Ferguson v. City of Charleston

United States Supreme Court

532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001)

 

Justice Stevens delivered the opinion of the Court.

 

             In this case, we must decide whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. More narrowly, the question is whether the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine can justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.

 

I

 

             In the fall of 1988, staff members at the public hospital operated in the city of Charleston by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. In response to this perceived increase, as of April 1989, MUSC began to order drug screens to be performed on urine samples from maternity patients who were suspected of using cocaine. If a patient tested positive, she was then referred by MUSC staff to the county substance abuse commission for counseling and treatment. However, despite the referrals, the incidence of cocaine use among the patients at MUSC did not appear to change.

 

             Some four months later, Nurse Shirley Brown, the case manager for the MUSC obstetrics department, heard a news broadcast reporting that the police in Greenville, South Carolina, were arresting pregnant users of cocaine on the theory that such use harmed the fetus and was therefore child abuse. Nurse Brown discussed the story with MUSC’s general counsel, Joseph C. Good, Jr., who then contacted Charleston Solicitor Charles Condon in order to offer MUSC’s cooperation in prosecuting mothers whose children tested positive for drugs at birth.

 

             After receiving Good’s letter, Solicitor Condon took the first steps in developing the policy at issue in this case. He organized the initial meetings, decided who would participate, and issued the invitations, in which he described his plan to prosecute women who tested positive for cocaine while pregnant. The task force that Condon formed included representatives of MUSC, the police, the County Substance Abuse Commission and the Department of Social Services. Their deliberations led to MUSC’s adoption of a 12-page document entitled “POLICY M-7,” dealing with the subject of “Management of Drug Abuse During Pregnancy.” …

 

             The first three pages of Policy M-7 set forth the procedure to be followed by the hospital staff to “identify/assist pregnant patients suspected of drug abuse.” … The first section, entitled the “Identification of Drug Abusers,” provided that a patient should be tested for cocaine through a urine drug screen if she met one or more of nine criteria. It also stated that a chain of custody should be followed when obtaining and testing urine samples, presumably to make sure that the results could be used in subsequent criminal proceedings. The policy also provided for education and referral to a substance abuse clinic for patients who tested positive. Most important, it added the threat of law enforcement intervention that “provided the necessary ` leverage’ to make the [p]olicy effective.” … That threat was, as respondents candidly acknowledge, essential to the program’s success in getting women into treatment and keeping them there.

 

             The threat of law enforcement involvement was set forth in two protocols, the first dealing with the identification of drug use during pregnancy, and the second with identification of drug use after labor. Under the latter protocol, the police were to be notified without delay and the patient promptly arrested. Under the former, after the initial positive drug test, the police were to be notified (and the patient arrested) only if the patient tested positive for cocaine a second time or if she missed an appointment with a substance abuse counselor. In 1990, however, the policy was modified at the behest of the solicitor’s office to give the patient who tested positive during labor, like the patient who tested positive during a prenatal care visit, an opportunity to avoid arrest by consenting to substance abuse treatment.

 

             The last six pages of the policy contained forms for the patients to sign, as well as procedures for the police to follow when a patient was arrested. The policy also prescribed in detail the precise offenses with which a woman could be charged, depending on the stage of her pregnancy. If the pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was 28 weeks or more, she was to be charged with possession and distribution to a person under the age of 18--in this case, the fetus. If she delivered “while testing positive for illegal drugs,” she was also to be charged with unlawful neglect of a child. … Under the policy, the police were instructed to interrogate the arrestee in order “to ascertain the identity of the subject who provided illegal drugs to the suspect.” … Other than the provisions describing the substance abuse treatment to be offered to women who tested positive, the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns.

 

II

 

             Petitioners are 10 women who received obstetrical care at MUSC and who were arrested after testing positive for cocaine. Four of them were arrested during the initial implementation of the policy; they were not offered the opportunity to receive drug treatment as an alternative to arrest. The others were arrested after the policy was modified in 1990; they either failed to comply with the terms of the drug treatment program or tested positive for a second time. Respondents include the city of Charleston, law enforcement officials who helped develop and enforce the policy, and representatives of MUSC.

 

             Petitioners’ complaint challenged the validity of the policy under various theories, including the claim that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. Respondents advanced two principal defenses to the constitutional claim: (1) that, as a matter of fact, petitioners had consented to the searches; and (2) that, as a matter of law, the searches were reasonable, even absent consent, because they were justified by special non-law-enforcement purposes. The District Court rejected the second defense because the searches in question “were not done by the medical university for independent purposes. [Instead,] the police came in and there was an agreement reached that the positive screens would be shared with the police.” …Accordingly, the District Court submitted the factual defense to the jury with instructions that required a verdict in favor of petitioners unless the jury found consent.  The jury found for respondents.

 

             Petitioners appealed, arguing that the evidence was not sufficient to support the jury’s consent finding. The Court of Appeals for the Fourth Circuit affirmed, but without reaching the question of consent. … Disagreeing with the District Court, the majority of the appellate panel held that the searches were reasonable as a matter of law under our line of cases recognizing that “special needs” may, in certain exceptional circumstances, justify a search policy designed to serve non-law-enforcement ends. On the understanding “that MUSC personnel conducted the urine drug screens for medical purposes wholly independent of an intent to aid law enforcement efforts,” …  the majority applied the balancing test used in Treasury Employees v. Von Raab, 489 U. S. 656 (1989), and Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995), and concluded that the interest in curtailing the pregnancy complications and medical costs associated with maternal cocaine use outweighed what the majority termed a minimal intrusion on the privacy of the patients. In dissent, Judge Blake concluded that the “special needs” doctrine should not apply and that the evidence of consent was insufficient to sustain the jury’s verdict. …

 

             We granted certiorari … to review the appellate court’s holding on the “special needs” issue. Because we do not reach the question of the sufficiency of the evidence with respect to consent, we necessarily assume for purposes of our decision--as did the Court of Appeals--that the searches were conducted without the informed consent of the patients. We conclude that the judgment should be reversed and the case remanded for a decision on the consent issue.

 

III

 

             Because MUSC is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment. … Moreover, the urine tests conducted by those staff members were indisputably searches within the meaning of the Fourth Amendment. … Neither the District Court nor the Court of Appeals concluded that any of the nine criteria used to identify the women to be searched provided either probable cause to believe that they were using cocaine, or even the basis for a reasonable suspicion of such use. Rather, the District Court and the Court of Appeals viewed the case as one involving MUSC’s right to conduct searches without warrants or probable cause. Furthermore, given the posture in which the case comes to us, we must assume for purposes of our decision that the tests were performed without the informed consent of the patients.

 

             Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to law enforcement agents without the knowledge or consent of the patients, this case differs from the four previous cases in which we have considered whether comparable drug tests “fit within the closely guarded category of constitutionally permissible suspicionless searches.” … In three of those cases, we sustained drug tests for railway employees involved in train accidents, Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989), for United States Customs Service employees seeking promotion to certain sensitive positions, Treasury Employees v. Von Raab, 489 U. S. 656 (1989), and for high school students participating in interscholastic sports, Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995). In the fourth case, we struck down such testing for candidates for designated state offices as unreasonable. Chandler v. Miller, 520 U. S. 305 (1997).

 

             In each of those cases, we employed a balancing test that weighed the intrusion on the individual’s interest in privacy against the “special needs” that supported the program. As an initial matter, we note that the invasion of privacy in this case is far more substantial than in those cases. In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. … In none of our prior cases was there any intrusion upon that kind of expectation.

 

             The critical difference between those four drug-testing cases and this one, however, lies in the nature of the “special need” asserted as justification for the warrantless searches. In each of those earlier cases, the “special need” that was advanced as a justification for the absence of a warrant or individualized suspicion was one divorced from the State’s general interest in law enforcement. This point was emphasized both in the majority opinions sustaining the programs in the first three cases, as well as in the dissent in the Chandler case. In this case, however, the central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment. This fact distinguishes this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that under rules of law or ethics is subject to reporting requirements, which no one has challenged here. …

 

             Respondents argue in essence that their ultimate purpose--namely, protecting the health of both mother and child--is a benificent one. In Chandler, however, we did not simply accept the State’s invocation of a “special need.” Instead, we carried out a “close review” of the scheme at issue before concluding that the need in question was not “special,” as that term has been defined in our cases. … In this case, a review of the M-7 policy plainly reveals that the purpose actually served by the MUSC searches “is ultimately indistinguishable from the general interest in crime control.” …

 

             In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose. … In this case, as Judge Blake put it in her dissent below, “it . . . is clear from the record that an initial and continuing focus of the policy was on the arrest and prosecution of drug-abusing mothers....” … Tellingly, the document codifying the policy incorporates the police’s operational guidelines. It devotes its attention to the chain of custody, the range of possible criminal charges, and the logistics of police notification and arrests. Nowhere, however, does the document discuss different courses of medical treatment for either mother or infant, aside from treatment for the mother’s addiction.

 

             Moreover, throughout the development and application of the policy, the Charleston prosecutors and police were extensively involved in the day-to-day administration of the policy. Police and prosecutors decided who would receive the reports of positive drug screens and what information would be included with those reports. … Law enforcement officials also helped determine the procedures to be followed when performing the screens. … In the course of the policy’s administration, they had access to Nurse Brown’s medical files on the women who tested positive, routinely attended the substance abuse team’s meetings, and regularly received copies of team documents discussing the women’s progress. … Police took pains to coordinate the timing and circumstances of the arrests with MUSC staff, and, in particular, Nurse Brown. …

 

             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. Because law enforcement involvement always serves some broader social purpose or objective, under respondents’ view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of “special needs.”

 

             The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing our prior cases applying the “special needs” balancing approach to the determination of drug use. It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require….

 

             As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. The stark and unique fact that characterizes this case is that Policy M-7 was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. While respondents are correct that drug abuse both was and is a serious problem, “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” … The Fourth Amendment’s general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy. …

 

             Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

 

 

Justice Kennedy, concurring in the judgment.

 

             I agree that the search procedure in issue cannot be sustained under the Fourth Amendment. My reasons for this conclusion differ somewhat from those set forth by the Court, however, leading to this separate opinion.

 

I

 

             The Court does not dispute that the search policy at some level serves special needs, beyond those of ordinary law enforcement, such as the need to protect the health of mother and child when a pregnant mother uses cocaine. Instead, the majority characterizes these special needs as the “ultimate goal[s]” of the policy, as distinguished from the policy’s “immediate purpose,” the collection of evidence of drug use, which, the Court reasons, is the appropriate inquiry for the special needs analysis. …

 

             The majority views its distinction between the ultimate goal and immediate purpose of the policy as critical to its analysis. … The distinction the Court makes, however, lacks foundation in our special needs cases. All of our special needs cases have turned upon what the majority terms the policy’s ultimate goal. …

 

             It is unsurprising that in our prior cases we have concentrated on what the majority terms a policy’s ultimate goal, rather than its proximate purpose. By very definition, in almost every case the immediate purpose of a search policy will be to obtain evidence. The circumstance that a particular search, like all searches, is designed to collect evidence of some sort reveals nothing about the need it serves. Put a different way, although procuring evidence is the immediate result of a successful search, until today that procurement has not been identified as the special need which justifies the search.

 

II

 

             While the majority’s reasoning seems incorrect in the respects just discussed, I agree with the Court that the search policy cannot be sustained. As the majority demonstrates and well explains, there was substantial law enforcement involvement in the policy from its inception. None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives. The special needs cases we have decided do not sustain the active use of law enforcement, including arrest and prosecutions, as an integral part of a program which seeks to achieve legitimate, civil objectives. The traditional warrant and probable-cause requirements are waived in our previous cases on the explicit assumption that the evidence obtained in the search is not intended to be used for law enforcement purposes. Most of those tested for drug use under the policy at issue here were not brought into direct contact with law enforcement. This does not change the fact, however, that, as a systemic matter, law enforcement was a part of the implementation of the search policy in each of its applications. Every individual who tested positive was given a letter explaining the policy not from the hospital but from the solicitor’s office. Everyone who tested positive was told a second positive test or failure to undergo substance abuse treatment would result in arrest and prosecution. As the Court holds, the hospital acted, in some respects, as an institutional arm of law enforcement for purposes of the policy. Under these circumstances, while the policy may well have served legitimate needs unrelated to law enforcement, it had as well a penal character with a far greater connection to law enforcement than other searches sustained under our special needs rationale.

 

             In my view, it is necessary and prudent to be explicit in explaining the limitations of today’s decision. The beginning point ought to be to acknowledge the legitimacy of the State’s interest in fetal life and of the grave risk to the life and health of the fetus, and later the child, caused by cocaine ingestion. Infants whose mothers abuse cocaine during pregnancy are born with a wide variety of physical and neurological abnormalities. … Prenatal exposure to cocaine can also result in developmental problems which persist long after birth. … There can be no doubt that a mother’s ingesting this drug can cause tragic injury to a fetus and a child. There should be no doubt that South Carolina can impose punishment upon an expectant mother who has so little regard for her own unborn that she risks causing him or her lifelong damage and suffering. The State, by taking special measures to give rehabilitation and training to expectant mothers with this tragic addiction or weakness, acts well within its powers and its civic obligations.

 

             The holding of the Court, furthermore, does not call into question the validity of mandatory reporting laws such as child abuse laws which require teachers to report evidence of child abuse to the proper authorities, even if arrest and prosecution is the likely result. That in turn highlights the real difficulty. As this case comes to us, and as reputable sources confirm, … we must accept the premise that the medical profession can adopt acceptable criteria for testing expectant mothers for cocaine use in order to provide prompt and effective counseling to the mother and to take proper medical steps to protect the child. If prosecuting authorities then adopt legitimate procedures to discover this information and prosecution follows, that ought not to invalidate the testing. One of the ironies of the case, then, may be that the program now under review, which gives the cocaine user a second and third chance, might be replaced by some more rigorous system. We must, however, take the case as it comes to us; and the use of handcuffs, arrests, prosecutions, and police assistance in designing and implementing the testing and rehabilitation policy cannot be sustained under our previous cases concerning mandatory testing.

 

III

 

             An essential, distinguishing feature of the special needs cases is that the person searched has consented, though the usual voluntariness analysis is altered because adverse consequences, (e.g., dismissal from employment or disqualification from playing on a high school sports team), will follow from refusal. The person searched has given consent, as defined to take into account that the consent was not voluntary in the full sense of the word. … The consent, and the circumstances in which it was given, bear upon the reasonableness of the whole special needs program.

 

             Here, on the other hand, the question of consent, even with the special connotation used in the special needs cases, has yet to be decided. Indeed, the Court finds it necessary to take the unreal step of assuming there was no voluntary consent at all. Thus, we have erected a strange world for deciding the case.

 

             My discussion has endeavored to address the permissibility of a law enforcement purpose in this artificial context. The role played by consent might have affected our assessment of the issues. My concurrence in the judgment, furthermore, should not be interpreted as having considered or resolved the important questions raised by Justice Scalia with reference to whether limits might be imposed on the use of the evidence if in fact it were obtained with the patient’s consent and in the context of the special needs program. Had we the prerogative to discuss the role played by consent, the case might have been quite a different one. All are in agreement, of course, that the Court of Appeals will address these issues in further proceedings on remand.

 

             With these remarks, I concur in the judgment.

 

 

Justice Scalia, with whom The Chief Justice and Justice Thomas join as to Part II, dissenting.

 

             There is always an unappealing aspect to the use of doctors and nurses, ministers of mercy, to obtain incriminating evidence against the supposed objects of their ministration--although here, it is correctly pointed out, the doctors and nurses were ministering not just to the mothers but also to the children whom their cooperation with the police was meant to protect. But whatever may be the correct social judgment concerning the desirability of what occurred here, that is not the issue in the present case. The Constitution does not resolve all difficult social questions, but leaves the vast majority of them to resolution by debate and the democratic process--which would produce a decision by the citizens of Charleston, through their elected representatives, to forbid or permit the police action at issue here. The question before us is a narrower one: whether, whatever the desirability of this police conduct, it violates the Fourth Amendment’s prohibition of unreasonable searches and seizures. In my view, it plainly does not.

 

I

 

             The first step in Fourth Amendment analysis is to identify the search or seizure at issue. What petitioners, the Court, and to a lesser extent the concurrence really object to is not the urine testing, but the hospital’s reporting of positive drug-test results to police. But the latter is obviously not a search. At most it may be a “derivative use of the product of a past unlawful search,” which, of course, “work[s] no new Fourth Amendment wrong” and “presents a question, not of rights, but of remedies.” … There is only one act that could conceivably be regarded as a search of petitioners in the present case: the taking of the urine sample. I suppose the testing of that urine for traces of unlawful drugs could be considered a search of sorts, but the Fourth Amendment protects only against searches of citizens’ “persons, houses, papers, and effects”; and it is entirely unrealistic to regard urine as one of the “effects” (i.e., part of the property) of the person who has passed and abandoned it. …

 

             It is rudimentary Fourth Amendment law that a search which has been consented to is not unreasonable. There is no contention in the present case that the urine samples were extracted forcibly. The only conceivable bases for saying that they were obtained without consent are the contentions (1) that the consent was coerced by the patients’ need for medical treatment, (2) that the consent was uninformed because the patients were not told that the tests would include testing for drugs, and (3) that the consent was uninformed because the patients were not told that the results of the tests would be provided to the police. …

 

             Under our established Fourth Amendment law, the last two contentions would not suffice, even without reference to the special-needs doctrine. The Court’s … claim that “standards of knowing waiver” apply … are flatly contradicted by our jurisprudence, which shows that using lawfully (but deceivingly) obtained material for purposes other than those represented, and giving that material or information derived from it to the police, is not unconstitutional. … Because the defendant had voluntarily provided access to the evidence, there was no reasonable expectation of privacy to invade. Abuse of trust is surely a sneaky and ungentlemanly thing, and perhaps there should be (as there are) laws against such conduct by the government. … That, however, is immaterial for Fourth Amendment purposes, for “however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities.” …

 

             Until today, we have never held--or even suggested--that material which a person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain. Without     so much as discussing the point, the Court today opens a hole in our Fourth Amendment jurisprudence, the size and shape of which is entirely indeterminate. Today’s holding would be remarkable enough if the confidential relationship violated by the police conduct were at least one protected by state law. It would be surprising to learn, for example, that in a State which recognizes a spousal evidentiary privilege the police cannot use evidence obtained from a cooperating husband or wife. But today’s holding goes even beyond that, since there does not exist any physician-patient privilege in South Carolina. … Since the Court declines even to discuss the issue, it leaves law enforcement officials entirely in the dark as to when they can use incriminating evidence obtained from “trusted” sources. Presumably the lines will be drawn in the case-by-case development of a whole new branch of Fourth Amendment jurisprudence, taking yet another social judgment (which confidential relationships ought not be invaded by the police) out of democratic control, and confiding it to the uncontrolled judgment of this Court--uncontrolled because there is no common-law precedent to guide it. I would adhere to our established law, which says that information obtained through violation of a relationship of trust is obtained consensually, and is hence not a search.

 

             There remains to be considered the first possible basis for invalidating this search, which is that the patients were coerced to produce their urine samples by their necessitous circumstances, to-wit, their need for medical treatment of their pregnancy. If that was coercion, it was not coercion applied by the government--and if such nongovernmental coercion sufficed, the police would never be permitted to use the ballistic evidence obtained from treatment of a patient with a bullet wound. And the Fourth Amendment would invalidate those many state laws that require physicians to report gunshot wounds, evidence of spousal abuse, and … evidence of child abuse.

 

II

 

             I think it clear, therefore, that there is no basis for saying that obtaining of the urine sample was unconstitutional. The special-needs doctrine is thus quite irrelevant, since it operates only to validate searches and seizures that are otherwise unlawful. In the ensuing discussion, however, I shall assume (contrary to legal precedent) that the taking of the urine sample was (either because of the patients’ necessitous circumstances, or because of failure to disclose that the urine would be tested for drugs, or because of failure to disclose that the results of the test would be given to the police) coerced. Indeed, I shall even assume (contrary to common sense) that the testing of the urine constituted an unconsented search of the patients’ effects. On those assumptions, the special-needs doctrine would become relevant; and, properly applied, would validate what was done here.

 

             The conclusion of the Court that the special-needs doctrine is inapplicable rests upon its contention that respondents “undert[ook] to obtain [drug] evidence from their patients” not for any medical purpose, but “for the specific purpose of incriminating those patients.” … In other words, the purported medical rationale was merely a pretext; there was no special need. … This contention contradicts the District Court’s finding of fact that the goal of the testing policy “was not to arrest patients but to facilitate their treatment and protect both the mother and unborn child.” … This finding is binding upon us unless clearly erroneous. … Not only do I find it supportable; I think any other finding would have to be overturned.

 

             The cocaine tests started in April 1989, neither at police suggestion nor with police involvement. Expectant mothers who tested positive were referred by hospital staff for substance-abuse treatment--an obvious health benefit to both mother and child. … And, since “[i]nfants whose mothers abuse cocaine during pregnancy are born with a wide variety of physical and neurological abnormalities,” … which require medical attention, … the tests were of additional medical benefit in predicting needed postnatal treatment for the child. Thus, in their origin--before the police were in any way involved--the tests had an immediate, not merely an “ultimate,” … purpose of improving maternal and infant health. Several months after the testing had been initiated, a nurse discovered that local police were arresting pregnant users of cocaine for child abuse, the hospital’s general counsel wrote the county solicitor to ask “what, if anything, our Medical Center needs to do to assist you in this matter,” … the police suggested ways to avoid tainting evidence, and the hospital and police in conjunction used the testing program as a means of securing what the Court calls the “ultimate” health benefit of coercing drug-abusing mothers into drug treatment. … Why would there be any reason to believe that, once this policy of using the drug tests for their “ultimate” health benefits had been adopted, use of them for their original, immediate, benefits somehow disappeared, and testing somehow became in its entirety nothing more than a “pretext” for obtaining grounds for arrest? On the face of it, this is incredible. The only evidence of the exclusively arrest-related purpose of the testing adduced by the Court is that the police-cooperation policy itself does not describe how to care for cocaine-exposed infants. … But of course it does not, since that policy, adopted months after the cocaine testing was initiated, had as its only health object the “ultimate” goal of inducing drug treatment through threat of arrest. Does the Court really believe (or even hope) that, once invalidation of the program challenged here has been decreed, drug testing will cease?

 

             In sum, there can be no basis for the Court’s purported ability to “distinguis[h] this case from circumstances in which physicians or psychologists, in the course of ordinary medical procedures aimed at helping the patient herself, come across information that . . . is subject to reporting requirements,” … unless it is this: That the addition of a law-enforcement-related purpose to a legitimate medical purpose destroys applicability of the “special-needs” doctrine. But that is quite impossible, since the special-needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective. …

 

             As I indicated at the outset, it is not the function of this Court--at least not in Fourth Amendment cases--to weigh petitioners’ privacy interest against the State’s interest in meeting the crisis of “crack babies” that developed in the late 1980’s. I cannot refrain from observing, however, that the outcome of a wise weighing of those interests is by no means clear. The initial goal of the doctors and nurses who conducted cocaine-testing in this case was to refer pregnant drug addicts to treatment centers, and to prepare for necessary treatment of their possibly affected children. When the doctors and nurses agreed to the program providing test results to the police, they did so because (in addition to the fact that child abuse was required by law to be reported) they wanted to use the sanction of arrest as a strong incentive for their addicted patients to undertake drug-addiction treatment. And the police themselves used it for that benign purpose, as is shown by the fact that only 30 of 253 women testing positive for cocaine were ever arrested, and only 2 of those prosecuted. … It would not be unreasonable to conclude that today’s judgment, authorizing the assessment of damages against the county solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished.

 

             But as far as the Fourth Amendment is concerned: There was no unconsented search in this case. And if there was, it would have been validated by the special-needs doctrine. For these reasons, I respectfully dissent.