f you fail to

complete Substance Abuse Counselling [sic], fail to

cooperate with the Department of Social Services ..., or if

you fail to maintain clean urine specimens during your

Substance Abuse rehabilitation."’ Jd. at 1433. Women were

requested to sign the Solicitor's letter as a means of

acknowledging receipt, but a signature on the letter did not

signify agreement to anything.

In addition to the documents related to the Policy, women

receiving perinatal care at MUSC were generally asked to

sign one or both of two consent-to- treatment forms. The

first form ("the ambulatory consent form") was signed by

’ There is no evidence that any Appellant was searched after

receiving this version of the Solicitor's letter.

. e

App. 11

women who received prenatal care at the MUSC clinic.

This form provided, in pertinent part:

The intention hereof is to grant full authority to

such physicians and surgeons and the Medical

University Clinics ... to administer and perform all

and singular any drugs, treatment, tests or

diagnostic procedures.... J further consent to the

testing for drugs if deemed advisable by or

necessary in the professional judgement of the

physician or surgeon.

Id. at 1443 (emphasis added). Women admitted to the

hospital signed a consent form ("the general consent form")

that included the following language:

I acknowledge that I am suffering from a condition

requiring Medical/Hospital care and_ thereby

voluntarily consent to such Medical/Hospital care

encompassing diagnostic procedures and medical

treatment by my physician, assistants or designees,

as may be necessary in his or her judgment.... /

further consent to the testing of drugs if deemed

advisable by my physician.

Id. at 1442 (emphasis added). These forms were the same

forms signed by every patient of the MUSC clinic and

hospital; they were not altered in any way to account for the

Policy.

B. FACTS REGARDING INDIVIDUAL APPELLANTS *

* At the outset, we note that none of the Appellants were

subjected to forcible extraction of their urine. Throughout

App. 12

1. Lori Griffin

During the initial stages of her pregnancy, Griffin received

prenatal care at a clinic in McClellanville, South Carolina;

that clinic referred her to the MUSC clinic. In connection

with her prenatal care at the MUSC clinic, Griffin signed an

ambulatory consent form on June 28, 1989. The following

day, her urine tested positive for cocaine. During her

testimony at trial, Griffin denied being informed that she

had tested positive.

On October 7, Griffin was admitted to the MUSC hospital

in pre-mature labor. She did not sign a general consent form

in connection with this admission. See id. at 1523. During

this admission, Griffin's urine again tested positive for

cocaine. Griffin was arrested on October 10, just as she was

released from the hospital. She remained incarcerated for

the next three weeks, until she delivered her baby on

October 26.

In January 1990, Griffin was indicted on one count of

possession of cocaine and one count of distribution of

cocaine to a person under the age of 18. She was not

prosecuted.

2. Sandra Powell

Powell initially received prenatal care from a physician in

McClellanville, who referred her to the MUSC clinic

this litigation, the parties have proceeded on the premise that

all urine samples were provided at the request of MUSC

personnel.

2 PERRET RRR tt

App. 13

because of her high blood pressure. Powell signed an

ambulatory consent form on May 24, 1989. Powell attended

her prenatal appointments until late September, when

Hurricane Hugo struck the Charleston area. On October 13,

Powell went into labor and was transported to the MUSC

hospital by ambulance. A general consent form was signed

by Powell's mother. Powell delivered her baby shortly after

arriving at the hospital; both Powell's and the infant's urine

tested positive for cocaine. Powell was subsequently

arrested, but she was not prosecuted.

3. Ellen Knight

During her pregnancy, Knight received prenatal care at the

MUSC clinic. In connection with this care, Knight signed

an ambulatory consent form on October 11, 1989. On the

morning of November 6, 1989, Knight was admitted to the

MUSC hospital in labor and subsequently delivered her

baby. The record does not contain a general consent form

signed in connection with this admission.

Knight's baby's urine tested positive for cocaine; the record

does not indicate that Knight's urine was tested. Based on

the positive test from her infant, Knight was arrested on

November 8. The charges were dismissed after she

successfully completed a drug treatment program.

4. Laverne Singleton

Singleton delivered two children at MUSC during the

existence of the Policy. During the first of these

pregnancies, in 1989, Singleton received no prenatal care.

She delivered a son on November 9 at the MUSC hospital

after signing a general consent form upon her admission to

the hospital. Singleton was in active labor when she signed

the form and delivered her baby shortly thereafter. At that

App. 14

time, her urine tested positive for cocaine. Singleton told

Nurse Brown that she consented to a urine drug screen

"because she thought she was clean." Jd. at 1862 (internal

quotation marks omitted). Singleton was arrested on

November 10. In July 1990, she was charged with child

neglect; she was not prosecuted.

In November 1990, Singleton delivered another baby, this

time in the ambulance en route to the MUSC hospital. She

later signed a general consent form. In connection with her

post-partum care, Singleton again tested positive for

cocaine. As an alternative to arrest, Singleton voluntarily

admitted herself to inpatient treatment at the MUSC

Institute of Psychiatry (IOP).

5. Pamela Pear

In the summer of 1990, when she was six or seven months

pregnant, Pear was referred to the MUSC clinic because she

was at high msk for preterm labor. Pear signed an

ambulatory consent form for care at the clinic on July 13,

1990. At that visit, her urine tested positive for cocaine.

Following the positive test, Pear reviewed and signed the

Solicitor’s letter, reviewed the "To Our Patients" letter,’ and

° Nurse Brown testified that all obstetrical patients in the

MUSC clinic were given the "To Our Patients" letter prior to

their urine being searched, and we must accept this testimony

as true as to those patients who received treatment in the

MUSC clinic during the time that the "To Our Patients” letter

was in use. However, Pear's medical file includes nursing

notes specifically stating that Pear was not given the "To Our

Patients" letter until after the July 1990 search. This conflict

in the evidence is immaterial to our resolution of the appeal.

App. 15

watched the video on substance abuse during pregnancy.

She was provided with an appointment for substance abuse

counseling. In late August, Pear was admitted to the MUSC

hospital in preterm labor and again tested positive for

cocaine. Pear signed a general consent form in connection

with this admission. Pear was arrested upon her discharge

on September | and spent the remainder of her pregnancy

in jail. She delivered her child on September 14. Although

Pear was charged with distributing cocaine to a person

under the age of 18, the charge was subsequently nolle

prossed.

During her trial testimony, Pear acknowledged that she had

been aware, during her pregnancy, that MUSC was testing

women for drug use and that those who tested positive were

arrested.

6. Paula Hale

Hale delivered a baby at the MUSC hospital on December

13, 1990, having received no prenatal care during her

pregnancy. The record does not contain a general consent

form signed in connection with this admission. Both Hale

and the baby tested positive for cocaine. Hale was informed

of the hazards of drug use and signed the Solicitor's letter.

She was not arrested at that time, but a warrant for Hale's

arrest was issued in March 1991, and Hale was arrested in

June of that year. Given the terms of the Policy, we assume

that Hale's arrest was triggered by her failure to comply

with treatment obligations. As with the other Appellants,

however, Hale was not prosecuted.

7. Crystal Ferguson

App. 16

Ferguson began receiving prenatal care at the North

Charleston Health Department in early or mid 1991. At

some point prior to or during her pregnancy, Ferguson saw

the PSA. At her request, she was referred to the MUSC

clinic after admitting to Health Department personnel that

she was using cocaine. Ferguson signed an ambulatory

consent form in connection with her first visit to the clinic

on June 19, 1991. When she signed the form, Ferguson was

experiencing pre-term labor. At that visit, Ferguson tested

positive for cocaine. She thereafter viewed the video on

substance abuse and signed the Solicitor's letter. Ferguson

was encouraged to enter inpatient substance abuse

treatment but refused because she lacked adequate child

care.

On August 4, Ferguson underwent an emergency cesarian

section based on her doctor's suspicion, later confirmed,

that the placenta was separating from the uterine wall.

Ferguson signed a consent form specific to the surgery, but

the record does not include a general consent form related

to Ferguson's admission to the hospital. Ferguson again

tested positive for cocaine. Although the terms of the Policy

provided that Ferguson was to be arrested at that time, she

was allowed to go home to attend to the details of her

mother's funeral. Ferguson was arrested on August 19 and

charged with distributing drugs to a person under the age of

18; this charge was based on the positive urine drug screen

on June 20. The charge was dismissed in 1993.

8. Theresa Joseph

Joseph saw the PSA while she was pregnant in 1991.

Joseph did not seek prenatal care because she was using

cocaine and heroin; in view of the PSA, she was afraid of

SERIE ETAL MAE EI ONC OT eT eg

App. 17

being arrested. On June 6, when she was approximately 15

weeks pregnant, Joseph was admitted to the MUSC hospital

for treatment of a severe infection in her right foot. Joseph

was in dire need of medical treatment; hospital employees

warned her that failure to complete treatment could result in

amputation of her foot or even death. The record does not

include a general consent form signed by Joseph in

connection with this admission. Joseph's urine tested

positive for cocaine. Nursing notes from Joseph's medical

records indicate that a transfer to the IOP was contemplated

and that Joseph was to be shown the video and the

Solicitor's letter prior to this transfer. However, Joseph left

the hospital against medical advice on June 7.

Joseph returned to the hospital on June 14 because of

excruciating pain in her foot; at that time, she signed a

general consent form. She again tested positive for cocaine.

Joseph was shown the video, given the Solicitor's letter, and

advised that she had appointments for prenatal care and

substance abuse counseling. Joseph was informed that

failure to attend either of these appointments could result in

her arrest.

When Joseph was 32 weeks pregnant, she was admitted to

the MUSC hospital for performance of an emergency

cesarian section, and she signed a general consent form.

She again tested positive for cocaine and was arrested on

October 23, the day she was discharged from the hospital.

As with the other Appellants, Joseph was not prosecuted.

9. Patricia Williams

Williams began receiving prenatal care at the North

Charleston Health Department in December 1991, when

she was five or six months pregnant. At her request, she

was transferred to the MUSC clinic for assistance with her

App. 18

cocaine problem. Williams requested the transfer because

she had heard of the Policy and understood that MUSC was

trying to help pregnant women with their drug problems.

Williams signed an ambulatory consent form at her first

visit to the MUSC clinic on January 15, 1992. She tested

positive for cocaine at that time, whereupon she signed the

Solicitor's letter and watched the video. She also was

referred to substance abuse counseling. Williams tested

positive for cocaine several more times during her

pregnancy but was not arrested (the record does not indicate

why). She delivered her baby at the MUSC hospital on

March 10, and again tested positive for cocaine. The record

does not contain a general consent form signed by Williams

in connection with this admission. She was arrested on

March 12 and was charged with distributing cocaine to a

person under the age of 18 based on one incident of

prenatal cocaine use. Williams was not prosecuted,

apparently because she successfully completed an inpatient

drug treatment program.

10. Darlene Nicholson

During her pregnancy in the latter part of 1993, Nicholson

received prenatal care at the MUSC clinic. On October 20,

Nicholson signed an ambulatory consent form in

connection with her prenatal care; at this visit, her urine

tested positive for cocaine. During a subsequent prenatal

visit on December 17, she was informed that she was

dehydrated and needed to be admitted to the hospital.

Nicholson signed a general consent form in connection with

this admission. During that admission, Nicholson's urine

again tested positive for cocaine. At that time, she was

given a choice between voluntary and involuntary

commitment to the IOP. Nicholson voluntarily admitted

USL Rann ate tiles chien ar RPM ESERIES RTA EE ARIE PT bia tanh TER agit patent ad she keiigicksibaSdesisaasy sch oan anid las ees

App. 19

herself to the IOP for inpatient drug treatment and remained

there until January 7, 1994.

After her release, Nicholson continued to use drugs. On

February 7, she was involuntarily committed to the IOP by

the CCSAC. She was released two days later, on February

9. Less than a week later, Nicholson readmitted herself to

the IOP for another 30 day course of substance abuse

treatment. On February 21, Nicholson was temporarily

released from the IOP and admitted to the MUSC hospital

for the birth of her child; after two days of recovery, she

was readmitted to the IOP and completed her course of

treatment.

C. PROCEDURAL HISTORY

Appellants filed this action on October 5, 1993, claiming,

inter alia, that the performance of the urine drug screens

violated their Fourth Amendment right to be free from

unreasonable searches and seizures. In response, Appellees

contended that the searches were justified by the special

needs doctrine, see Nat'l Treasury Employees Union v. Von

Raab, 489 U.S. 656, 665-66, 109 S.Ct. 1384, 103 L.Ed.2d

685 (1989), or, alternatively, that Appellants had consented

to the searches.

The district court rejected the special needs theory,

concluding that the involvement of law enforcement

personnel in the formulation of the Policy precluded the

application of the special needs doctrine. Following trial,

the district court submitted the Fourth Amendment claim to

the jury. The court instructed the jury that it should find for

Appellees if it concluded, after considering the totality of

the circumstances, that Appellants had consented to the

searches. However, the court also instructed the jury that

SE EE > oe

App. 20

neither the general consent form nor the ambulatory

consent form was adequate to establish voluntary consent to

the searches.

The jury found in favor of Appellees. Appellants moved for

judgment as a matter of law, maintaining that a rational jury

could not find, from the evidence presented, that any of the

Appellants had consented to the searches. The district court

denied the motion, stating that "[t]here is evidence in the

record from which the jury could reasonably conclude that

the plaintiff [s] consented to these searches." Jd. at 2728.

However, the district court did not specify what evidence

supported the verdict.

On appeal, a majority of this panel affirmed on the basis

that the searches were sustainable under the special needs

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

476-79 (4th Cir.1999) (Ferguson I ); cf. id. at 486-89

(Blake, J., dissenting). This ruling was subsequently

reversed by the Supreme Court, which concluded that

because "the immediate objective of the searches was to

generate evidence for law enforcement purposes," the

special needs doctrine did not apply. Ferguson v. City of

Charleston, 532 U.S. 67, 83, 121 S.Ct. 1281, 149 L.Ed.2d

205 (2001) (Ferguson II ). The Court therefore vacated our

decision and remanded for consideration of whether there

was sufficient evidence to support the finding of consent by

the jury. See id. at 86, 121 S.Ct. 1281. Specifically, the

Court instructed us to determine whether Appellants gave

their "informed consent" to the searches. /d. at 76, 121 S.Ct.

1281.

Il.

We review the denial of judgment as a matter of law de

novo. See Konkel v. Bob Evans Farms Inc., 165 F.3d 275,

App. 21

279 (4th Cir.1999). In so doing, we must view the evidence

in the light most favorable to Appellees and draw all

reasonable inferences in their favor without weighing the

evidence or assessing the witnesses' credibility. See Sales,

158 F.3d at 775. "The question is whether a jury, viewing

the evidence in the light most favorable to [Appellees],

could have properly reached the conclusion reached by this

jury." Benesh v. Amphenol Corp. (In re Wildewood Litig.),

52 F.3d 499, 502 (4th Cir.1995). We may reverse only if

"there can be but one reasonable conclusion as to the

verdict," Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); if reasonable

minds could differ, we must affirm, see Sales, 158 F.3d at

Before considering the merits of the ruling of the district

court, it is necessary to consider some preliminary matters.

At the outset, we must define with some specificity the

Fourth Amendment event with which we are concerned.

One could argue that the reach of the Fourth Amendment

extends only to the process by which the urine sample was

obtained and that any subsequent handling or testing of that

sample does not have Fourth Amendment ramifications.

This is the position taken by Justice Scalia in his dissent in

Ferguson II. See Ferguson II, 532 U.S. at 92, 121 S.Ct.

1281 (Scalia, J., dissenting) ("There is only one act that

could conceivably be regarded as a search of petitioners in

—_

App. 22

the present case: the taking of the urine sample.").'° At the

other end of the spectrum, one may consider all law .-

enforcement activities related to the urine sample--i.e., the

taking of the sample, the testing of it for evidence of drug

use, and the reporting of the results to law enforcement

officials--as covered by the Fourth Amendment. This seems

to be the view taken by the Supreme Court, see id. at 77,

121 S.Ct. 1281, and it is the way the complaint was framed

by Appellants and presented to the jury. In the middle is the

position that the Fourth Amendment event at issue

comprises the taking and testing of the urine but not the

reporting of results to law enforcement officers.

For purposes of resolving this appeal, it is sufficient to

reject the first possibility--that the only Fourth Amendment

event was the obtaining of the sample. In the special needs

context, where the Court has most often addressed the

constitutional impiications of urine drug screens, the Court

has uniformly addressed the constitutionality of the taking

of a urine sample and the testing of that sample for

evidence of drug use.'' See, e.g., Vernonia Sch. Dist. 47J

v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d

564 (1995); Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S.

602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Because

there was, as we explain below, insufficient evidence from

'© Justice Scalia further argued that once the urine sample

had been obtained, any deception practiced upon Appellants

by MUSC personnel was irrelevant to the question of

consent. See id. at 94-95, 121 S.Ct. 1281 (Scalia, J.,

dissenting). However, Appellees have never contended that

they properly used deception to obtain and test Appellants’

urine.

'' Moreover, the majority in Ferguson IJ implicitly rejected

Justice Scalia's position.

REE R Pie nS REMERON: Ti tel DR PAINS

Sey ne kr aie Ree

Pipe at ize

App. 23

which a rational jury could conclude that any Appellant

(excluding Ellen Knight and Darlene Nicholson, discussed

infra Part II.A.2) validly consented to the taking and testing

of her urine for law enforcement, as opposed to medical,

purposes, we do not consider whether the disclosure of test

results to law enforcement authorities also implicated the

Fourth Amendment.

Additionally, we must address Appellees' arguments that

two of the Appellants do not have any claim under the

Fourth Amendment. These Appellants are Ellen Knight,

who was arrested based on a search of her newborn's urine,

and Darlene Nicholson, whose urine was tested, according

to Appellees, after the Policy had been suspended.

a. Eilen Knight

As noted in the statement of facts, Knight herself was never

searched pursuant to the Policy; rather, a search was

conducted on the urine of her newborn child.'* Appellees

assert that because Knight did not have a reasonable

expectation of privacy in her child's urine, she lacks

standing to claim a violation of the Fourth Amendment. See

Rakas y. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978) (explaining that term "standing" refers,

in Fourth Amendment context, to question of whether

party's own expectation of privacy has been infringed).

'? This lawsuit does not include a claim by or on behalf of

Knight's cniid.

App. 24

We agree with Appellees that Knight suffered no violation

of her Fourth Amendment rights. "Fourth Amendment

rights are personal mghts which, like some _ other

constitutional rights, may not be vicariously asserted."'°

Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961,

22 L.Ed.2d 176 (1969); see United States v. Taketa, 923

F.2d 665, 670 (9th Cir.1991) (noting that "the Supreme

Court [has] explicitly rejected concepts of ‘vicarious’ or

‘target’ standing to assert fourth amendment rights"). We are

aware of no decision holding, or even suggesting, that a

mother has a reasonable expectation of privacy in her

newborn child's bodily fluids. Indeed, such a holding would

conflict with the general rule that an expectation of privacy

does not arise from one's relationship to the person

searched. See 5 Wayne R. LaFave, Search and Seizure §

11.3(1), at 223-24 (3d ed.1996). Accordingly, we affirm as

to Knight.

b. Darlene Nicholson

Nicholson's urine was tested for cocaine in October and

December 1993. Appellees assert that the Policy had been

discontinued by this time, and thus any such test was not a

search because it was not performed by MUSC personnel

' This is true notwithstanding that Knight may have suffered

damages as a result of information obtained from the urine

drug screen performed on her child. See Rakas, 439 U.S. at

134, 99 S.Ct. 421 ("A person who is aggrieved by an illegal

‘ search and seizure only through the introduction of damaging

evidence secured by a search of a third person's premises or

property has not had any of his Fourth Amendment rights

infringed.").

(Uys akodn A cae ae

Rain ai Ata ei aan

Se RRS AS Cosscn A in 8 SF sea RR I RS OL ae i

BE oN Yt SPORES TEI OOTY DT ISIE ests POH LARP NS siti Sie

App. 25

acting in conjunction with law enforcement authorities. It is

not clear to us whether Appellees made this assertion before

the district court; if they did not, the argument is forfeited.

See Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655,

665 (4th Cir.1993). If, however, the question was raised by

Appellees but not resolved by the district court, the court

must address the issue before allowing Nicholson to seek

damages. Therefore, we remand for the district court to

determine (1) whether Appellees' claim that Nicholson was

not searched under the Policy was forfeited; (2) if not,

whether Appellees’ assertion is correct; and (3) if not,

whether a rational jury could find that Nicholson gave her

informed consent to the search. If it reaches the last

question, the district court should be guided in its

determination by the reasoning of this opinion. Finally, if

the district court determines that Nicholson does have a

Fourth Amendment claim and that the finding of consent by

the jury is not supported by the evidence presented at trial,

a jury should be allowed to consider Nicholson's claim for

damages.

Also before proceeding to the merits, it will be helpful to

note two issues with which we are not concerned. First, this

appeal does not tum on whether any Appellant was

prosecuted or on whether Appellants were arrested only

after a second (or subsequent) positive test. While these

questions might be relevant to Appellants’ damages, the

consent question addresses only the search--i.e., the taking

and testing of Appellants’ urine for law enforcement

purposes--not any events that followed from the search.

This case is also not about the motives of those involved.

There can be little doubt from the record that the creation

and implementation of the Policy were motivated by the

sincere desire of all involved to help pregnant women and

App. 26

their babies. Our ruling is in no way an indication that the

MUSC personnel responsible for the Policy engaged in

purposefully wrongful conduct. Rather, our ruling concerns

only a question of constitutional procedure: whether

Appellants gave their informed consent to be searched, i.e.,

whether Appellants gave their informed consent to the

taking and testing of their urine for law enforcement

purposes.

It is to that question that we now tum. The Fourth

Amendment prohibits unreasonable searches, see U.S.

Const. amend. IV, and searches conducted without a

warrant are per se unreasonable unless a valid exception to

the warrant requirement applies, see Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973). Voluntary consent to a search is such an

exception. See id. In determining whether consent to search

was freely and voluntarily given, the factfinder must

examine the totality of the circumstances surrounding the

consent. See id. at 227, 93 S.Ct. 2041. "[T]wo competing

concerns must be accommodated in determining the

meaning of a ‘voluntary’ consent--the legitimate need for

such searches and the equally important requirement of

assuring the absence of coercion." /d.

In considering the totality of the circumstances, the

factfinder must take into account the characteristics of the

person from whom consent is sought, such as age, maturity,

education, and experience. See United States v. Lattimore,

87 F.3d 647, 650 (4th Cir.1996) (en banc). Of particular

relevance here, the factfinder must consider "the possibly

vulnerable subjective state of the person who consents."

Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041.

EE ES"---~-s—tr

App. 27

In addition to the characteristics of the consenter, the

factfinder must also look to the circumstances of the request

for consent. See Lattimore, 87 F.3d at 650. Indeed, the

remand by the Supreme Court in Ferguson II, requiring us

to determine whether Appellants gave their informed

consent to the searches, rests upon the particular factual

circumstances of this case. Simply put, the circumstances of

the encounter between Appellants and those conducting the

searches were unusual. In the vast majority of cases,

consent to search is requested by one known to the suspect

to be a law enforcement officer. Here, in contrast, any

request for consent was made by medical personnel acting

(unknown to Appellants) as agents of law enforcement.

In remanding for further consideration of the consent issue,

the Supreme Court set specific parameters tailored to these

unique circumstances, as indicated by its decision to use the

term "informed consent." language that does not appear in

the Court's other consent-to-search cases. Under these

parameters, Appellants’ knowledge of law enforcement

involvement in the Policy is critical to the existence of

informed consent. The Court admonished that "when

[medical personnel] undertake to obtain ... evidence from

their patients for the specific purpose of incriminating those

patients, they have a special obligation to make sure that

the patients are fully informed about their constitutional

rights." /d. at 85, 121 S.Ct. 1281 (citing Miranda y.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), by comparison); see id. at 78, 121 S.Ct. 1281

(noting that in special needs cases involving urine drug

screens, "there was no misunderstanding about the purpose

of the test"); id. at 78 n. 13, 121 S.Ct. 1281 (stating that

nothing in mandatory reporting laws "would .. lead a

patient to anticipate that hospital staff would intentionally

set out to obtain incriminating evidence ... for law

enforcement purposes"). Thus, the Court made abundantly

App. 28

clear in Ferguson I] that any finding of informed consent

must rest on a determination that Appellants had

knowledge, from some source, that no medical purpose

supported the testing of their urine for cocaine; further,

Appellants must have understood that the tests were being

conducted for the law enforcement purpose of obtaining

incriminating evidence. Phrased somewhat differently,

critical to the question of whether Appellants voluntarily

consented to the searches is the antecedent question of

whether they understood that the request was not being

made by medical personnel for medical purposes, but rather

by agents of law enforcement for purposes of crime

detection.'* See Gouled v. United States, 255 U.S. 298, 305-

06, 41 S.Ct. 261, 65 L.Ed. 647 (1921) (holding that suspect

did not consent to search of his office by granting

admission to friend who claimed to be making social call

'* The Ferguson I] opinion went so far as to suggest that, in

addition to the heightened burden of proving informed

consent, Appellees should also be required to demonstrate

that Appellants were aware of their constitutional night to

refuse to consent. See id. at 85, 121 S.Ct. 1281. This

language is in some tension with Schneckloth, in which the

Court held that "[wJhile knowledge of the night to refuse

consent is one factor to be taken into account, the

government need not establish such knowledge as the sine

qua non of an effective consent." Schneckloth, 412 U.S. at

227, 93 S.Ct. 2041. We need not decide whether the Court

truly intended to impose this additional burden, because

Appellees cannot meet the burden of demonstrating

Appellants’ informed consent to the searches even under the

more lenient standard discussed above.

App. 29

but in fact, unbeknownst to suspect, was a government

agent).

Appellees assert that the tests were, in fact, done for

medical purposes. Insofar as the intent of the Policy was to

provide medical assistance to the women and their unborn

and newly born children, this may be an accurate statement.

In the context of Appellants' Fourth Amendment claim,

however, to say that the searches were motivated by

medical purposes is to say that the collection and testing of

the urine was done independently of the Policy. We

emphasize that there was no evidence introduced into this

record to support the conclusion that any of the searches

here would have been conducted in the absence of the

Policy; for that reason, we are compelled to proceed on the

basis that the primary purpose of the urine drug screens was

crime detection, not medical treatment. Cf Ferguson II,

532 U.S. at 78 n. 13, 121 S.Ct. 1281 (noting difference

between reporting of information "acquired in the course of

routine treatment” and "intentionally set[ting] out to obtain

incriminating evidence ... for law enforcement purposes").

We note also that the parties agree that Appellees bore the

burden of proving, by a preponderance of the evidence, that

Appellants had consented to each of the searches.'> There

'S While the district court instructed the jury to consider

each Appellant individually, it did not charge the jury that it

must consider each search individually to determine

whether that Appellant gave informed consent to that

particular search. Such an instruction should have been

given, since each taking and testing of a patient's urine under

the Policy constituted a separate search for purposes of the

Fourth Amendment. We appreciate the difficulty faced by

App. 30

is some dispute among the courts of appeals regarding

which party bears the burden of proving consent, or the

absence thereof, in a civil suit alleging a violation of the

Fourth Amendment. See Trulock v. Freeh, 275 F.3d 391,

401 n. 4 (4th Cir.2001) (citing cases). Because this case was

litigated by all parties on the premise that Appellees had

voluntarily assumed the burden of proof, we will assume

for purposes of this decision that the burden of proof rested

on Appellees.

With these principles in mind, we proceed to an

examination of the evidence pertaining to each Appellant to

determine whether a rational jury could have found that that

Appellant consented to the taking and testing of her urine

by agents of law enforcement for the purpose of obtaining

evidence of criminal activity. Initially, we consider whether

either the ambulatory consent form or the general consent

form was adequate to establish Appellants’ informed

consent.'° As noted above, the relevant language of the

the district court in issuing clear, concise instructions in a

multi-party, multi-issue lawsuit. Nevertheless, on remand

the district court should present the damages issue to the

jury in a way that allows the jurors to assess damages for

each Fourth Amendment violation suffered by each

Appellant.

'© Appellees assert that once an Appellant signed either the

ambulatory or the general consent form, informed consent

‘ was established for all future searches of that Appellant.

Since we conclude that neither form was adequate to

establish informed consent for Fourth Amendment purposes,

we do not address this argument. We note, however, that

App. 31

forms provided that the patient consented "to ... testing for

drugs if deemed advisable by or necessary in the

professional judgement of the physician or surgeon," J.A.

1443 (ambulatory consent form), or that the patient

consented "to the testing of drugs if deemed advisable by

my physician," id. at 1442 (general consent form). Neither

this language, nor anything else in either form, advised or

even suggested to Appellants that their urine might be

searched for evidence of criminal activity for law

enforcement purposes. Rather, to the extent the forms

alerted Appellants to the possibility that their urine would

be tested for drugs, Appellants were led to believe that such

tests would be conducted only if an Appellant's treating

physician deemed such a test advisable in the particular

circumstances of that Appellant's medical care. As

discussed above, there is no evidence that any of the urine

drug screens were conducted as a result of a doctor's

independent medical judgment; to the contrary, it appears

that all of the tests were performed pursuant to the strictures

of the Policy. We therefore conclude that, as a matter of

law, neither the ambulatory consent form nor the general

consent form could serve as sufficient evidence of

Appellants' informed consent to the searches.!” Cf. Stoner

Appellees are essentially claiming that consent to one search

necessarily establishes consent to all future searches. This Is,

to say the least, a dubious assertion.

'’ Even if informed consent could be inferred from the

signing of the general consent form, the legitimacy of such

an inference would be doubtful as to some of the Appellants.

Sandra Powell, for example, never signed a general consent

form when she was admitted to the MUSC hospital for the

delivery of her child. Rather, because Powell was in active

ee er ee

App. 32

v. California, 376 U.S. 483, 489-90, 84 S.Ct. 889, 11

L.Ed.2d 856 (1964) (holding that express or implied

consent of hotel guest for entry by maids, janitors, or

repairmen did not extend to entry by police officers to

search for evidence of crime).

Because neither the general nor the ambulatory consent

form establishes express consent to a search for evidence of

criminal activity for law enforcement purposes, we must

consider whether Appellants gave implied consent, i.e.,

whether Appellants had knowledge of the Policy from one

or more sources and implicitly consented to the searches by

thereafter going to MUSC for treatment. Courts generally

are reluctant to infer consent from mere notice followed by

voluntary conduct. See McGann v. Northeast Ill. Reg'l

Commuter R.R. Corp., 8 F.3d 1174, 1180-81 (7th Cir.1993)

(stating that notice and voluntary conduct are "necessary

~ but not sufficient conditions" for impiied consent). For the

reasons set forth below, we conclude that the evidence

presented at trial was insufficient for a rational jury to find

that Appellants implicitly consented to the searches. First,

as to many of the Appellants, there simply is not enough

evidence to justify a finding of knowledge of the critical

portions of the Policy--namely, that the Policy involved

searches of patients’ urine for evidence of criminal activity

for law enforcement purposes. Second, even if all of the

Appellants could be found to have had such knowledge, no

rational jury could conclude that Appellants voluntarily

submitted, for purposes of the Fourth Amendment, to

treatment at MUSC.

labor, the form was signed by her mother. Appellees

maintain that Powell's mother had authority to consent to a

search of her daughter's body, but we are aware of no

evidence in the record supporting such a conclusion.

App. 33

1. Knowledge of the Policy

a. Lori Griffin

Griffin was searched under the Policy during a hospital

admission for preterm labor in early October 1989.'® When

Griffin was subjected to the Policy, neither the Solicitor's

letter nor the "To Our Patients" letter was in use, and the

PSA had not yet begun to air. And, no testimony was

elicited from Griffin regarding any knowledge she had of

the Policy. There was therefore no evidence from which a

rational jury could infer that Griffin had knowledge of the

terms of the Policy.

b. Sandra Powell

'S Griffin's urine also tested positive for

cocaine in June, during a_ pre-natal

appointment at the MUSC clinic. Since the

Policy had not been developed at that time,

that test does not fall within the ambit of

this lawsuit, which challenges only

searches conducted pursuant to the Policy.

Appellees argue that the Policy did not exist until it was

adopted by the MUSC Executive Committee in early

November 1989, and thus the search of Griffin's urine--along

with the searches of Sandra Powell's and Laverne Singleton's

urine--are not within the scope of this lawsuit. The evidence

at trial, however, established that the Policy, including the

involvement of law enforcement (as evidenced by the arrests

of Griffin and Powell for positive urine screens in early

October 1989), was operational even before its adoption by

the Executive Committee.

App. 34

Powell's urine tested positive for cocaine when she

delivered her son in October 1989.'? As with Griffin,

Powell was not provided with any documents related to the

Policy and was searched under the Policy before the PSA

began to air. Furthermore, there is no evidence that Powell

was aware of the Policy prior to the search of her urine. We

accordingly conclude that the evidence was insufficient for

a rational jury to find that Powell had knowledge of the

Policy.

c. Laverne Singleton

Singleton first tested positive for cocaine in connection

with the birth of a child in November 1989. When

confronted with the positive test, Singleton informed Nurse

Brown that she had given permission for the urine screen

"because she thought she was clean." J.A. 1862 (internal

quotation marks omitted). This statement clearly indicates a

before-the-fact awareness by Singleton that her urine would

be tested for cocaine. However, the question for the jury

was not simply whether Singleton knew that her urine

would be tested; rather, the question was whether Singleton

knew that her urine would be searched for evidence of

criminal conduct for law enforcement purposes. Appellees

note that Singleton "was arrested after another Appellant's

'? Powell’s urine also tested positive for cocaine in May

during a prenatal appointment at the MUSC clinic. This test

does not fall within the ambit of this lawsuit.

Powell's son also tested positive for cocaine in October

1989. This lawsuit does not include a claim by or on behalf

of Powell's son.

App. 35

well- publicized arrest." Supplemental Br. of Appellees at

25. Even assuming that Singleton's knowledge of this arrest

would be sufficient for a rational jury to infer her

knowledge of the critical provisions of the Policy, there is

no evidence that Singleton was aware of the arrest. The

mere fact that an arrest was "well-publicized" provides no

indication that a particular individual was aware of the

publicity. We therefore conclude that there is no evidence

from which a rational jury could infer Singleton's

knowledge of the critical portions of the Policy.

Singleton's urine was searched again in November 1990,

after she delivered a baby in an ambulance en route to

MUSC. Although it is a close question, we conclude that a

rational jury could infer that Singleton had knowledge of

the critical aspects of the Policy when she gave this sample

of her urine. A year earlier, Singleton had been arrested by

law enforcement officers after her urine tested positive for

cocaine. The connection between the positive urine drug

screen and the arrest could not have escaped Singleton's

notice, and a rational jury could determine that the

connection between the urine drug screen and the arrest was

sufficient to apprise Singleton that the November 1990

urine drug screen was going to be performed for law

enforcement purposes.

d. Pamela Pear

Pear's urine was searched under the Policy during a prenatal

appointment at the MUSC clinic in July 1990 and during an

admission to the MUSC hospital for preterm labor in

August 1990. At trial, Pear testified that she was aware, at

the time of these searches, that women were being arrested

based on positive urine drug screens. Specifically, Pear

agreed that "before going to MUSC for ... prenatal care [she

App. 36

was] aware that MUSC was testing pregnant women for

illegal drugs" and that "there was a policy regarding

arresting pregnant women [who] used illegal drugs during

... pregnancy." J.A. 444. This evidence is sufficient to

support a finding of knowledge by a rational jury.

e. Paula Hale

Hale delivered a baby at MUSC in December 1990, having

received no prenatal care during her pregnancy. Hale's urine

was searched and tested positive for cocaine. There is no

evidence in the record from which a rational jury could

infer that Hale had knowledge of the Policy.

f. Crystal Ferguson

Ferguson requested a transfer to the MUSC clinic after

viewing the PSA. Accordingly, we must consider whether

Ferguson's viewing of the PSA is evidence from which a

rational jury could infer knowledge of the critical aspects of

the Policy. We conclude that it is not. The PSA simply

informed viewers that cocaine was harmful to fetuses and

that MUSC would provide help to pregnant women who

used cocaine. Nothing in the PSA provided any notice that

the "help" provided by MUSC involved searches of

patients’ urine for evidence of criminal activity for law

enforcement purposes.

According to Nurse Brown's trial testimony, see supra note

6, Ferguson would have received the "To Our Patients"

letter before her urine was searched. We determine,

however, that no rational jury could infer that Ferguson

gained knowledge of the critical aspects of the Policy from

reading this document. As discussed previously, in order to

be considered informed of the critical aspects of the Policy,

Appellants had to understand that MUSC personnel were

App. 37

working with and for law enforcement in testing

Appellants' urine for cocaine. Not only does the "To Our

Patients" letter not impart such information, its text--which

informed readers that law enforcement authorities would

become involved only after continued drug-use problems--

actively negates any such reading. In any event, there is no

evidence that Ferguson read the "To Our Patients" letter or,

having read it, that she came away with the necessary

understanding of the Policy. Any such finding by a jury

would be speculative.

After Ferguson's urine tested positive for cocaine on June

19, 1991, she viewed the video on substance abuse and

signed the Solicitor's letter. In August, when Ferguson

delivered her child, she was again searched pursuant to the

Policy, raising the question of whether the video or the

Solicitor's letter imparted to Ferguson knowledge of the

critical aspects of the Policy. Clearly, no such knowledge

was provided by the video, which was simply a general

production regarding the dangers of prenatal drug use and

which included no discussion of the Policy. And, similar to

the "To Our Patients" letter, the Solicitor's letter provided

no information regarding the coordinated efforts of MUSC

and law enforcement personnel. Certainly, a reader could

infer from the Solicitor's letter that positive urine drug

screens would be reported to law enforcement authorities.

Critically, however, the Solicitor's letter does not inform the

reader that the urine drug screen which prompted the letter

had been a search conducted in conjunction with law

enforcement personnel or, even more importantly, that any

subsequent urine drug screen would be done for law

enforcement purposes. Rather, the only reference to the

involvement of law enforcement personnel concerns the

consequences of a patient's failure to attend substance abuse

counseling or prenatal care appointments. Accordingly,

App. 38

neither of these items provided evidence from which a

rational jury could infer Ferguson's knowledge of the

Policy.

g. Theresa Joseph

Like Ferguson, Joseph also saw the PSA during her

pregnancy. For the same reasons that apply to Ferguson, we

conclude that Joseph's viewing of the PSA did not provide

her with knowledge of the critical aspects of the Policy. The

-same is true of Joseph's later review of the Solicitor's letter.

And, there is no other evidence from which a rational jury

could infer that Joseph had knowledge of the critical

aspects of the Policy.”

h. Patricia Williams

Like Ferguson, Williams requested prenatal care at the

MUSC clinic after learning of the Policy. According to her

testimony at trial, Williams' understanding of the Policy did

not include any awareness that MUSC was searching

patients’ urine for evidence cf criminal activity for law

enforcement purposes. And, there is no other evidence from

which a rational jury could infer that Williams had

knowledge of the critical aspects of the Policy.

i. Summary

2° Joseph did not receive prenatal care from the MUSC

clinic, and so would not have seen the "To Our Patients"

letter. In any event, as discussed above, that document did

not provide information regarding the critical aspects of the

Policy.

App. 39

For the reasons set forth above, we conclude that a rational

jury could have found the requisite knowledge of the Policy

only as to Singleton and Pear. As to the other Appellants,

the evidence does not support a finding of knowledge.

2. Voluntary Conduct

In addition to knowledge, Appellees also bore the burden of

proving voluntary conduct--as earlier stated, a burden they

assumed throughout trial and on appeal. The conduct of

Singleton and Pear particularly, and the remaining

Appellants generally, in presenting themselves to MUSC

for treatment cannot be considered "voluntary" in a

constitutional sense.

As noted previously, one of the critical factors in assessing

voluntariness under the totality of the circumstances is "the

possibly vulnerable subjective state of the person who

consents." Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041.

Singleton was searched for the second time immediately

after she had given birth in an ambulance. The second

search of Pear was performed when she was in preterm

labor. Beyond these specific searches, we note that of the

13 searches discussed in the previous section, six (including

the two searches of Singleton) were performed on patients

who were in active labor or who had given birth

immediately prior to the search (in two cases, by

emergency cesarian section). Another three searches

(including the second search of Pear) were performed on

patients experiencing preterm labor, and two searches--the

June 1991 searches of Theresa Joseph--were performed on

a patient who was seriously ill and in excruciating pain.

App. 40

Medical distress may create a vulnerable subjective state

that is inimical to voluntary consent in two ways. First, a

patient who is in dire need of medical treatment will feel

less free to question or refuse certain portions of that

treatment, even if she is physically capable of doing so.

Second, the physical strain of labor, birth, or serious illness

will have a deleterious effect on the patient's mental

process, limiting her ability to rationally consider whatever

choices she has. While it is true that physical distress does

not invariably vitiate consent, see United States v. Mason,

966 F.2d 1488, 1494 (D.C.Cir.1992), Appellees assumed

and thus bore the burden of proving that despite their

physical condition, Appellants possessed sufficient mental

faculties and awareness to allow them to give informed

consent. No evidence bearing on this issue was presented

by Appellees.

More generally, we note that Appellants were all insured by

Medicaid and that MUSC was the only medical system in

the Charleston area that accepted Medicaid as a form of

payment. Furthermore, the MUSC hospital and clinic were

responsible for treating high-risk pregnancies, into which

category most or all of Appellants fell. Thus, if Appellants

wished to receive prenatal care and assistance at delivery,

the record conclusively demonstrates that they had no

choice but to seek such services at MUSC. And, Appellees

presented no evidence that Appellants would have been

treated if they had refused to provide a urine sample. While

we cannot imagine that such treatment would have been

denied, especially for those patients in medical distress, this

is a matter on which Appellees voluntarily assumed the

burden of proof. Appellees’ failure to present evidence on

this point requires us to assume that Appellants did not

have the option of refusing to be searched and still

obtaining medical treatment. The choice to be searched or

App. 41

forego necessary medical treatment "is the antithesis of free

choice" to consent or refuse.”' Garrity v. New Jersey, 385

U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); cf. id. at

496-97, 87 S.Ct. 616 (holding that choice between

forfeiture of Fifth Amendment right to remain silent and

loss of employment rendered confession involuntary).

This voluntariness inquiry is particularly important as to

Singleton and Pear, the only two Appellants as to whom a

rational jury could find knowledge of the critical aspects of

the Policy. Singleton was in significant physical distress at

the time of the November 1990 search (at which time she

had knowledge of the critical aspects of the policy), which

was performed very shortly after she had given birth. The

second search of Pear occurred when she was in preterm

labor. There is no evidence in the record to indicate that

Singleton and Pear were in a condition to voluntarily

*! It is no answer to suggest that Appellants could simply

have foregone prenatal care, much less assistance at

delivery, in order to avoid application of the Policy. This

much is established by the terms of the Policy itself and the

emphasis MUSC personnel placed on prenatal care. For

example, under the terms of the Policy a pregnant woman

whose urine had once tested positive for cocaine could be

arrested for failing to attend prenatal care appointments.

Furthermore, it is not inconceivable that a woman who fails

to obtain prenatal care could be subject to prosecution for

child neglect. Cf David Abel, Pregnant Sect Member in

State Custody, Boston Globe, Sept. 1, 2000, at Al

(describing case of pregnant woman incarcerated in part

because of refusal to submit to medical examination).

App. 42

consent to a search. And, even though Pear was not in any

physical distress the first time her urine was searched,

Appellees failed to present evidence that would have

allowed a jury to find that she could have received prenatal

care without submitting to a search of her urine, or that she

could have foregone such care altogether. We therefore

conclude that even though Singleton (at the time of the

November 1990 search) and Pear possessed the requisite

knowledge of the policy, a rational jury could not find

voluntariness.

Il.

It may be the case, as Justice Scalia suggested, that the

outcome of this appeal is evidence "that no good deed goes

unpunished." Ferguson I/, 532 U.S. at 104, 121 S.Ct. 1281

(Scalia, J., dissenting). It is certainly disheartening that, as a

result of our holding today, damages may be imposed on

those who acted with the best interest of Appellants and

their children at heart. But, however noble Appellees’

intentions, the regrettable and inescapable conclusion

remains that Appellees did not bear their burden of proving

that they obtained constitutionally valid consent.” [FN22]

2 We note that our review of this case has been hampered in

several respects by sparse evidence in the record. For

example, Appellants did not present evidence regarding

what they believed would happen if they refused to provide

samples of their urine; Appellees, for their part, failed to

present evidence that Appellants could pick and choose

among treatment options. We are mindful of the complexity

of this litigation, and we do not suggest that counsel are to

be faulted for failing to have perfect foresight. We simply

App. 43

We therefore must reverse the denial of the motion for

judgment as a matter of law as to all Appellants except

Ellen Knight, and remand for further proceedings. Because

Knight suffered no constitutional violation, we affirm as to

her. On remand, the district court should conduct

proceedings regarding Darlene Nicholson's standing and

Appellants’ damages.

AFFIRMED IN PART, REVERSED AND REMANDED IN

PART.

NIEMEYER, Circuit Judge, concurring in the judgment in

part and dissenting in part:

Under the limited review that we are now directed to

conduct by the remand order of the Supreme Court and that

is required by the deferential standard applicable to that

review--taking the facts in a light most favorable to the

Medical University of South Carolina--I would affirm the

jury's verdict. Even if I were to apply the new legal

standard for consent articulated in dictum by the Supreme

Court in its remand order, | would affirm with respect to

nine of the appellants, either because the facts support a

finding that the search under Policy M 7 was consented to

with full knowledge or because the appellant's claim did not

implicate the Policy. Under this new standard, I would

reverse the judgment only as to Laverne Singleton because

of an insufficiency of evidence to demonstrate her

observe that complex cases are difficult not only for the

parties and the district court, but also for appellate courts,

which must rely on the record created by the parties.

App. 44

knowledge of the consequences of her voluntarily

supplying a urine sample. My reasons follow.

The ten women who are plaintiffs in this action contend

that Policy M-7 of the Medical University of South

Carolina ("MUSC")--providing that urine samples, given by

certain pregnant women, be screened for the presence of

illicit drugs and that the results be forwarded to law-

enforcement authorities for prosecution--violated their right

against unreasonable searches, as protected by the Fourth

Amendment. The district court rejected MUSC's claim that

the purported searches were justified by the "special needs"

exception to the Fourth Amendment, but, following a trial,

a jury found that each of the ten plaintiffs consented to the

searches, and therefore the Fourth Amendment was not

implicated.

On appeal, we affirmed, but not on the issue of consent. We

concluded that the searches themselves were reasonable

under the "special needs" doctrine, which justifies certain

searches designed to serve non-law-enforcement ends--in

this case the medical interests of the mothers and the

babies--even though law- enforcement means were

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

477 n. 7, 479 (4th Cir.1999); see also Vernonia Sch. Dist.

47J v. Acton, 515 U.S. 646, 652-53, 115 S.Ct. 2386, 132

L.Ed.2d 564 (1995); Mich. Dep't of State Police v. Sitz, 496

U.S. 444, 451-55, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990);

Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97

L.Ed.2d 709 (1987). We grounded our holding on the

conclusion that the urine drug screens conducted under the

Policy were, in fact, for medical purposes wholly

independent of the incidental law-enforcement efforts and

that the law-enforcement efforts were intended to reinforce

the medical purposes. Ferguson, 186 F.3d at 477.

App. 45

On review by certiorari, the Supreme Court reversed our

judgment and remanded the case for further proceedings.

Ferguson v. City of Charleston, 532 U.S. 67, 86, 121 S.Ct.

1281, 149 L.Ed.2d 205 (2001). The only issue decided by

the Supreme Court was whether the MUSC policy was a

search justified by the "special needs" doctrine. On this

issue, the Court concluded:

While the ultimate goal of the program may well

have been to get the women in question into

substance abuse treatment and off of drugs, the

immediate objective of the searches was to generate

evidence for law enforcement purposes in order to

reach that goal. The threat of law enforcement may

ultimately have been intended as a means to an end,

but the direct and primary purpose of MUSC's

policy was to ensure the use of those means. In our

opinion, this distinction is critical.... Given the

primary purpose of the Charleston program, which

was to use the threat of arrest and prosecution in -

order to force women into treatment, and given the

extensive involvement of law enforcement officials

at every stage of the policy, this case simply does

not fit within the closely guarded category of

"special needs."

Id. at 82-84, 121 S.Ct. 1281. Distinguishing its earlier cases

in which it justified drug testing, the Court said that "[i]n

each of those earlier cases, the ‘special need’ that was

advanced as a justification for the absence of a warrant or

individualized suspicion was one divorced from the State's

general interest in law enforcement." /d. at 79, 121 S.Ct.

1281. The Court then reiterated its basis for concluding

differently in this case, stating that "the central and

indispensable feature of the policy from its inception was the

App. 46

use of law enforcement to coerce the patients into substance

abuse treatment." /d. at 80, 121 S.Ct. 1281.

The Court explicitly did not review the question of whether

the patients gave their consent to the searches, as the jury had

found. Rather, on this point, the Court said, "[W]Je

necessarily assume for purposes of our decision--as did the

Court of Appeals--that the searches were conducted without

the informed consent of the patients." /d. at 76, 121 S.Ct.

1281; see also id. at 77, 121 S.Ct. 1281. After reversing on

the one issue that it did decide, the Court remanded the case

for our review on the previously unreviewed question of

whether the jury had evidence to support its finding of

consent. As dictum, the Court explained that hospital

employees have "a special obligation to make sure that the

patients are fully informed about their constitutional rights, as

standards of knowing waiver require." Jd. at 85, 121 S.Ct.

1281. In making that statement, however, the Court did not

review its jurisprudence of consent, nor did it appear to be

adopting a new standard for giving consent and thereby

overruling the pre-existing law. Under the pre-existing law,

consent to waive a Fourth Amendment nght did not depend

on a knowing and intelligent decision or on full or accurate

information but rather whether the defendant "voluntarily"

provided the information, regardless of whether the act was

knowing or intelligent or whether the inducement was

complete, true, or accurate. See, e.g., Schneckloth v.

Bustamonte, 412 U.S. 218, 235-46, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973); Hoffa v. United States, 385 U.S. 293,

300-02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Were it

otherwise, the procedures of law enforcement would have

been dramatically changed, and doubt would be cast upon

virtually every consent that is routinely given today without

full knowledge of the consequences. See Schneckloth, 412

App. 47

U.S. at 243, 93 S.Ct. 2041 (noting that it would be "next to

impossible" to apply such a standard).

If mere "voluntariness" remains the correct standard for

waiving a governmental search, then it is beyond dispute that

the jury had, in each instance in this case, sufficient evidence

to support its finding of voluntariness. There is no evidence

that any patient was compelled to provide a urine sample or

that any patient objected to providing one when requested to

do so by medical authorities. And the majority agrees with

this observation. See ante at 390 n. 8. Indeed, even before

adoption of Policy M-7, it was established medical protocol

to obtain urine samples for medical purposes when the

patient presented signs that she may have been on drugs

during her pregnancy. As testified to by Nurse Shirley

Brown, the Obstetrics Case Manager at MUSC, MUSC had

been following such a medical protocol before adoption of

Policy M-7, and the adoption of Policy M-7 in October and

November of 1989 was only intended to put teeth into the

pre-existing protocol by systematically subjecting the patient

to the possibility of prosecution for the abuse of drugs

revealed by the drug screen tests.

But even if the standard suggested by the Supreme Court by

dictum turns out unwittingly to be a new standard, the

evidence, in my judgment, supports the jury's finding of

consent in favor of MUSC in at least five of the instances

presented. Under this "new" standard, the inquiry stated by

the majority is the appropriate one: (1) did the patient have

knowledge that the urine screens could be used as a basis for

arresting the patient and (2) did the patient, having that

knowledge, provide the urine samples voluntarily. Because

there is no evidence that the urine samples were coerced, the

only factual question is whether the patients provided those

samples with knowledge that the test results might be used

for prosecutorial purposes.

App. 48

In reviewing the jury's findings in this case, it is important

first to understand the law that the jury was applying. The

district court, after telling the jury that there were no search

warrants in this case, instructed the jury that any finding of

a constitutional search depended on the patient's consent.

The court said:

There not being a warrant issued, [the searches] are

unreasonable and in violation of the Constitution of

the United States, unless the defendants have shown

by the greater weight or preponderance of the

evidence that the plaintiffs consented to those

searches.

* * *

[I]t is conceded by the parties that if the searches

were consented to then they are constitutional. And

again you may reach a different conclusion as to

consent from plaintiff to plaintiff. That doesn't have

to be so, that's dictated by the facts. But it doesn't

mean that if there is consent in one case that there is

necessarily consent in the other or vice versa.

Again, you have to look at the facts that relate to

each plaintiff and reach a decision on the question

of consent.

After telling the jury that the State carried the burden of

proving consent, the court then proceeded to explain how

the jury was to conclude whether each defendant consented:

The matter of consent more often than not is

discussed in terms of voluntariness and willingness

to give the consent. But before there can be any

voluntariness, before there can be any consent, there

App. 49

must be knowledge. The person giving the consent

must have knowledge of what she is doing. It's

basic that before you can consent to something, you

have got to know what it is. You have to have

enough information to know what is being done

before you can consent to it. And the scope of the

consent must be broad enough to include the search

in question. Consent for one purpose may be broad

enough to cover one actor, but may not be broad

enough to cover another actor.

The written consent in this case may be sufficient to

cover the taking of a urine sample and the testing

thereof by Medical University of South Carolina

officials alone, but it is not sufficient to cover the

sharing of that information with law enforcement

officials. That written consent is not sufficient

consent to warrant a search where the search

information is furnished to law’ enforcement

officers. There must be something in addition to

that written consent before you can say that these

were consent searches.

And therefore to show that there is a valid consent

: in this case there must be something else that

convinces you that the plaintiffs consented not only

to the taking of this urine for the use by the medical

people, but also the sharing of it with law

enforcement people for the _ possibility of

prosecution for drug offenses.

(Emphasis added).

App. 50

Thus the district court instructed the jury to decide both

whether the plaintiff--patients had knowledge that their urine

screens could be used to prosecute them and whether their

giving urine samples, in light of this knowledge, was

voluntary. And applying these instructions to the facts, the

jury found that each of the appellants knowingly and

voluntarily consented to the searches.

Ill.

Recognizing that the jury was not misinstructe@, even under

the "new" standard, we need only concern ourselves with

the question of whether there was evidence from which the

jury could reasonably have reached the conclusion that

consent was in fact given. Benesh v. Amphenol Corp. (In re

Wildewood Litig.), 52 F.3d 499, 502 (4th Cir.1995). In

applying this standard of review, we take the evidence in a

light most favorable to MUSC. Jd.

The record shows that before Policy M-7 was adopted in

mid-October or November 1989, MUSC utilized a medical

protocol solely for medical reasons to test urine samples of

pregnant women who presented themselves with certain

medical conditions. Nurse Brown testified that, under this

pre-Policy medical protocol, "if people met certain criteria

that were listed that were published by the faculty, you

know, to go out into the clinics that the following are

indicators and would need to be screened, you know, for

medical evaluation, then they would have [been screened]."

She explained that the urnne screen for drugs would be

prescribed under the protocol if the patient had "no prenatal

care, late prenatal care, abruptio placentae, intrauterine fetal

death, preterm labor, and there was one other one that was

supposed to be screened prenatally or at delivery." This

App. 51

protocol was adhered to by all physicians and was

communicated to medical residents by memorandum. Thus,

when a patient was abrupting, "the placenta was separating,

[and] it was putting her life and [the] baby's life in

jeopardy, ... the physician order[ed] a [urine drug] test as

part of many tests that they order." Under the protocol, if

the drug screen proved positive for drug abuse, the woman

was counseled about the harmful effects of drugs on her

and her child and was referred to substance abuse

treatment. No one has argued that this pre-Policy medical

protocol involved an unconstitutional search.

Policy M-7, the subject of this case, was agreed upon by

MUSC, the police, and the solicitor (chief prosecuting

attorney) on or about October 12, 1989, when the police

department sent Nurse Brown a proposed form of the

Policy to which the various entities had agreed orally. This

communication was followed by a memorandum dated

October 17 actually announcing the "policies concerning

drug abusing pregnant women." And, thereafter, Policy M-

7 was formally adopted as part of the MUSC medical center

policy manual on November 27, 1989. As announced and

informally adopted, Policy M-7 included a form solicitor's

letter dated October 18, 1989, addressed to patients and

candidly waming them of their potential arrest: "Please

understand that by using drugs during pregnancy, you are

risking death or at least severe long-term harmful effects to

your baby. If you fail to obtain Substance Abuse and Pre

Natal Care, you wi// be arrested by Charleston City Police

and prosecuted by the Office of Solicitor." The date of the

solicitor's letter, which was to be employed as part of the

Policy, confirms when Policy M-7 was_ informally

implemented, as does the testimony of Nurse Brown.

Summarizing her testimony, the district judge stated, "She

has testified, as | understand it, to two things. She said late

App. 52

October of '89 or the first part of November of '89 the

policy was first adopted," and the plaintiffs' attorney agreed

with that summary. (J.A. 587.) In short, on or about

October 17 or 18, 1989, Policy M-7 was first adopted,

albeit informally, and beginning then, it authorized drug

screening, the results of which could be used to support

arrests of pregnant women.

A modification of Policy M-7, providing a second chance

to patients testing positive for drugs if they successfully

completed treatment, was adopted in January 1990. And

during this period, a public service announcement was

developed and broadcast publicly and privately to patients.

That announcement stated:

When you're pregnant, just one line of cocaine, a

single hit of crack, rushes to your baby's body and

brain. Within minutes your body can be jolted into

premature labor risking a still developing child to

stroke, even death. And not only will yeu live with

the guilt, you could be arrested.

But this is a tragedy you can prevent. If you have a

( problem with drugs talk to your doctor or call

MUSC at 792-6437. Trained counselors will guide

you through drug rehabilitation and advise you

about good prenatal care. And if you stay with the

program, you will not be arrested or prosecuted.

Wake up from the nightmare. Think about your

baby first.

It is against these facts about when Policy M 7 was adopted

and implemented that we must consider the personal

circumstances of the appellants in this case.

App. 53

The record evidence shows that Lori Griffin and Sandra

Powell each gave urine samples to MUSC under MUSC's

medical treatment protocol as it existed before adoption of

Policy M-7 and thus the screens were not searches

implicating the Fourth Amendment. Griffin signed an

ambulatory consent form on June 28, 1989, then gave a

urine sample, and tested positive for cocaine. On October 7,

1989, again before Policy M-7 was adopted, Griffin went to

MUSC for pre-term labor. During this admission, she gave

another urine sample that tested positive for cocaine. As she

was released from the hospital, she was arrested on the

basis of the positive showing and remained in custody until

she delivered her baby on October 26. In January 1990,

Griffin was indicted for possession of cocaine and

distribution of cocaine to a minor on October 6 and 7, 1989,

as revealed by medical testing conducted before the

implementation of Policy M-7.

Powell similarly signed an ambulatory consent form on

May 24, 1989, when she came to MUSC for prenatal care

before Policy M-7 came into effect. On October 13, 1989,

she was taken to MUSC in an ambulance when she went

into labor, and at the time of ihat admission, a urine sample

was provided. It tested positive for cocaine, and the next

day, Powell was arrested on the basis of that medical record

for her cocaine abuse. Again, all of this occurred before

adoption of Policy M-7.

With respect to each of these patients, I submit that, and

certainly the jury could have found that, the urine tests were

conducted pursuant to the medical protocol in existence

before Policy M-7 and that the urine samples were

App. 54

voluntarily provided for medical reasons. No appellant has

contended that the medical protocol as it existed before the

adoption of Policy M-7 in mid-October and early

November 1989 was conducted for prosecutorial purposes

and thereby violated the Fourth Amendment.

With respect to the urine samples provided by Pamela Pear,

Paula Hale, Crystal Ferguson, Theresa Joseph, and Patricia

Williams, Policy M-7 was fully in effect. But in each case,

when a sample was taken and tested, the prosecutorial

potential was explained to the patient. Indeed, the majority

opinion agrees that Pear was aware that MUSC was testing

pregnant women for illegal drugs and that she knew that

MUSC had a policy regarding arresting women who used

illegal drugs during pregnancy. Hale similarly had full

knowledge of the Policy. She came to MUSC on December

13, 1990, and delivered a baby. Urine samples provided at

her delivery tested positive for cocaine. She signed a copy

of the solicitor's letter specifically warning of arrest and has

admitted to knowing at the time that drug screens at MUSC

were being used to support arrests of pregnant women. And

Ferguson likewise had full knowledge. She came to MUSC

because she was using drugs and needed help. She signed

the consent form, viewed the public service announcement

warning of dangers of using drugs and warning that she

could be arrested, and signed the solicitor's letter, which

specifically warned patients that they could be arrested.

Again, Joseph also saw the public service announcement

and, on presenting herself to MUSC, signed a consent form.

In addition, she signed the solicitor's letter specifically

warning her of the potential for arrest. Finally, Williams

specifically asked to be transferred from North Charleston

Health Department to MUSC for prenatal care because of

her drug problem. She had heard about the MUSC policy

and admitted knowing that MUSC was testing women for

App. 55

the presence of drugs. When she -presented herself at

MUSC, she signed the consent form and tested positive.

She was then shown the video on substance abuse, given 2

copy of the solicitor's letter and scheduled for an

appointment at the Charleston County Substance Abuse

Center. With this information, Williams gave urine samples

on two occasions thereafter, as well as an additional time at

the delivery of her baby. On each of these three occasions,

she tested positive for drug abuse. Thus, with respect to

each of these five appellants, the record amply supports the

jury's conclusion that the patients were fully informed of

prosecutorial purposes when they provided their urine

samples for drug testing.

The facts relating to Laverne Singleton are distinguishable

from these five and do not support a finding that she

consented to use of test results for prosecutorial purposes.

Singleton delivered two children through the medical

assistance of MUSC. In connection with her first child,

delivered on November 9, 1989, a postpartum urine screen

tested positive for cocaine. She had received no prenatal

services at the obstetrics clinic. She admitted at the time

that she consented to the urine drug screen because she

"thought she was clean." Based on the November 9 test, she

was arrested. During the course of a second pregnancy in

1990, she had two positive drug screens. When she was

admitted for delivery in November 1990, she again tested

positive for cocaine. As an alternative to arrest for drug

abuse, Singleton voluntarily admitted herself to inpatient

treatment at the MUSC Institute of Psychiatry. While her

arrest in 1989 shows her knowledge of the Policy when she

submitted samples with respect to her second pregnancy

and delivery in 1990, the record fails to support a finding

that she had knowledge of the Policy or of prosecutorial

purposes when she was tested in 1989. Accordingly, under

App. 56 .-

the "new" standard under which we are now considering

Singleton's claim, I would conclude that a reasonable jury

could not find that Singleton consented to the search in

1989 that led to her arrest.

With respect to Ellen Knight, the majority opinion

concludes that she does not have standing to assert a claim

because only her child's urine was tested. I agree. And with

respect to Darlene Nicholson, the majority opinion

concludes that she was tested after the Policy had been

discontinued. While the majority opinion would remand

Nicholson's claim to determine whether in fact she was

searched under the Policy, I respectfully submit that the

burden is on Nicholson to demonstrate that she was

searched pursuant to the Policy, and she has failed to carry

that burden.

In adopting, modifying, and implementing Policy M-7,

MUSC has made a serious effort to address a serious

problem--a problem that exists not only in South Carolina

but also nationwide. Drug abuse by pregnant women harms

the woman as well as the fetus that she carries, permanently

injuring the fetus and imposing on the baby a life-time of

problems from birth. Far beyond the problems of the

mother and child are the enormous social problems borne

by the community. Even as well-intended as Policy M-7

may be, it must nonetheless comport with constitutional

constraints. The Supreme Court has concluded that

coupling the medically necessary drug testing of women

who present evidence of drug abuse with the concomitant

purpose of prosecuting them based on the results of the

drug tests is not justified by a "special needs" exception to

the Fourth Amendment. The Court held that only if such

testing were, as a factual matter, consented to could such a

App. 57

search be made, and on the consent question, the Court

committed the issue to us to resolve.

I respectfully submit that the record amply supports the

jury's finding that all of the women voluntarily supplied

urine samples for testing. And, if we must require an

informed consent, the record amply supports the jury's

finding that five of the women--Pamela Pear, Paula Hale,

Crystal Ferguson, Theresa Joseph, and Patricia Williams--

knowingly consented to the searches and that four other

women do not have claims because three--Lori Griffin,

Sandra Powell, and Darlene Nicholson--submitted urine

samples under a purely medical protocol, and Ellen Knight

was never personally tested under the Policy. Only as to

Laverne Singleton does the evidence fail to support the

district court's judgment under this standard.

Accordingly, on remand from the Supreme Court, I would

affirm, or, alternately, I would reverse the judgment of the

district court as to Singleton and affirm as to the other

appellants.

App. 58

United States Court of Appeals

Fourth Circuit

No. 97-2512

Crystal M. FERGUSON; Paula S. Hale; Ellen L. Knight;

Patricia R. Williams; Lori Griffin; Pamela Pear; Sandra

Powell; Laverne Singleton; Theresa Joseph; Darlene M.

Nicholson, Plaintiffs-Appellants,

and

State-Record Company, Incorporated; The Evening Post

Publishing Company, Intervenors-Plaintiffs,

¥.

CITY OF CHARLESTON, SOUTH CAROLINA;

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, Dr.;

Melvyn Berlinsky; Patricia T. Smith; M.J. Cooper;

Herbert C. Granger; Robert C. Lake, Jr.; Phillip D. Sasser;

Claudia W. Peoples; Carroll V. Bing, Jr., Dr., as

Trusteesof the Medical University of South Carolina in

their official capacities; Reuben Greenberg; Charles

Molony Condon; David Schwacke; Shirley Brown,R.N.;

Edgar O. Horger, III, M.D.; Victor Del Bene; John

Sanders; William B.Pittard, M.D.; Roger Newman, M.D.;

Harold Bivens, M.D.; MelesiaHenry, R.N., personally and

in their official capacities, Defendants-Appellees.

App. 59

Center for Constitutional Rights; South Carolina Medical

Association; American Public Health Association;

American Academy on Physiciaa and Patient; Society of

General Internal Medicine; American Academy of

Addiction Psychiatry; Association of Maternal and Child

Health Programs; National Medical Association; Global

Lawyers and Physicians; Adrienne Asch, Ph.D., M.S.;

John Arras, Ph.D.; Jeffrey Blustein, Ph.D.; James

Campbell; Arthur Caplan, Ph.D.; Nancy Neveloff Dubler,

J.D.; Ruth Faden, Ph.D., M.P.H.; John Fletcher, Ph.D.;

Jeanine Gage, M.S., R.N., C.S.; Leonard Glantz, J.D.;

Susan Dorr Goold, M.D., M.H.S.A., M.A.; Michael

Grodin, M.D., F.A.A.P.; Jeffrey Kahn, Ph.D., M.P.H.; Jay

Katz, M.D.; Loretta Kopelmann, Ph.D.; Steven Leuthner,

M.D., M.A.; Ruth Macklin, Ph.D.; Mary Faith Marshall,

Ph.D.; Anna C. Mastroianni, J.D., M.P.H.; Steven H.

Miles, M.D.; Lawrence J. Nelson, Ph.D.; Robert M.

Nelson, M.D., Ph.D.; Linda Farber Post, B.S.N., M.A.,

J.D.; Howard B. Radest, Ph.D.; Sally Webb, M.D.,

Amicus Curiae.

On Petition for Rehearing and Rehearing En Banc

Filed January 10, 2003

Appellants filed a petition for rehearing and appellees filed

a petition for rehearing and rehearing en banc.

Judges Wilkins, Niemeyer and Blake voted to deny the

petition for rehearing.

App. 60

A member of the Court requested a poll on the petition for

rehearing en banc. The poll failed to produce a majority of

judges in active service in favor of rehearing en banc.

Judges Widener, Niemeyer and Shedd voted to rehear the

case en banc and Chief Judge Wilkinson and Judges

Wilkins, Luttig, Williams, Michael, Motz, Traxler, King,

and Gregory voted against rehearing en banc.

The Court denies the petition for rehearing and rehearing en

banc.

Entered at the direction of Judge Wilkins for the Court

For the Court,

/s/ Patricia S. Connor

Clerk

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