The Special Needs Exception to the Fourth Amendment and How it Applies to Government Drug Testing of Pregnant Women: the Supreme Court Clarifies Where the Lines Are Drawn in Ferguson v. City of Charleston

• Publication year: 2022

35 Creighton L. Rev. 857. THE SPECIAL NEEDS EXCEPTION TO THE FOURTH AMENDMENT AND HOW IT APPLIES TO GOVERNMENT DRUG TESTING OF PREGNANT WOMEN: THE SUPREME COURT CLARIFIES WHERE THE LINES ARE DRAWN IN FERGUSON V. CITY OF CHARLESTON

Creighton Law Review

Vol. 35

INTRODUCTION

Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.(fn1)

In Ferguson v. City of Charleston,(fn2) the government asserted a well-meaning "special need" in protecting the health of women and children to justify a drug testing policy used to gather evidence of drug abuse by pregnant women.(fn3) The special needs exception to the Fourth Amendment search and seizure requirements allows the government to conduct a search without a warrant or probable cause.(fn4) The United States Supreme Court has applied this special needs exception to the government's drug testing of individuals.(fn5) When the Court finds a special need, it determines the reasonableness of the search by balancing the government's interest against the individual's expectation of privacy.(fn6) However, when employees of a state hospital test a woman's bodily fluids for drugs, and then use those tests to criminally prosecute the woman, the government encroaches on a high expectation of privacy which the government's interest cannot outbalance.(fn7)

In Ferguson, the United States Supreme Court determined that a state hospital drug testing policy developed to deter pregnant patients from drug use must comply with the Fourth Amendment prohibitionsagainst warrantless, suspicionless searches.(fn8) The hospital adopted this drug testing policy to "identify/assist pregnant patients suspected of drug abuse."(fn9) Charleston police and prosecutors assisted in developing and administering this policy.(fn10) The policy provided that those patients testing positive for cocaine while pregnant could avoid arrest in certain circumstances.(fn11) However, if the patient tested positive a second time or failed to comply with the drug treatment program, police arrested the patient.(fn12) Patients who were tested under the drug testing policy claimed the policy violated their Fourth Amendment rights because the hospital tested the women without a warrant or probable cause.(fn13) The Court determined the search did not fall within the category of special needs.(fn14) Under the special needs exception, the government could conduct a search without a warrant or probable cause when the government presented special, non-law-enforcement needs and the government's interest outweighed the individual's privacy interests.(fn15) The Court stated that because the drug testing policy's primary purpose was to coerce patients into treatment, and because the policy extensively involved law enforcement at all stages, it must comply with Fourth Amendment requirements.(fn16)

This Note will discuss the Supreme Court's holding in Ferguson that the state actors did not have a special need beyond normal law enforcement.(fn17) First, this Note will explore the Supreme Court's development of a test for determining whether a search falls within the category of special needs and how the special needs exception applies to government conducted warrantless drug testing.(fn18) Second, this Note will discuss the Court's determination in Ferguson that the government did not have a special need beyond normal law enforcement justifying the conducting of warrantless drug testing.(fn19) Third, this Note will address the balancing of the government's interest against a patient's expectation of privacy in her relationship with her doctor.(fn20) This Note will discuss how the hospital's drug testing policy in Ferguson could not survive such a balancing test because the government's testing deters drug-using pregnant women from obtaining treatment and because of the strength of a patient's high expectation of privacy in her doctor-patient relationship.(fn21) Finally, this Note will conclude by discussing how the Court's decision in Ferguson recognized the substantiality of a doctor-patient relationship and as such, will result in needed restrictions on law enforcement's ability to use such a relationship to achieve law enforcement goals.(fn22)

FACTS AND HOLDING

In Ferguson v. City of Charleston,(fn23) the Medical University of South Carolina ("MUSC") had developed a drug testing policy in 1989, which set forth procedures allegedly for identifying and assisting pregnant patients suspected of abusing drugs.(fn24) Under the drug testing policy, MUSC tested a patient for cocaine if that patient showed "certain indicia of cocaine use" specified in the policy.(fn25) The drug testing policy provided a chain of custody for the drug testing, presumably to insure the use of the test results in later criminal proceedings.(fn26) In addition, the policy provided patients testing positive for cocaine with education, as well as referrals for treatment.(fn27) In order to keep the patients in treatment, the policy provisions were enforced by the threat of intervention by law enforcement.(fn28) Finally, the policy included forms for the patient to sign, arrest procedures for the police, and details of the possible criminal charges against the woman based on her stage of pregnancy.(fn29)

Prior to 1990, if a woman tested positive for cocaine, the hospital reported the test result to the City of Charleston Police Department ("CCPD") or to the Solicitor's office, and the police consequently ar-rested the patient for distributing to a minor.(fn30) The drug testing policy was later amended in early 1990 to provide a positive-testing patient the choice to undergo drug treatment in lieu of arrest.(fn31) If the patient elected drug treatment, MUSC did not forward her test results to CCPD and thus, CCPD did not arrest her.(fn32) However, if the patient did not comply with the requirements of the drug treatment program or tested positive a second time, CCPD would then arrest her.(fn33) Even if CCPD had arrested a patient, that patient could avoid prosecution by completing drug treatment; upon completion, CCPD would dismiss the charges against the patient.(fn34) The drug testing policy also provided that MUSC maintain records on patients testing positive for cocaine in order to track them and ensure their compliance with the drug testing policy's requirements.(fn35)

Ten women arrested under the drug testing policy ("the Patients"), filed suit against the defendants, including the city of Charleston, MUSC representatives, and law enforcement officials responsible for developing and enforcing the policy ("the Officials").(fn36) The Patients asserted several claims, including that the Officials violated the Patients' Fourth Amendment right against unreasonable searches and seizures.(fn37) Chief Judge C. Weston Houck of the United States District Court for the District of South Carolina rejected the Officials' first defense that because the searches furthered a "non-lawenforcement" purpose, the searches were reasonable as a matter of law.(fn38) Chief Judge Houck stated MUSC did not conduct the searches for independent purposes, but rather, MUSC conducted the searches pursuant to an agreement with police.(fn39) However, Chief Judge Houck submitted the Officials' second defense, that the Patients consented to the searches, to the jury.(fn40) Chief Judge Houck instructed the jury to find in favor of the Patients unless the jurors found the Patients had consented to the searches.(fn41) The jury found in favor of the Officials, determining the Patients had consented to the searches.(fn42)

The Patients appealed to the United States Court of Appeals for the Fourth Circuit, arguing the district court should not have submitted the issue of consent to the jury and the evidence did not support the jury's finding.(fn43) The Fourth Circuit affirmed the district court's ruling, but on the grounds that the searches were reasonable because they were special needs searches.(fn44) The court recognized "there are situations in which 'a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement.'"(fn45) The court determined MUSC's interest in reducing pregnant women's cocaine use was a substantial interest important enough to justify the search.(fn46) The court also stated the MUSC-performed searches were effective in advancing the public interest.(fn47) Finally, the court determined MUSC's searches minimally intruded on the Patients' privacy.(fn48)

In coming to this determination, the court balanced MUSC's interest in reducing pregnant women's cocaine use and the effectiveness of the searches with the Patients' expectations of privacy.(fn49) After balancing these factors, the court determined the searches were reasonable and thus did not violate the Patients' Fourth Amendment rights.(fn50) The Patients petitioned the United States Supreme Court for writ of certiorari.(fn51) The Court granted certiorari to review the Fourth Circuit's holding based on the special needs exception.(fn52)

The United States Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Fourth Circuit, stating Fourth...