532
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
Some four months later, Nurse Shirley Brown,
the case manager for the MUSC obstetrics department, heard a
news broadcast reporting that the police in
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.