US Supreme Court Briefs

No. 99-936



IN THE SUPREME COURT OF THE UNITED STATES

CRYSTAL FERGUSON
PETITONER




V.


CITY OF CHARLESTON
Respondent





BRIEF FOR THE RESPONDENTS CITY OF CHARLESTON FILED JULY 24, 2000



This is a replacement cover page for the above referenced brief filed at the U.S. Supreme Court. Original cover could not be legibly photocopied


QIJFS[ION PRESENTIKI) IOI~ RIKVIEW

Whether the urine drug tests p~.i l~irn~ed by lie Ni I JSC Iviedical Center for medical purposes in the course of reatn~ent ot their maternity patients
were reasonable searches under the Fourth Amendiricait?

I. Whether the tin ne drug tests were reasonable na ider tI ic special needs doctrine?

II. Whether the urine drug tests were consensual?


11


TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW
STATEMENT OF THECASE
1
1. Introduction
II. The Special Needs Beyond Normal
Law Enforcement Goals 3
A. The Clinical Need for Urine Drug Tests 4
B. The Epidemic of Cocaine Use by
Pregnant Women 5
Ill. Development of the Policy
5
A. The Initial Protocol 5
B. The Search for an Effective Policy
The Multidisciplinary Task Force 6
IV. The Policy for Management of Drug Abuse
During Pregnancy 8
V. The Effectiveness of the Policy 9
VI. Procedural History 10
VII. Clarification of the Question Presented 12
iii
SUMMARY OF ARGIJMENT 15

The Basic Tenet of the Fourth Amendment
Reasonableness 15
The Special Needs 1)octrine 1 7
Consensual Searches 1 8
ARGIJMENT 18

I. The urine drug screens were reasonable under
the special needs doctrine 1 8
A. The Special Needs Doctrine as Defined
and Applied by the Supreme Court 18
B. There were well-documented special needs
to treat and protect pregnant patients and
and their children 24
C. The Policy was effective 29
D. The intrusion was minimal 32
E. The special needs outweighed the minimal
intrusion 34
II. The Petitioners consented to the searches 38
CONCLUSION
41





iv

TABLE OF AUTHORITIES
Cases
Pag
e

Almeida Sanchez v. United States,
413U.S.266(1973) 16
Bowen v. owens, 476 U.S. 340 (1986) 31
Camara v. Municipal ('curt, 387 U.S. 523 (1967) 16
Chandler v. Miller, 520 U.S. 305 (1997) 23,27,33
Darryl if. v. Coler, 801 F.2d 893 (7th Cir. 1986) 36
kiorida v. .Iimeno, 500 U.S. 248 (1991) 16
Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993) 35, 36

Griffin v. Wisconsin. 483 U.S. 868 (1987) 19, 20, 26,28
McCormick v. England, 328 S.C. 627,
494 S.E.2d 431 (Ct. App. 1997) 13

Michigan Dept. of State Police v. Sitz,
496 U.S. 444 (1990) 32, 35

National Treasury Employees Union v. Von Raah,
489 U.S. 656 (1989) 20, 27,
34
New .Iersey v. T.L.O., 469 U.S. 325 (1985) 15-16, 18-19,
22, 2 5-26, 28
v

5 (~ State Board of Medical Examiners v. Iledgepath.

325 S.C. 166. 480 S.E.2d 724 (1997)

1
3
Nchmerhcr v. (alifbrnia. 384 U.S. 757 (1966) 33

.Schneckloth v. Busiamonie. 412 U.S. 218 (1973)....18.
38,39 Skinner v. Railway Lahor Executives' Association,
489 U.S. 602 (1989) 20, 23. 28. 33, 34,
37

United States v. Atison, 900 F.2d 1427 (9th Cir.),
cert. denied.498 U.S. 961 (1990) 15

Vernonia School District 47.1 v. Acton,
515 U.S.646(1995) 22.24,35
Whalen v. Roe, 429 U.S. 589 (1977) 13.31,33,34

Whitner i'. State of South Carolina, 328 S.C. 1,492

S.E.2d 777 (1995), cert. denied, 523 U.S. 1145 (1998)
7

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

3
5

Williamson i~ Lee Optical of Oklahoma.
348 U.S. 483 (1955)

3
1


Statutes
42 U.S.C. 2000d - 2000d-6 11

S.C. Code Ann. 20-5-5 10 (Law. Co-op. 1976 &
Supp.)...l3
Ohio v. Rohinette, 519 U.S. 33 (1996) 40





STATEMENT OF THE CASE

I. Introduction

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 {"MUSC Medical Center"] pursuant to its policy for ~Management ol I)rug Abuse During Pregnancy." I"the Policf I.

The Petitioners 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 delineated in the Policy as
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, the MUSC Medical Center referred each patient to substance abuse counseling due to the
potential catastrophic medical complications to the fetus associated with matemal cocaine use. And, as required by state law. MUSC also reported the
positive test results to law enforcement. Nine of the ten Petitioners were arrested, but none were prosecuted to trial. Rather, each of the women
completed substance abuse treatment and the charges were dismissed.

In this Section 1983 claim, the Petitioners allege that the urine tests performed for medical purposes were warrantless searches which violated their
Fourth Amendment rights. However, their claims have been rejected at the trial and appellate levels.


2
3
At trial, the jury found that the Petitioners consented to
the tests. On appeal, the court held that the searches were
reasonable under the special needs doctrine as enunciated by
this Court, without reaching the question of the sufficiency
of the evidence to supp~rt the jury's factual finding of
th
consent. 186 F.3d 469 (4 Cir. 1999).

The law and the evidence fully support the findings of
both the jury and the Court of Appeals that the urine drug
screens were reasonable and thus not violative of the Fourth
Amendment. Accordingly, judgment for the Respondents
should be affirmed.

First, the Court of Appeals correctly found no Fourth
Amendment violation under the special needs analysis based
on evidence that the drug screen effectively met special
needs beyond normal law enforcement goals and only
minimally intruded on the Petitioners' privacy rights. More
specifically. the medical expert testimony establishes that
the urine drug screens were medically necessary for
management of pregnant patients and their newborns. In
addition, the documented evidence establishes a broader
special need. namely -- an epidemic of cocaine use among its
maternity patient base and the serious consequent public
health problems and associated fiscal costs.

The clinical necessity for the drug screens, the health
problems associated with maternal cocaine use, and the
astronomical economic costs of caring for infants suffering
from the effects of cocaine use by their mothers all created
special needs beyond normal law enforcement goals. On the
other hand, the urine testing policy was a minor intrusion
on the Petitioners' privacy expectations inasmuch as their
urine
was collected and tested in the regular course of medical
treatment to which they had consented.

In balancing these factors, the Court of Appeals properly
concluded that the MUSC Medical Center's special interest
in protecting the health of its pregnant patients and their
children significantly outweighed the minimal intrusion
suffered by the Petitioners. In addition, the record contains
sufficient evidence to sustain the jury's finding that the
l~etitioners consented to testing. Ultimately, under either
analysis. the searches conducted were reasonable and did not
violate the Fourth Amendment.

II. The Special Needs Beyond Normal Law
Enforcement Goals

In this case, the MUSC Medical Center had not one, but
two, special needs for identifying cocaine use among its
maternity patients, both of which were beyond normal drug
interdiction law enforcement goals. First and foremost, 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. Beyond
that clinical need, there was a broader medical and social
need to stem the tide of an epidemic of maternal drug use
with potentially devastating medical consequences and
staggering social costs. Separately or collectively, these
needs were tmportant enough, if not absolutely compelling,
to justify conducting drug tests on the urine samples
voluntarily provided by the maternity patients.





4
S
A. The Clinical Need for Urine Dru2 Tests

The Respondents presented expert medical testimony
that the use of cocaine can have serious consequences for
both maternal and infant health. Effects on the mothers
include:
creased risk of premature delivery, premature separation of
the placenta (abruptio placentae), spontaneous abortion, and
death. [Opp. App.' 76] Cocaine use during pregnancy can
affect infants in a number of ways, including an increased
risk of sudden death syndrome, low birth weight, seizures,
strokes, heart attacks, lack of bonding, emotional disorders,
behavioral problems, and learning disabilities. [Opp. App.
751 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. [J.A. 35-43; see also J.A. 303-3121 In
some cases, even a single dose of cocaine can kill the baby
and the mother too. [J.A. 431

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 need 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]




Transcript excerpts and exhibits can be found in three appendices
filed with this Court the Appendix ['App."l submitted by the
Petitioners with their Petition for a Writ of Certiorari, the
Appendix li~pp~ App." I submitted by the Respondents with
their Brief in Opposition, and the Joint Appendix lJ.A."1.
B. The Epidemic of Cocaine Use by Pre2nant
Women

In the late l980s and early 1990s, research studies and
medical literature were published documenting a national
epidemic of prenatal illegal drug use and the staggering
associated social and economic costs. [See .l.A. 46. 488] One
study indicated that each year in South Carolina, alone,
approximately 1 5,000 babies suffered from prenatal
exposure to illegal drugs. I Opp. App. 73] Of those, as many
as 3.221 pregnant women, were using cocaine. [Opp. App.
74] In addition to the literature, the medical staff at the
MUSC Medical Center began observing the local effect of
that epidemic in their maternity patients. [l.A. 624-25, 847J

As noted above, the cocaine use by pregnant women
seriously impacts the health of both mother and child.
Prenatal cocaine use also produces staggering societal costs
increased need for neonatal intensive care at birth,
increased needs for social services, foster care, and special
education services, lower levels of achievement of
educational and occupational goals, increased family stress,
and reduced maternal bonding. [Opp. App. 76] The national
costs to care for infants exposed to cocaine were estimated
to rise as high as $3 billion annually. [l.A. 320] The medical
costs for each infant can exceed $50,000 for the first year
alone. Severe exposure can result in lifetime economic costs
in excess of$ I million per infant. [Opp. App. 771

III. Development of the Policy

A. The Initial Protocol

When the MUSC medical staff observed that the national
epidemic had reached Charleston, they established a protocol
in April 1989 to routinely evaluate their maternity patients





6 7


for possible cocaine use. 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 presenting one or more
of these criteria was automatically tested. If a patient tested
positive, she was referred to the county substance abuse
commission for counseling and treatment. However, this
protocol proved to be ineffective when virtually none of
the patients referred followed through with treatment. [J.A.
635-36, 64L Opp. App. 67]

B. The Search for an Effective Policy The
Multidisciplinary Task Force
_ The MUSC Medical ('enter obstetrical and neonatology
staff had a vital interest in maternal and infant health;

_ The Charleston County Solicitor's Office and the City of
Charleston Police [)epartment had an interest in
protecting the infants and enforcing the laws governing
illegal drug use and child abuse and neglect.~

_ The I)epartment of Social Services was charged with
safeguarding the health and welfare for the infants~ and

_ The Charleston County Substance Abuse Commission
was responsible for providing services for treatment of
drug abuse.


Faced with a crisis and lack of success with the voluntary
referral protocol, the Medical Center was still in need of an
effective policy. I)uring this time, Shirley Brown, the case
manager for the obstetrics department learned that under
state law, prenatal cocaine use constituted child abuse and
neglect which the Medical Center was required to report to
law enforcement. [iA. 73]

Ms. Brown mentioned it to the Medical Center's General
Counsel who in turn contacted the Charleston County
Solicitor regarding the hospital's obligation under the state
mandatory reporting statute. hA. 74, 337]

In an effbrt to address the complicated, multidimensional
problem of maternal drug abuse, a multidisciplinary task
force was formed in the fall of 1989, consisting of
representatives from different agencies with varied interests
in formulating a solution: [.1.A. 338-39]
Every person involved in that task force had one
overriding objective -- to develop an effective policy that
would maximize maternal-fetal health and protect the
children: ~'This was not supposed to be a punitive policy
where we went out and punished people for doing
something, even though we knew the activity was illegal.
What we were trying to do is give those babies a chance to
be born normal." tJ.A. 506, lines 19-22]



2 Under South Carolina law, a viable fetus is a 'child" under the
abuse statutes and ingestion of cocaine during the third trimester
of pregnancy constitutes criminal child neglect. Whitner v. State of
South Carotina, 328 S.C. I, 492 S.E.2d 777 (1995), cert. denied,
523 U.S. 1145 (1998). In addition, both agencies are designated to
receive reports of suspected child abuse or neglect. S.C. Code
Ann. 20-5-510 (Law. Co-op. 1976 & Supp.) ("Reports of child
abuse or neglect may be made orally by telephone or otherwise to
the county department of social services or to a law enforcement
agency in the county where the child resides or is found.")





8 9


Since the voluntary referral protocol had proven
ineffective, the substance abuse representative on the task
force proposed the "carrot and stick" method of coercive
treatment as a last resort in dealing with the problem. He
explained that most addicts are in such a state of denial that
they will not voluntarily ~seek help unless there is some
leverage to get their attention. [l.A. 738-40]

The Policy ultimately established provided a three-step
process for identifying and dealing with pregnant patients
that were using cocaine. The first two steps paralleled the
prior protocol, but the addition of a third step threat of law
enforcement intervention provided the necessary
"leverage" to make the Policy effective.

IV. The Policy for Management of Drug Abuse
During Pregnancy

The first step in the implementation of the Policy was
the identification of pregnant patients suspected of drug
abuse. The Policy contained a list of medical symptoms and
indicia of drug abuse to identify which patients were to be
screened by urine testing, to wit: I. No prenatal care; 2.
Late prenatal care after 24 weeks gestation; 3. Incomplete
prenatal care; 4. Abruptio placentac: 5. Intrauterine fetal
death; 6. Preterm labor of"no obvious cause"; 7. IUGR
of"no obvious cause";
8. Previously known drug or alcohol abuse; or 9.
Unexplained congenital anomalies.3 [App. 53-54.]
Like all MUSC patients, the maternity patients signed
consent forms permitting the medical staff to conduct
necessary testing including urine tests.4 In addition, all
maternity patients were provided with educational
information about the harmful effects of prenatal drug
abuse and each patient also signed a statement
acknowledging that she had received counseling.

If a patient tested positive, the second step included
providing the patient with the same educational
int'ormation and referring her to substance abuse
counseling. If the patient failed to follow-up with substance
abuse treatment or prenatal medical visits, or if she tested
positive a second time. the Solicitor's office was notified
and arrests were madef '[his new third step proved to be the
pivotal factor in making this an effective policy.

V. The Effectiveness of the Policy

Contrary to the Petitioners' broad assertions, the record
establishes that the l~olicy was highly effective in educating
women of the dangers and in discouraging cocaine use during
their pregnancies.6 After implementation of the


See forms, Opp. App. 60-65. The Petitioners claim that they did
not give consent for their urine to be tested for drugs. The jury,
however. found that they did consent. See discussion, infra.




This list was not 'medically senseless" as the Petitioners
contend. Rather, the list was compiled by the Medical Center
physicians from the medical literature available at the time,
including articles written by one of the Petitioners' own expert
witnesses, t)r. lra Chasnoti. hA. 155, 286, 302. 3131 Nor was the
list targeted to discriminate against African-American pregnant
women, to the contrary, the list was developed to remove any
discretion for testing. IJA. 8471


During a short period of time when the Policy was first initiated, a
positive test was immediately reported and the patient was
arrested. In early 199t), the Policy was amended to provide the
patients a chance to obtain substance abuse treatment and avoid
arrest. Even after arrest, the patient could avoid prosecution by
completing a drug treatment program.

6 The Policy has been discontinued since this litigation was
initiated.





10 Ii


Policy, the medical staff experienced a decline in the
number of positive drug screens and fewer medical
complications previously attributed to cocaine abuse. [l.A.
681; Opp. App. 67-68] The substance abuse counselors
reported that many of the patients referred by MUSC
benefited from and successfully completed tl~e treatment.
[iA. 64] Even many of the Petitioners themselves admitted
that the Policy helped them successfully complete
treatment and fight their addictions.

Of the 253 patients who tested positive during the
relevant time period, only thirty failed to complete
treatment or tested positive a second time and
consequently, were arrested. Of those thirty, most were
processed through pretrial intervention upon voluntary
completion of substance abuse treatment. Only two neither
of whom is a Petitioner failed to complete treatment and
were prosecuted, but even they were ordered to complete
treatment as a condition of probation rather than sentenced
to an active jail term. [J.A.
1125-26]

Contrary to the Petitioners' supposition, there was no
evidence that the Policy discouraged pregnant women from
seeking treatment at the Medical Center. The TVIUSC data
did not demonstrate any change in the utilization patterns
of their prenatal clinics nor did they identify any increase in
unhooked deliveries at other regional hospitals. [Opp. App.
671

VI. Procedural History

[he l)istrict Court submitted the Fourth Amendment
claim to the jury on the question of whether the Petitioners
consented to the urine drug tests, and judgment was entered
for the Respotidents on the jury's finding that the
Petitioners
had consented to the searches. On appeal. the Court of
Appeals found that the searches were reasonable under the
special needs doctrine and affirmed the judgment for the
Respondents on that ground without reaching the issue of
the sufficiency of the evidence to support the jury's finding
of consent to the urine tests.

In addition to the Fourth Amendment claim, the
Petitioners asserted a number of federal and state law
claims, each of which was properly rejected by the [)istrict
(.'ourt, the trial jury, and the C'ourt of Appeals. None of
these additional claims have been preserved in this appeal.

The Petitioners asserted a constitutional challenge to the
disclosure of medical information to law enforcement
personnel as a violation of their Fourteenth Amendment
right to privacy and a statutory claim for racial
discrimination in violation of Title VI of the Civil Rights
Act of 1964, as amended, 42 U.S.C. 2000d - 2000d-6.
The Petitioners also asserted a state-law tort claim against
the MUSC medical stal'f for abuse of process.

The District Court granted judgment as a matter to law
to the Respondents on the claims of abuse of process and
right to privacy, and the Court of Appeals affirmed those
rulings.

The jury found that the Respondents had not
intentionally discriminated against the Petitioners based on
their race, and the District Court ruled for the Respondents
on the Title VI disparate impact claim. The Petitioners did
not appeal the jury's finding of no intentional racial
discrimination, and the Court of Appeals affirmed the
disparate impact ruling.





12
13
VII. Clarification of the Question Presented

In light of the extraneous arguments and issues raised by
the Petitioners and the petitioning Amici Curiae,
Respondents feel it necessary at the outset to clarify what is
and is not involved in this ~se.

The question presented is whether the urine drug screens
conducted by the MUSC Medical Center were reasonable
searches in compliance with Fourth Amendment
jurisprudence. The Petitioners specifically challenge the
Court of Appeals' ruling that the urine drug screens were
reasonable under the special needs doctrine.

The Respondents maintain that the urine drug screens are
clearly sustainable under the special needs doctrine as
enunciated in this Court's precedent. However, Respondents
also insist that the urine drug screens were reasonable
searches because -- as the jury found -- the Petitioners
voluntarily provided the urine samples and consented to the
testing.

At this stage, there is no issue regarding the alleged
"Unauthorized Disclosure of Medical Information" or
breach of confidentiality by the medical staff. In the first
instance, the Petitioners never asserted state common law
claims for breach of physician-patient confidentiality.

While South Carolina courts have recognized an ethical
duty of confidentiality and a correspondingly tort action for
its breach, that duty is not absolute and disclosures
compelled by law, such as those made by the MUSC Medical
Staff are not actionable:
lAin actionable tort lies for a physician's breach of the
duty to maintain the confidences of his or her patient
in the absence of a compelling public interest or
other justification for the disclosure." (Emphasis
added).


Patients have the right to be candid in their disclosures
of private information to their physicians without
fearing this information will be disseminated throughout
the community. however, this right is not absolute
and must give way when disclosure is compelled
by law or is in the best interest of the patient or
others. (Emphasis added.)

A'fc( 'orniick t'. England. 328 S.C. 627, 494 S.F.2d 431. 439
(Ct. App. 1997): see al.'~o S.('. State Board of Medical
Fra,niners v. Iledgepath, 325 S.C. 166. 480 SJi.2d 724, 726
(1997) ("A physician acts ethically when she maintains
patient confidences, and when she provides confidential
information to others as required by law or as authorized by
the patient."): see also SC'. Code Ann. 20-5-510 (Law.
Co-op. 1976 & Supp.) (mandatory reporting of suspected
child abuse and neglect).

Secondly, the District Court rejected the Petitioners'
Fourteenth Amendment claim of violation of their right to
privacy by unauthorized disclosure of medical information.
On appeal. that ruling was affirmed by the Court of
Appeals, citing Whalen v. Roe. 429 U.S. 589, 602 (1977),
wherein this Court recognized that such statutes requiring
disclosure of otherwise confidential medical information to
state officials does not automatically amount to an
impermissible invasion of privacy. l~he Petitioners did not
seek review of that





14 15


ruling in its Petition for a Writ of Certiorari and the issue
is not before the Court.

Likewise, the Petitioners did not appeal the jury's
finding that the Respondents did not intentionally
discriminate against them based on th~r race. Nor did the
Petitioners seek review of the Court of Appeals'
affirmance of the I)istrict Court's rejection of their
disparate impact claims. Yet, the l~etitioners' brief
contains numerous affecting references to racial animus.
Under these circumstances, their continued insintiations of
racial discrimination are a blatant attempt to invoke the
Court's ire or appeal to its sympathy.
yes. They were reasonable both under the special needs
doctrine and as consensual searches.

SUMMARY OF ARGUMENT

The Basic Tenet of the Fourth Amendment --
Reasonableness

The Fourth Amendment prohibits unreasonable
searches, but it does not require that all government
searches be conducted pursuant to a warrant supported by
probable cause. In New .Jersev v. TL. 0. this Court declared
that the




The Petitioners also attempt to influence the Court by
painting a grim picture of the Petitioners arrests and
conditions of pretrial detention. Ilowever, there is no issue
on appeal regarding the circumstances of their arrests or of
their confinements. And, the evidence presented at trial
rebutted the Petitioners' allegations and demonstrated that
the arrests were properly conducted under standard protocol
and the conditions of confinement were not inhumane nor
were their jailers deliberately indifferent to their medical
needs. The Petitioners also complain about the grounds for
arrest, but this case does not present any qtiestion regarding
the constittitionality of the statutes under which they were
arrested.7

~rlie sole question is whether the urine drug screens were
reasonable. And, based on the facts and law, the answer is


In this same vein, several of the Amid Curiae attack the
imposition of criminal sanctions for maternal drug abuse. However,
this case is not the appropriate venue for these groups to lobby
their political and social policy agenda against criminali,ation of
drug abuse by pregnant women.
The Fourth Amendment onl imposes strictures on government
action. The Respondents have maintained throughout the litigation
that the Medical Center and its staff were not state actors in
conducting clinically necessary drug screens. No case has
exteiided the application of the Fourth Amendment to medical
personnel in a public hospital based solely on their status as
government employees. Ilowever. to the contrary, the Court of
Appeals for the Ninth Circuit has ruled that not all healthcare
providers in public hospitals are acting as agents of the police
subject to the lourtli Amendment in obtaining and testing bodily
tluids in every case. L/njh'd Staie.s v. Aitson, 900 F.2d 1427, 1434
(9 Cir.), cert. denied. 498 tJ.S. 961 (1990).

ihe Fourth Amendment only applies if law enforcement
instigated. encouraced or participated in the "search and the
healthcarc provider engaged in the search with the intent of
assisting the police in their investigative efforts. If there is a "dual
purpose' both medical and investigative -- the search retains its
private character, and if the search is ~'private" at the inception,
subsequent voluntary disclosure to the police does not implicate
the Fourth Amendment.

Here, the medical purpose was undeniably a legitimate.
independent motivation for performing the urine drug screens.
Thus, at worst, there was arguably a "dual purpose.~ In this
situation, the Fourth Amendment simply does not apply to the
conduct of the MUSC Medical Center and its staff.





16 17


"[tihe fundamental command of the Fourth Amendment is
that searches and seizures be reasonable, and although 'both
the concept of probable cause and the requirement of a
warrant bear on the reasonableness of a search ... in certain
limited circumstances neither is required."' 469 U.S. 325.
340 (1985) (quoting Almei*Ja Sanchez v. United States.
413 U.S. 266, 277 (1973)).

The Court stressed that the touchstone~ of Fourth
Amendment analysis is reasonableness and "what is
reasonable depends on the context within which a search
takes place:"

The determination of the standard of reasonableness
governing any specific class of searches requires
"balancing the need to search against the invasion which
the search entails." On one side of the balance are
arrayed the individual's legitimate expectations of
privacy and personal security; on the other, the
government's need for effective methods to deal with
breaches of public order.

Id. at 337 (quoting ('amara v. Municipal ('ourt. 387 U.S.
523. 537 (1967)).

The special needs doctrine comprises one such category
of governmental searches which are reasonable
notwithstanding the lack of a warrant or probable cause.
Likewise, a search is reasonable if conducted pursuant to
consent.
1'he Special Needs Doctrine

This Court has recognized that in certain cases, the
government may have "special needs," beyond normal law
enforcement goals, which make the usual warrant and
probable-cause requirement impracticable

The special needs doctrine applies where there is an
important or compelling special need founded on a
concrete danger. Ultimately, the reasonableness of the
search must be evaluated by balancing the public interest
and the effectiveness of the search in advancing that
interest against the individual privacy' expectations and the
degree of intrusion suffered by' the individuals.

In upholding the N4USC Policy, the Court of Appeals
correctly' applied the principles and adhered to the
parameters set by' this Court. The evidence demonstrates
that the drug screens were medically' necessary for the
treatment of the maternity patients and their children and
that the epidemic of cocaine use by' pregnant women and
the attendant public health problems created important
special needs beyond normal law enforcement goals. The
evidence also establishes that the MUSC urine testing
policy was effective in addressing these special needs and
that the intrusion on the Petitioners' privacy expectations
was minimal. Therefore, the Court of Appeals properly'
found that the searches were reasonable and judgment
should be affirmed on that ground alone.
Ftirido v. ,Iimeno. 500 U.S. 248, 250 (1991) (the touchstone of
the
Fourth Amendment is reasonableness": see also Ohio v. Rohinelle,
519
U.S. 33. 39 (1996) (Reasonableness, in turn, is measured in
oblective
terms b~ examining the totality of the circumstances.)





18 19


Consensual Searches

It is well settled that "a search conducted pursuant to a
valid consent is constitutionally permissible." Schneckloth
v. Busiumonte. 412 1.J.S. 218,, 222 (1973). A valid consent
is one freely' and voluntarily~given. Id This is a question of
fact to be determined from the totality of all the
circumstances. Id. at 227. There is ample evidence to
support the jury's finding that the Petitioners freely and
voluntarily provided the urine samples and consented to the
drug screens. Therefore, the judgment should be affirmed on
this alternate ground.

ARGUMENT

I. The urine drug screens were reasonable under the
special needs doctrine.

A. The Special Needs Doctrine as Defined and
Applied by the Supreme Court

The genesis of the special needs doctrine is found in the
decision of New Jersey v. TL.O., in which the Court
addressed the proper standard for assessing the legality of
searches conducted by public school officials. In that case, a
school principal discovered marijuana and other
paraphernalia while searching a student's purse for
cigarettes. When the principal turned the evidence over to
the police and the state brought delinquency proceedings,
the student moved to suppress the evidence, contending
that the principal had violated her Fourth Amendment
rights.

In upholding the search. the Court found that the
warrant requirement was unsuited to the school
environment and
concluded that the school officials did not need to obtain a
warrant before searching students under their authority. The
Court also concluded that the school officials did not need
probable cause to believe a violation of law has occurred; but
rather, that 'the legality of a search of a student should
depend simply on the reasonableness. under all the
circumstances. of the search. 469 U.S. at 341.

Justice Blackman concurred in the judgment of the
Court, but wrote separately to emphasize the predicate
justification for a warrantless search without probable cause:
"Only in those exceptional circumstances in which special
needs. beyond the nomial need for law enforcement, make
the warrant and probable-cause requirement impracticable, is
a court entitled to substitute its balancing of interests for
that of the Framers." Id. at 351.

The Court adopted Justice Blackman's special needs
analysis in Griffin v. Wisconsin. 483 U.S. 868. 873-74
(1987). in holding that a state's operation of a probation
system constitutes "'special needs' beyond normal law
enforcement that may justify departures from the usual
warrant and probable-cause requirements." 0 Pertinent to the
Courfs analysis was the fact that the probation officer who
conducted the search was not a law enforcement officer:
hut rather, a government employee charged with
supervising his client with the goal of assuring that the
probation served as a period of genuine rehabilitation.


The Petitioners attempt to categorize this case and the other
probation/parole cases separately from special needs" cases on
the grounds that probationers/parolees have lesser liberty rights.
However, a fair reading of the Court's opinion shows that the
decision was based squarely on the special needs doctrine.





20 21


The Court further refined the special needs doctrine in
the companion cases of Skinner v. Railway Labor
Executives' Association, 489 U.S. 602 (1989), and National
Treasury Employees Union v. Von Raah, 489 U.S. 656
(1989), which presented two different drug test policies for
review under the special needs doctrine~

At issue in Skinner were railroad company policies that
required blood, breath and urine testing of its employees
under certain circumstances as mandated or permitted by
regulations of the Federal Railroad Administration.'' The
Court found that "~tjhe Government's interest in regulating
the conduct of railroad employees to ensure safety.
'likewise presents 'special needs' beyond normal law
enforcement that may justify departures from the usual
warrant and probable-cause requirements."' 489 U.S. at 620
(quoting Griffin v. Wisconsin, 483 U.S. at 873-74).

In Von Raah, the Court upheld a policy of the United
States Customs Service requiring a urinalysis test from all
employee applicants for transfer or promotions to certatn
positions. In so holding, the Court succinctly articulated the
following two-step analysis for application of the special
needs doctrine: 'jWJhere a Fourth Amendment intrusion
serves special governmental needs, beyond the normal need
for law enforcement, it is necessary to balance the
individual's privacy expectations against the Government's
interests to determine whether it is impractical to require a
warrant or some level of individualized suspicion in the
particular context." 489 U.S. at 665-66.
In applying the special needs test, the Court found that
the warrant requirement is as unsuited to the employment
situation as it is to the school environment at issue in the
1Vew .h'rscv t'. TL.O. case and that imposing a warrant
requirement '~would only serve to divert valuable agency
resources from the Service's primary mission." Von Raah,
489 U.S. at 666-67. The Court further found that "a
warrant would provide little or nothing in the way of
additional protection of personal privacy," id. at 667.
because the circumstances under which the testing would be
conducted and the permissible limits of the search were
narrowly defined and the employees were well aware of the
policy and its procedures. The Court also found that the
compelling governmental interests justified the urine testing
even in the absence of probable cause or any individualized
suspicions of drug use.

In evaluating the public interest component of the
balancing test, the Court noted that the smuggling of illicit
narcotics has created a national crisis, and that "ttlhe
Customs Service is our Nation's first line of defense against
one of the greatest problems affecting the health and
welfare of our population." Id. at 668. In light of such, the
Court found that the Government has "a compelling
interest in ensuring that front-line interdiction personnel
are physically fit, and have unimpeachable integrity and
judgment." Id at
670. On the other side of the balancing scale, the Court
found that the Customs employees "have a diminished
expectation of privacy in respect to the intrusions
occasioned by a urine test." Id. at 672.




The regulations had been promulgated after the FRA gathered
and evaluated evidence that on-the-job intoxication was a
significant problem in the railroad industry and that alcohol and
drug abuse by railroad employees posed a serious threat to
safety.


The Court ultimately held that the warrantless and
suspicionless testing policy was reasonable because the
Government's "compelling interest in safeguarding our





22
23
borders and the public safety outweigh the privacy
expectations of employees who seek to be promoted to
positions that directly involve the interdiction of illegal
drugs or that require the incumbent to carry a firearm." Id at
677.

The Court revisited th~ application of the special needs
doctrine to a drug testing policy in Vernonia School District
47Jv. Acton, 515 U.S. 646 (1995). After observing a sharp
increase in drug use among the student population and that
athletes were the leaders of the school drug culture, the
school district adopted a Student Athlete Drug Policy that
authorized random drug testing of students who participated
in school athletic programs. The express purpose of the
policy was "to prevent student athletes from using drugs, to
protect their health and safety, and to provide drug users
with assistance programs." Id. at 650.

Relying on its previous decision in New Jersey v. TL.O.,
the Court again found that special needs exist in the public
school context which make the warrant and probable-cause
requirement impracticable. Id at 653. Turning then to the
evaluation of the privacy interests, the Court found that the
students' legitimate expectations of privacy were diminished
because of the supervisory role of the school and the
voluntary participation in extracurricular athletic activities.
On the other side of the equation, the Court found that, with
the clear evidence of an immediate crisis of great
2
proportions, deterring drug use by schoolchildren is an
important governmental concern and it was "self-evident"

2 The District Court had found that 'a large segment of the student
body, particularly those involved in interscholastic athletics, was in
a state of
rebellion;" "Idjisciplinary actions had reached epidemic proportions;"
and "the rebellion was being fueled by alcohol and drug abuse as
well as by the student's misperceptions about the drug culture."
796 F.Supp. 1354. 1357 (Ore. 1992).
the problem was effectively addressed by preventing drug use
by student athletes. Taking all these factors into
consideration, the Court concluded that the policy was
reasonable.

The only case in which the Supreme Court has struck
down a drug testing policy under the special needs analysis is
('handler v. Miller, 520 U.S. 305 (1997). At issue there was
a Georgia statute which required that all candidates for
certain state offices submit to a urinalysis for illegal drug use
and test negative as a precondition to qualifying for a place
on the ballot.

In addressing the espoused justification of the statute
under the special needs doctrine, the Court reviewed and
summarized its decisions in Skinner, Von Raab, and I
'ernonia: 'Our precedents establish that the proffered special
need for drug testing must be substantial -- important enough
to override the individual's acknowledged privacy Interest,
sufficiently vital to suppress the Fourth Amendment's
normal requirement of individualized suspicion. Id at 318.
The Court found that the State of Georgia had failed to
demonstrate any such special need. ~Vhe key to the Court's
decision appears to be a lack of evidence of a concrete
danger that state officeholders in


All of the special needs cases involved warrantless searches,
but they also involved a range of levels of suspicion. The policies
in [on Raul'. ternonia and (hand/er all called for drug testing without
any level of individualized suspicion. In contrast, the policy is
Skinner was based on specific factors that provided the basis for
some level of individualized suspicion. l.ikewise. in ,Veit' .Icrsev v.
TI..U. the search was predicated on individualized suspicion. The
searches in this case were not siispici(inless. The criteria for
performing the test was medically-based. and provided ample
suspicion to believe that the patients had been using cocaine.





24 25


Georgia have drug problems: rather. Georgia merely
presented a "symbolic" need to project its commitment to
the fight against drugs.

The urine drug screens gonducted under the MUSC Policy
meet the guiding princi~4es and parameters of the special
needs doctrine as enunciated by the Court in these cases.
The important if not compelling special needs to treat and
protect the maternity patients and their children were well
documented. The Respondents also presented evidence that
the Policy was effective and only minimally intrusive.
Accordingly, judgment for the Respondents should be
affirmed.

B. There were well-documented special needs to
treat and protect Pregnant patients and their
children.

The first step in the special needs analysis is the
determination of whether the search serves a special
governmental need beyond normal law enforcement needs.
Contrary to the Petitioners' assertions, the Policy was not
merely a symbolic opposition to drug use as in Chandler.
Rather, the MUSC Medical Center demonstrated well-
documented special needs in treating and preventing
cocaine use by pregnant women.

The incontrovertible evidence is that both the
obstetrical and neonatal medical staff had a clinically-based
need for the information in order to manage the pregnancy
and treat the newborns.'4 The evidence also demonstrated
that medical


4 See also Brief of Amici Curiae American Public Health
Association, et al., pages 19-20, acknowledging clinical need to
know of cocaine use
for safe administration of anesthesia.
communities in the City of Charleston, other areas of the
State ol' South Carolina, and across this Nation were
experiencing serious maternal and neonatal health problems
as a result of the epidemic of prenatal drug abuse.

The Petitioners, and several Amici Curiae, attempt to
deny the existence of the problem and/or minimize its
impact. however, the Petitioners' own expert, Dr. Ira
Chasnoff,'5 testified before Congress in 1989 that there had
been a rapid rise in reported instances of cocaine use during
pregnancy and something needed to be done immediately
about the problem. JJ.A. 3 13-14]

Since the "special need" was uniquely medical in nature,
it was appropriately addressed on the frontline by medical
personnel that could best identify the at-risk patients and
most effectively implement a policy to prevent or treat
prenatal drug abuse. Notably, Dr. Chasnoff testified that it
was "essential for medical professionals to develop
protocols and criteria to test pregnant women for cocaine
use during pregnancy. [IA. 314, lines 5-8]

The words of Justice Powell in his concurrence in New
.Jersev v. T LO., illustrate how special relationships -- such as
that between healthcare providers and their patients -- can
establish a basis for recognizing special needs exceptions to
the warrant/probable cause requirement:

Law enforcement officers function as adversaries of
criminal suspects. These officers have the responsibility
to investigate criminal activity, to locate and

5 I)espite his status as a witness in the case, Dr. Chasnoff has
sought leave to appear as amicus curiae along with the American
Public Health Association.





26 27


arrest those who violate our laws, and to facilitate the
charging and bringing of such persons to trial. Rarely
does this type of adversarial relationship exist between
school authorities and pupils. Instead, there is a
commonality of interests between teachers and their
pupils. The attitude of the typical teacher is one of
personal responsibility for the student's welfare as well as
for his education.

469 U.S. at 349. The Court in Griffin v. Wisconsin also
found it pertinent that the primary role of a probation
officer was not to investigate criminal activity, but to
supervise his client with the goal of assuring that the
probation served as a period of genuine rehabilitation.

By the same token, healthcare providers and patients do
not stand in an adversarial relationship to each other.
Instead, there is a commonality of interests between
medical personnel and their patients. In maternity cases,
the medical personnel and the patients share common
interests in the health of both the mother and her child.

The medical staff did not conduct the drug screens for
the purpose of investigating criminal activity. The purpose
was to provide proper medical treatment to their patients.
During pregnancy, so many factors effect the health of the
mother, the course of the labor and delivery, and the health
of the child, that the medical staff cannot adequately treat
the pregnant patient or manage the pregnancy without such
critical information as the patient's use of illegal drugs.

The opinion of the Court of Appeals cannot fairly be
read, as the Petitioners assert, to establish any dangerous
precedent that would permit law enforcement to engage in
warrantless searches for just any and every health or safety
reason. The
Court of Appeals adhered to this Court's decisions in
Vernonia and ('handler, in stressing that the governmental
need must be "compelling" and that "the hazard giving rise
to the alleged special need must be a concrete danger, not
merely a hypothetical one." 186 E.3d at 477. The Court of
Appeals correctly found that: "In light of the documented
health hazards of maternal cocaine use and the resulting
drain on public resources. MUSC officials unquestionably
possessed a substantial interest in taking steps to reduce
cocaine use by pregnant women." 186 F.3d at 478.

The Court has recognized in Von Raab that "drug abuse
is one of the most serious problems confronting our society
today." 489 U.S. at 674. llowever, the Court has drawn
parameters for how far that problem will justify warrantless
searches. In Vernonia, the special need for the school's
random drug testing policy was justified by documented
evidence of a sharp rise in drug use by student athletes and
attendant injuries and disciplinary problems. On the other
hand, in ('handler v. A'Iiller, the State of Georgia could not
produce any evidence of drug problems among state
officeholders to establish a special need sufficient to justify
its mandatory drug testing for political candidates.

The Court of Appeals decision is not a radical departure
from the parameters set by the Court. To the contrary, it
squarely fits within those parameters as a clear case of
"special needs" sufficient to sustain the MUSC Policy. In
comparing the range of documentation and substantiation
of the special needs, this case clearly aligns most closely
with IL'rnonia where the school district presented solid
evidence to document the existence and extent of the
problem of drug abuse by its students and the harmful
consequences to school discipline and the students' health.
Unlike in ('handler, the special need to protect pregnant
women and their children





28 29


from prenatal cocaine abuse is not merely symbolic, but
fully demonstrated by the evidence of an epidemic causing
serious public health problems.

The Petitioners complain about the collaboration with
law enforcement and argue that any special needs search
must be totally divorced from any law enforcement activity.
However, this argument directly conflicts with the Court's
repeated references to "'special needs' beyond normal law
enforcement." Griffin v. Wisconsin, 483 U.S. at 873-74
(emphasis added.)

Notwithstanding that the references to the restricted use
of the drug test results in Von Rahb, Skinner, and Acton, the
Court has never said that the results of a special needs search
cannot be turned over to law enforcement. Notably, in the
case of New Jersey v. T L. 0. which came before the Court on
appeal of the juvenile criminal case, the Court found no
reason to invalidate the search because the fruits were
ultimately turned over to the police.

Here, the MUSC Medical Center had a primary, clinical
need to identify cocaine use which was wholly beyond
normal law enforcement goals. However, under state law,
prenatal illegal drug use constitutes child abuse. Thus, once
in possession of evidence of cocaine use, state law mandated
that the MUSC medical staff report such cases to law
enforcement or the Department of Social Services. Nothing
in the prior decisions of this Court intimates that disclosure
of such information under mandatory reporting statutes
would invalidate an otherwise legitimate special needs
search.

Further, this case does not present any evidence, direct
or inferential, that the MUSC Medical Center's goal of
protecting the health of its maternity patients and their
children was merely a pretext to prosecute cocaine addicts.
The record establishes that there was a very real medical
epidemic and the Medical Center's only goal was to manage
the pregnancies of its maternity patients and prevent
maternal and infant injuries arising from prenatal cocaine
t6
abuse. The Medical Center had already attempted a
protocol that proved ineffective and it was the substance
abuse counselors that proposed the coercive element
necessary to make the Policy work. The purpose of the
urine drug tests was not to prosecute the drug laws; rather,
the threat of prosecution was but a tool in implementing a
Policy that would prove to be effective in discouraging their
patients from prenatal cocaine abuse.

C. The Policy was Effective.

The second step is an assessment of the effectiveness of
the policy in meeting the identified, important special
needs. As the Court of Appeals found, the urine drug screens
were effective in identifying cocaine use which met the
clinical needs.t7 In addition, a decline in the number of
positive drug screens and fewer associated medical
complications demonstrated that the Policy effectively met
the broader need to discourage prenatal cocaine use.

Evidence established that the Policy had a ninety percent
success rate: 223 of the 253 pregnant women who tested
positive the first time, completed substance abuse treatment

6 See iA. 34, 68, 71. 452, 598, 929, 974, 1084.

i7The Court of Appeals found "little doubt that testing the urine of
maternity patients when certain indicia of possible cocaine use
were
present was an effective way to identify and treat maternal cocaine
use 186 F.3d at 478.





30 31


and did not test positive a second time. Of the thirty who
did test positive a second time and were arrested, twenty-
eight successfully completed substance abuse treatment
through the pretrial intervention program. Most telling is
the testimony of many of these Petitioners that they had
finally beaten their cocaine hab~s. [J.A. 582 Griffin, 787
Knight, 1037 Powell, 479 Ferguson, 595 Hale, 745-46
Joseph, 971 Pear].

Despite this evidence, the Petitioners claim that the
Policy was ineffective in promoting fetal health because of
what they allege as its "faulty design" in focusing only on
cocaine use and by employing a punitive approach to
treatment.

The Petitioners assert that the Policy was "medically
senseless" because it did not address other drugs that also
pose risks of harm to the infant. Such assertion is
disingenuous in light of the fact that their own expert
testified that at the time, cocaine use had been identified as
a particularly critical problem both in terms of its epidemic
scope and devastating consequences.t8 Similarly, their
contention that the punitive approach drives women away
from prenatal care and treatment program disregards the
record evidence to the contrary.

Further, the Respondents' decision to focus on cocaine
use was a rational discretionary policy decision not subject
to second-guessing. This Court has recognized that policy-
makers are not constitutionally obligated to tackle complex

8 The record evidence stands in stark contrast to the assertions of
certain Amici Curiae that subsequent studies contain no empirical
data of a unique danger associated with prenatal cocaine use.
[Brief of American Public Health Association, p. 27.] Further, the
MUSC medical staffs decisions must be evaluated in light of the
then available evidence, including the expert opinions of those
such as Dr. Chasnoff.
problems with full-scope, comprehensive programs. Bowen
t'. (Avens, 476 U.S. 340, 347 (1986). Rather, they may take
a step-by-step approach and address that phase of the
problem which they adjudge most acute at the time. Id; see
also Williamson v. Lee Optical of Oklahoma, 348 U.S. 483,
489 (1955) ("Evils in the same field may be of different
dimensions and proportions, requiring different remedies ....
[Tihe reform may take one step at a time, addressing itself
to the phase of the problem which seems most acute to the
legislative mind. The legislature may select one phase of
one field and apply a remedy there, neglecting the others.")

Likewise, the decision to employ a punitive "carrot and
stick" -- approach to discouraging cocaine use was rationally
based on consultation with substance abuse counselors. And,
although the evidence rebuts the claim that this discouraged
some pregnant women from seeking treatment, any such
indirect impact does not invalidate the policy. See Whalen
v. Roe, 429 U.S. 589, 602-603 (1977) (finding that while
patients may avoid or postpone medical attention because
of concerns about disclosure of information that might be
ascertained during treatment, it did not render the policy
unconstitutional).

There is rarely, if ever, a single perfect solution to a
complex problem such as prenatal drug abuse. This Court
has "frequently recognized that individual States have broad
latitude in experimenting with possible solutions to
problems of vital local concern." Whalen v. Roe. 429 U.S.
at 597. This Court has also stated that "the law need not be
in every respect logically consistent with its aims to be
constitutional. It is enough that there is an evil at hand for
correction, and that it might be thought that the particular
legislative measure was a rational way to correct it."
Williamson v. Lee Optical of Oklahoma, 348 U.S. at 487.





32 33


It is for the policymakers to balance the benefits and
risks of proposed solutions, and their decisions are
reviewable by the courts only for arbitrariness and
capriciousness or invidious discrimination. Experts in a
given fieldt9 may disagree over techniques ito be employed
to deal with a serious danger, but "for purposes of the
Fourth Amendment analysis, the choice among such
reasonable alternatives remains with the governmental
officials" not the courts. Michigan Dept. of State Police v.
Sitz, 496 U.S. 444, 453-54 (1990).

The Policy was the product of an orderly and studied
attempt to deal with a specific problem of epidemic
proportions. There was nothing unreasonable or
discriminatory in their identification of cocaine as a
particularly critical problem or their decision to focus on
that illegal drug to the exclusion of other illegal (or legal)
substances which pose risks to maternal and fetal health.

D. The Intrusion was Minimal.

The next step in the special needs analysis is
consideration of the nature of the Petitioners' privacy
expectations and the level of intrusion. The Court of
Appeals correctly held that



Accordingly, the prominence or number of those public interest
groups, such as listed in the Brief of Amicus Curiae American
Public Health Association, which are opposed to the use of the
punitive approach does not conclusively establish that the Policy
was ineffective. Here, the punitive approach was proffered by the
local substance abuse counselors after voluntary treatment
options proved ineffective and it did, in fact, prove to be effective
at MUSC regardless of what studies might have proven elsewhere.
testing the Petitioners' urine for cocaine was a minimal
intrusion on their reduced privacy expectations.

First, the Petitioners voluntarily sought treatment at the
MUSC Medical Center and they consented to the collection
2t)
and testing of the urine. Further, as this Court has noted,
privacy concerns are minimal when the urine samples for
testing are collected in a medical environment.

In Skinner v. Railway Labor, the Court noted that urine
testing does not invade the body and when collected in a
medical environment, the procedure is not a significant
tnvaston of personal privacy. 489 U.S. at 626. Likewise, in
Chandler v. Miller, the Court noted the minimal intrusion
when the tests are conducted in physicians' offices. Cf
Schmerher ~ Califirnia, 384 U.S. 757. 771 (1966) (holding
that the intrusion occasioned by a blood test is not
significant since such tests are routine medical procedures).

The Petitioners claim that they had a heightened
expectation of privacy with respect to disclosure of their
21
confidential medical information , citing the Hippocratic
Oath and Whalen v. Roe, 429 U.S. 589, 599 (1977).
Ilowever, as discussed above,22 physician-patient
confidentiality does not preclude disclosures compelled by
law. Moreover, in Whalen v. Roe, the Court discussed the
limitations on a patient's expectations of privacy of
medical


2(1 See discussion of consent, infra.

21 Notably, the Petitioners voluntarily consented to the disclosure
of their medical information to other sources, thereby reducing their
expectations of absolute confidentiality.

2? See discussion of Clarification of Issues, supra.





34 35


information and specifically noted statutory reporting
requirements relating to child abuse. 429 U.S. at 602 n.29.

E. The Special Needs Outweighed the Minimal
Intrusion.
I
The final step is balancing all these factors. In Skinner,
the Court balanced the limited discretion exercised by the
employers in determining which employees could be tested
under the railroad policies, the "surpassing" interests in
train safety, and the diminished expectation of privacy held
by railway employees that participate in such a heavy
regulated industry. Similarly, in Von Raab, the Court
balanced the government's compelling interest in
preventing the promotion of drug users that might endanger
the border security or public safety with the diminished
expectation of privacy interests of the applicants for such
security-sensitive positions. In Vernonia, the Court took
into account the reduced expectation of privacy of school
children, the relative insignificance of the intrusion, the
important nature of the school's responsibilities and quasi-
guardian relationship with its students, the documented
immediacy of the drug problems; and the effectiveness of
the policy.

Here, there is ample evidence of the clinical need to
identify cocaine use and of the existence and magnitude of
the epidemic of prenatal use of cocaine at that time. There
is also sufficient evidence of the effectiveness of the urine
testing in identifying and treating maternal cocaine use.

Finally, the degree of intrusion was minimal in light of
the fact that the collection and testing of urine was a
normal. routine and expected part of the medical treatment
to which the Petitioners had consented and the urine tests
were
performed based on a non-discretionary application of the
criteria delineated in the Policy.23

The Court of Appeals properly evaluated these factors
and correctly concluded that the special needs outweighed
the minimal intrusion. That decision comports with this
Court's precedent and is consistent with a number of the
circuit court decisions upholding random and mandatory
drug testing policies in a number of industries ranging from
schools to nuclear power plants to horse racing. Those few
decisions where the circuits have struck down drug testing
policies are also consistent with this Court's precedent and
distinguishable from the case here.24

The appropriate application of the special needs
doctrine in this case perhaps is best illustrated by
comparison of decisions arising out of child abuse and
neglect investigations. Franz v. Lyile, 997 F.2d 784 (10th Cir.
1993);
th
and l1"ildauer v. Frederick C'ouniv, 993 F.2d 369 (4 Cir.
1993).

In Franz. a police officer investigating a case of possible
sexual abuse conducted a warrantless inspection of the
child's vaginal area and forcibly removed the child for
medical examination. The police officer argued that the
"societal imperative to protect children" justified his
actions ttnder the special needs doctrine. While expressing
a "deep concern for the safety and well-being of young
children," the

A The Petitioners argue that the Fourth Circuit improperly applied
the

balancing test enunciated in Michigan Dept. of State Police v. Sit,
496
U.S. 444 (1990). However, the Court itself relied upon Siiz in its
opinion
in I ernonia School District i'. .'tcton, 515 U.S. at 654.

24 See discussion in Respondents' Brief in Opposition to the
Petition fora Writ of Certiorari, pages 23-25.





36 37


court rejected the special needs argument because the
primary focus of the police officer's investigation was the
potential criminal culpability of the parents:

What the district court perceived, and what cannot be
overlooked, is that de~ndant's focus was not so much on
the child as it was on the potential criminal culpability of
her parents. That focus is the hallmark of a criminal
investigation. In contrast, a social worker's principal
focus is the welfare of the child. While a criminal
prosecution may emanate from the social worker's
activity, that prospect is not part of the social worker's
cachet.

997 F.2d at 791; see also Darryl H. v. Coler, 801 F.2d 893 th
(7 Cir. 1986) (possibility of criminal prosecution was
contingency of only secondary importance to social
worker).

In contrast, the Court of Appeals for the Fourth Circuit
upheld a medical examination by a public health nurse that
accompanied a social worker in the course of a child neglect
investigation, finding that the state's interest in examining
the neglected children outweighed any attenuated privacy
interest.

These two cases illustrate two important distinguishing
factors: (1) the official role of the person or entity
conducting the search; and (2) the primary focus of the
search. The urine drug screens in this case were conducted by
medical personnel, not law enforcement officers, and the
primary focus of the search was to manage the pregnancy
and protect the health of both the mother and the infant.
Similarly, a social worker's principal focus is the welfare of
the child. While a criminal prosecution may emanate from
the social worker's activity, that prospect is not part of the
social worker's cachet. Likewise, here, the principal focus of
the MUSC medical staff was the welfare of the pregnant
patient and her child, and while a criminal prosecution might
emanate from the activity, that prospect is not part of the
medical staffs "cachet."

One final consideration to be factored in the balancing is
the impracticability of imposing, under such circumstances,
a warrant requirement. Contrary to the Petitioners'
contentions, it would be impracticable, if not impossible, to
require the MUSC medical staff to seek a warrant for a urine
drug test every time that a maternity patient presents with
symptoms and indicia of cocaine use. As this Court
recognized in Skinner, drugs are eliminated from the body at
a constant rate, and samples must be obtained as soon as
possible and the delay to procure a warrant might result in
the destruction of valuable evidence. 489 U.S. at 623.

To paraphrase the Court's ultimate conclusion in Skinner
-
- in light of the limited discretion exercised by the medical
staff under the Policy, the surpassing clinical needs and
broader public health interest served by the urine drug tests
for prenatal cocaine use, and the diminished expectation of
privacy that attaches to urine samples voluntarily provided
for routine medical treatment and the information gathered
therefrom pertaining to illegal drug use and consequent child
abuse, it is reasonable to conduct such tests in the absence of
a warrant.





38 39


II. The Petitioners consented to the searches.

A valid consent does not have to be "knowing" and
"intelligent" in the same sense as a valid confession.25
Schneckloth v. Bustamonq', 412 U.S. at 241 ("Nothing
either in the purposes behindi 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.") Rather, it only has to
be freely and voluntarily given. Here, the drug screens were
constitutionally valid because, as the jury found, the
Petitioners freely and voluntarily consented to the urine
testing.

First, unlike other special needs cases, the Petitioners
were not compelled to provide urine samples. They freely
and voluntarily sought medical treatment at MUSC and
provided the urine samples as a routine part of that
treatment.26

Second, each of the Petitioners signed a consent to
treatment form which authorized the MUSC medical staff
to conduct all necessary tests of those urine samples
including drug tests: "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

25 The District Court did, however, charge the jury that "before there
can be consent, there must be knowledge. The person giving the
consent must have knowledge of what she is doing." [J.A. 1318,
lines 16-191

26 It is notable that apart from the positive urine drug screens,
several of the Petitioners actually admitted to the medical staff
that they were using cocaine during their pregnancies. [J.A. 456
(Ferguson), 591 (Hale), 753 (Joseph); 1212 (Williams)]
surgeon acting under their instructions." [App. 64: Joint
Exhibit No. 13 Consent for Treatment.27 See also App. 62,
Joint Exhibit No. 12 "I further consent to the testing of
drugs if deemed advisable by my physician."]

The District Court charged the jury that those written
consents were "sufficient to cover the taking of the a urine
sample and the testing thereof ..." [l.A. 1318, lines 1-2.1
however, the District Court also charged the jury that the
written consents were not sufficient to cover the sharing of
that information with law enforcement officials. [J.A.
1318,
5-7.1 Instead, the District Court charged, the
Respondents were required to show that the Petitioners
consented to MUSC disclosing the information to law
enforcement.28 [J.A. 1319, lines 16-22.1

There is no precedent in this Court's Fourth Amendment
search and seizure jurisprudence which imposes any such
requirement that the searching agency inform the
consenting party that the results of the search will be turned
over to law enforcement. In fact, this Court's opinions
would indicate the contrary.

In Schneckloth v. Bustamonte, the Court held that a valid
consent does not depend on knowledge of the right to refuse
consent, although it may be one of the factors to be
considered along with all the other circumstances. 412 U.S.
at 222, 248-49 ("Voluntariness is a question of fact to be
determined from all the circumstances, and while the

27 See Defendants' Exhibits I Williams, IA Ferguson, 13A Griffin,
SIA -. Knight, 67A Nicholson, 81B - Pear, 95A Powell, 155
Singleton, 174 -- hale, and 175 Joseph.

28 The Petitioners also consented to disclosure of their medical
information to certain sources.





40 41


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."). And, more recently, in Ohio v.
Robinette, 519 U.S. 33, 40 (1996), the Court rejected a per
se rule that would "requite police officers to always inform
detainees that they are free to go before a consent to
search may be deemed voluntary."

Notwithstanding the District Court's questionable
charge, the evidence presented to the jury supports the
finding that these Petitioners 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.
ground for sustaining the judgment that there was no Fourth
Amendment violation.

CONCLUSION

For all the foregoing reasons, the urine drug tests were
not unreasonable searches violative of the Fourth
Amendment. The Fourth Amendment does not apply to
urine drug tests conducted for medical reasons, but, in any
event, they were reasonable under either the special needs
analysis applied by the Court of Appeals or the jury's
factual finding that the Petitioners consented to the tests.
Accordingly, judgment for the Respondents should be
affirmed.

Respectfully submitted,




Under the Policy all patients were given a letter at the
time of their initial visit which explained the urine
drug testing policy and which would clearly put them on
notice that law enforcement would be contacted if they
tested positive and did not get treatment. [App. 54, 56-57;
J.A. 165, 174, 12691

Some of the Petitioners admitted seeing or hearing the
public service announcements about the Policy which would
have put them on notice that their urine would be tested for
cocaine and positive test results would be disclosed to law
enforcement. [J.A. 345, 477-78, 7531 And, in fact, several
of the Petitioners admitted that they were aware of the
Policy at the time they sought treatment at MUSC
and provided urine specimens for testing. [J.A. 478, 754-
5, 969-70]
Robert H. Hood
Counsel of Record
Barbara Wynne Showers
Mary Agnes Hood Craig
HOOD LAW FIRM, L.L.C.
172 Meeting Street
P.O. Box 1508
Charleston, S.C. 29402
(843) 577-4435

Attorneys for Respondents
The jury's factual finding that the Petitioners
consented to
the drug testing is fully supported by the evidence adduced
during the six-week trial and stands as an independent



FindLaw Career Center


      Post a Job  |  View More Jobs

    View More