Fourth Amendment Warrantless Drug Testing
Issue: Is a state hospitals performance of a non-consensual diagnostic drug test, in order to obtain evidence of a patients criminal conduct for law enforcement purposes, an unreasonable search?
Facts: In April 1989, the Medical University of South Carolina (MUSC), which operated Charlestons public hospital, began performing drug screens on urine samples taken from maternity patients who were suspected of using cocaine. This policy was instituted after staff members became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. Patients testing positive were referred to the county substance abuse commission for counseling and treatment. Despite this program, the incidence of cocaine use by maternity patients did not decrease. Four months later MUSCs general counsel contacted Charlestons Solicitor and offered MUSCs cooperation in prosecuting mothers whose children tested positive for drugs at birth. The Solicitor created a task force comprised of MUSC officials, the police, county substance abuse officials and county social service officials. The task force created Policy M-7, a twelve-page document adopted by MUSC. Policy M-7 set forth the procedure to be followed by the hospital staff to identify/assist pregnant patients suspected of drug abuse. Patients who met one or more of nine criteria were tested for cocaine through use of a urine drug screen. (These nine criteria did not come close to establishing a probable cause standard.) A chain of custody was followed when obtaining and testing urine samples. Although Policy M-7 provided for education and referral to a substance abuse clinic for patients who tested positive, it also added the threat of law enforcement intervention which was essential to the programs success in getting women into treatment and keeping them there. If drug use was detected after labor, the police were notified without delay and the patient was promptly arrested. If drug use was detected before labor, the patient was initially referred to a substance abuse counselor. If the pre-labor patient tested positive a second time or failed to show up for counseling, the police were notified and the patient was arrested. Policy M-7 also prescribed in detail the criminal offenses with which patients would be charged and set forth police post-arrest procedures, such as interrogating the patient in order to determine her drug supplier. 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 prenatal care of such patients, nor did it prescribe any special treatment of the newborns. The police were significantly involved in the practical implementation and operation of the plan. Only 30 of the 253 patients testing positive for cocaine were arrested, two of whom were prosecuted.
Petitioners were ten female patients who tested positive and were arrested under the plan. Respondents were the City of Charleston, law enforcement officials and MUSC officials. Petitioners alleged that Policy M-7 involved warrantless non-consensual drug tests conducted for criminal investigatory purposes and were therefore invalid under the Fourth Amendment. Respondents maintained that the searches were consensual and that, even absent consent, they were justified by special non-law enforcement purposes and were thus reasonable under the Fourth Amendment. The United States District Court, noting that the searches were not done by the medical university for independent purposes but that the police came in and there was an agreement reached that the positive screens would be shared with the police, found the searches unreasonable absent consent. The District Court submitted the factual consent defense to the jury which found for respondents. The United States Court of Appeals for the Fourth Circuit affirmed without reaching the consent issue. Instead, the Fourth Circuit ruled the searches reasonable as a matter of law under the United States Supreme Courts line of cases recognizing that special needs may, in certain exceptional circumstances, justifying a search policy designed to serve non-law enforcement ends. The Court granted certiorari to review the Fourth Circuits holding on the special needs issue.
Holding: Given the primary purposes 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 Court assumed, for purposes of the decision, that the searches were conducted without the informed consent of the patients. Accordingly, the Court reversed the Fourth Circuits judgment and remanded for a decision on the consent issue.
Reasoning: The Court, through Justice Stevens, stressed that MUSC was a state hospital and that its staff members were government actors, subject to the strictures of the Fourth Amendment. The urine tests conducted by MUSC staff members were indisputably searches within the meaning of the Fourth Amendment. None of the nine criteria for conducting the drug screens provided probable cause or even reasonable suspicion to conduct a search. This matter differed from other special needs cases because the hospital seeks to justify its authority to conduct drug tests and turn the results over to law enforcement agents without the knowledge or consent of the patients. In four prior special needs cases, where the Court had decided whether similar drug tests fit within the closely guarded category of constitutionally permissible suspicionless searches, the Court had employed a balancing test that weighed the intrusion on the individuals interest in privacy against the special needs that supported the program. [In Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989), the Court sustained drug tests for railway employees involved in train accidents. In Treasury Employees v. Von Raab, 489 U.S. 656 (1989), the Court sustained drug tests for Customs Service employees seeking promotion to sensitive positions. In Vernonia School District v. Acton, 515 U.S. 646 (1995), the Court sustained drug tests for high school students participating in interscholastic sports. In Chandler v. Miller, 520 U.S. 305 (1997), the Court struck down drug tests for candidates for designated state offices.] The invasion of privacy involved in the Charleston drug screens is far more substantial than in the other special needs drug 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 typical hospital patient has a reasonable expectation that the result of diagnostic tests will not be shared with non-medical personnel absent consent. The critical difference, however, between MUSCs test and the tests involved in prior special needs cases involved the nature of the special need asserted as a justification for the tests. In all of the earlier cases, the special need asserted was one divorced from the States general interest in law enforcement. In Charlestons 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. Though respondents argued that their ultimate purpose was protecting the health of both mother and child the real purpose served by Policy M-7 was ultimately indistinguishable from the general interest in crime control. Indianapolis v. Edmond, 531 U.S. __, (2000)(slip op., at 15). Whatever the ultimate goal of the program, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. Given the direct and primary purposes of the Charleston program and the intrusive involvement of law enforcement officials at every stage of the policy, the program did not fit within the closely guarded category of special needs. (Since law enforcement always serves some broader social purpose or objective, respondents ultimate purpose argument could immunize any non-consensual suspicionless search by defining the search solely in terms of its ultimate objective.) While state hospital employees may have a duty to report inadvertently acquired evidence of criminal conduct to the police, 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.
Other Opinions: Justice Kennedy concurred in the judgment. He saw the majoritys distinction between the ultimate goal and the immediate purpose of a drug test as unworkable and lacking foundation in our special needs cases. The search could not be sustained, however, because there was substantial law enforcement involvement in the policy from its inception. Not one of the Courts special needs precedents had 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. Kennedy conceded the legitimacy of the States interest in protecting the life and health of the fetus and the child. Nor did the Courts holding 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. If doctors can adopt acceptable criteria for testing and counseling expectant mothers for cocaine use and authorities then adopt legitimate procedures to discover this information and prosecution follows, that ought not to invalidate the testing. Justice Kennedy also made clear that he had not considered or resolved the question of whether the evidence obtained through the drug tests could be used if in fact it were obtained with the patients consent.
In Part I of his dissent, Justice Scalia first noted that the only search involved in this case was the taking of the urine sample not the hospitals reporting of the drug test results to the police. A search that is consented to is not unreasonable. Since the urine samples were not extracted forcibly, they were only taken non-consensually if: (1) the consent was coerced by the pregnant patients need for medical treatment; (2) the consent for testing was uninformed because patients did not know that drug testing would be included; or (3) the consent was uninformed because patients did not know that drug test results would be turned over to the police. Scalia pointed out that under the Courts Fourth Amendment jurisprudence, the last two contentions would not suffice, even without reference to the special needs doctrine. In Hoffa v. United States, 385 U.S. 293 (1966), the defendant voluntarily provided evidence of wrongdoing to a government informant who failed to disclose his true identity. The Court found no Fourth Amendment protection for a wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Id. at 302. According to Scalia, [t]he Hoffa line of cases . . . does not distinguish between operations meant to catch a criminal in the act, and those meant only to gather evidence of prior wrongdoing. Scalia lamented that [u]ntil today, we have never held or even suggested that material which a person voluntary entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain.
With respect to the argument, that any consent to the Charleston program was coerced by the patients need for medical treatment, Scalia argued that [i]f 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 (like the South Carolina law relevant here, see S.C. Code Ann. § 20-7-510 (2000)) evidence of child abuse. Underlying this part of Justice Scalias dissent is the notion that the Charleston public hospital, though owned by the state and operated by MUSC, a state agency, was not functioning as a state actor for Fourth Amendment purposes when its employees conducted the drug tests. No other Court member joined Part I of Justice Scalias dissent.
In Part II of his dissent, joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia assumed for purposes of argument that the taking of the urine sample was coerced and non-consensual, but maintained that the special needs doctrine . . . properly applied, would validate what was done here. Scalia attacked the majoritys conclusion that the drug tests were conducted not for any medical reason, but for the specific purpose of incriminating patients. In other words, the purported medical rationale was [according to the majority] merely a pretext; there was no special need. This conclusion contradicted the District Courts finding of fact that the goal of Policy M-7 was to protect patients and facilitate the treatment of mother and child. The District Courts factual finding on this issue was binding unless clearly erroneous. Not only do I find it supportable; I think any other finding would have to be overturned. Scalia pointed out that the tests began in 1989 without police suggestion or involvement and that patients testing positive were only referred for substance-abuse treatment, an obvious health benefit to both mother and child. Once the police got involved, 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. Scalia wondered why anybody would think that the original reason for the testing suddenly disappeared or that the testing somehow turned into a pretext for arrest. There was no principled way to distinguish this case from circumstances where physicians have to report information that they come across in the course of ordinary treatment, 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 Scalia pointed out that the special needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who . . . ordinarily have a law enforcement objective. Scalia relied heavily on Griffin v. Wisconsin, 483 U.S. 868 (1987), a special needs case in which a probation officer received a tip from a police detective that the petitioner, a parolee, possessed a firearm. The probation officer, a state official charged with protecting the public interest, searched petitioners home without a warrant and found the weapon which was later used at Griffins criminal trial for unlawful possession of a firearm. The Court denied a motion to suppress, and concluded that the special need of assuring compliance with terms of release justified a warrantless search of petitioners home. Scalia pointed out that both the law enforcement purpose and the police involvement in the Griffin search were substantial even before the searchs inception and that the probation officers position was analogous to that of the doctors and other medical professionals in the instance case. It would not be unreasonable to conclude that todays 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.
Comment: This is the second case this term, the other being Indianapolis v. Edmond, in which the Courts invalidation of a search turned on the question of the States motive in implementing a program. All of the justices in this matter seemed to assume that statutes forcing doctors to report crimes to the police are invariably proper under the Fourth Amendment. One wonders why this assumption was so readily made. If the State, by statutory enactment, forces a private citizen to become a state actor in certain circumstances, why doesnt this constitute state action under the Fourteenth Amendmentcalling into play the protections of the Constitution?