1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 CRYSTAL M. FERGUSON, ET AL., : 4 Petitioners : 5 v. : No. 99-936 6 CITY OF CHARLESTON, ET AL. : 7 - - - - - - - - - - - - - - - -X 8 Washington, D.C. 9 Wednesday, October 4, 2000 10 The above-entitled matter came on for oral 11 argument before the Supreme Court of the United States at 12 10:03 a.m. 13 APPEARANCES: 14 PRISCILLA J. SMITH, ESQ., Baltimore, Maryland; on behalf 15 of the Petitioners. 16 ROBERT H. HOOD, ESQ., Charleston, South Carolina; on 17 behalf of the Respondents. 18 19 20 21 22 23 24 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 PRISCILLA J. SMITH, ESQ. 4 On behalf of the Petitioners 3 5 ORAL ARGUMENT OF 6 ROBERT H. HOOD, ESQ. 7 On behalf of the Respondents 30 8 REBUTTAL ARGUMENT OF 9 PRISCILLA J. SMITH, ESQ. 10 On behalf of the Petitioners 54 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 (10:03 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 now in Number 99-936, Crystal Ferguson v. The City of 5 Charleston. 6 Ms. Smith. 7 ORAL ARGUMENT OF PRISCILLA J. SMITH 8 ON BEHALF OF THE PETITIONERS 9 MS. SMITH: Mr. Chief Justice, and may it please 10 the Court: 11 This case involves pregnant women who sought 12 medical care at a public hospital and who then were 13 searched by their doctors for evidence of crimes and 14 arrested, seven of them right out of their hospital beds. 15 The special needs exception does not apply to this case to 16 excuse the lack of warrants for three reasons. 17 First, unlike every other special needs case, 18 the threat of law enforcement, the use of arrest as 19 leverage was the key element of the policy. It was, in 20 the respondent's own words, what made the policy 21 effective. 22 Second, the searches were conducted here in the 23 context of the private, physician-patient relationship and 24 thus there was no diminished expectation of privacy, 25 again, unlike the other special needs cases. 3 1 And finally, the defendants here skirted the 2 warrant and probable cause requirements without 3 demonstrating impracticability. 4 QUESTION: Ms. Smith, with respect to the first 5 of your reasons you point out that it is quite true, in a 6 sense, that the law enforcement component of the whole 7 scheme was necessary for success. I think success as 8 you're using it is success in getting people into the drug 9 treatment, the counseling program and finishing whatever 10 course of counseling there is, and I understand that. 11 But isn't there a special need, independent of 12 that, in the sense that the treating physicians need to 13 know -- regardless of whether anyone takes counseling or 14 not they simply need to know whether there is drug use 15 involved, because that affects the risks to the mother and 16 the risks to the fetus, and those are the things that they 17 need to provide for. 18 So my question is, even if we assumed there were 19 no law enforcement component and there were no counseling 20 scheme, wouldn't they have a special need to know and, in 21 fact, didn't they demonstrate that before the law 22 enforcement component was even added to the mix? 23 MS. SMITH: If there were no law enforcement 24 scheme there would be a search that was being done, but it 25 would be a search that was only done for medical purposes, 4 1 Your Honor, and therefore, as it was before the policy 2 was -- 3 QUESTION: Right. Right. Yes. 4 MS. SMITH: -- implemented, right, and therefore 5 it would have been consented to, because there was consent 6 to treatment in that context. 7 But as soon as they incorporated a criminal 8 sanction and made the policy what it was, they had to 9 comply with the Fourth Amendment, and what the warrant -- 10 QUESTION: Well, they had no -- I'll grant you 11 that the treating physicians had no special need, I guess, 12 to get people into drug treatment programs, necessarily, 13 but they did have a special need to discover the facts 14 and, in fact, to get the evidence that ultimately was 15 turned over to the police. That is correct, isn't it? 16 MS. SMITH: In some cases there may have been a 17 need to do medical testing. In some cases -- 18 QUESTION: Well, didn't they do it -- maybe I'm 19 wrong. Didn't they do it routinely? 20 MS. SMITH: They did medical testing prior to 21 the policy for about 3 to 6 months, Your Honor. They had 22 just started to do testing -- 23 QUESTION: Okay. 24 MS. SMITH: -- pursuant to a listed protocol. 25 As soon as they adopted the policy they -- 3 5 1 months later, approximately, they expanded the protocol in 2 order to find more people and really what this policy was 3 about was using arrest as leverage, and they've admitted 4 that in their brief. 5 QUESTION: Suppose they had reasons -- 6 MS. SMITH: Yes. 7 QUESTION: -- to have arrests. 8 MS. SMITH: Mm-hmm. 9 QUESTION: They had turned this information over 10 to the Social Services Department -- 11 MS. SMITH: Mm-hmm. 12 QUESTION: -- to the people who act as 13 counselors to women who are receiving public assistance. 14 Would that have involved any Fourth Amendment violation in 15 your view? 16 MS. SMITH: I don't believe it would have been a 17 violation, Your Honor, if they were testing for medical 18 purposes and discovered evidence of drug use during 19 pregnancy. At that point they have some level of 20 individualized suspicion and reporting to DSS, as they 21 did, for every other substance, for heroin, for 22 methamphetamines -- they didn't report any of those to the 23 police. Reporting those to DSS may meet some kind of 24 reasonable ground standard. 25 QUESTION: What is DSS, please? 6 1 MS. SMITH: I'm sorry, Your Honor. It's the 2 Department of Social Services, to the civil child abuse 3 authorities. 4 QUESTION: Why does individualized suspicion 5 help? In cases like Sitz, the roadblock case, one of the 6 rationales for sustaining it is that it's random. 7 MS. SMITH: That's right, Your Honor, but 8 Sitz is -- 9 QUESTION: They were work both ways, the 10 randomness and the individualized search, and it seems to 11 me that the policy of testing everyone to see if some need 12 counseling is perhaps more sustainable than the 13 individualized suspicion -- 14 MS. SMITH: Well, in fact -- 15 QUESTION: -- argument that you're making to 16 us -- 17 MS. SMITH: If I understand Your Honor 18 correctly, in Sitz, for example, it's a standardized, 19 nondiscretionary policy, and that I think is what saves 20 it. It's also a minimal intrusion, not a search like we 21 have here, and there's also the diminished expectation of 22 privacy that drivers have, and that this Court has 23 discussed in a number of cases, including Opperman, and in 24 Sitz, whereas in this case we have a discretionary list of 25 criteria where some women who met the criteria were 7 1 tested. We know in -- 2 QUESTION: So it would be more sustainable if 3 they did this for everybody? 4 MS. SMITH: I believe on some levels it would 5 be. On the other hand, this is not like Sitz for the 6 other reasons I mentioned. There's a search, not a -- 7 QUESTION: Well I mean, which would you say, the 8 individualized suspicion helps or hurts, because you were 9 arguing a moment ago that individual suspicion makes this 10 more suspect -- 11 MS. SMITH: But I don't -- I'm sorry. 12 QUESTION: -- and now you're telling me that it 13 would have been better without it. Well, I need to 14 know -- 15 MS. SMITH: I don't believe that there was 16 individualized -- 17 QUESTION: -- which is the more appropriate 18 policy for a hospital to use, to do this for everybody, or 19 just with individualized suspicion. Which of the two? 20 MS. SMITH: If there was true individualized 21 suspicion, and a search was done and -- just for civil 22 purposes, Your Honor, that might meet Fourth Amendment 23 standards. The lower courts have held civil searches to a 24 lower level than the probable cause standard. 25 QUESTION: Is DSS civil purposes? 8 1 MS. SMITH: Yes, Your Honor, I'm sorry. The 2 Department of Social Services is the civil child abuse 3 investigatory agency. 4 QUESTION: Well, let me put another hypothetical 5 to you, then. Many States, maybe most States require 6 physicians who in treating someone, find some indication 7 of criminal activity -- 8 MS. SMITH: Mm-hmm. 9 QUESTION: -- you can't get treated for a 10 gunshot wound, for example, without having that being 11 reported, be reported to the police. 12 Now, how does that differ from -- let's assume 13 they're just doing routine urinalyses of pregnant women to 14 be sure that they don't have drugs which would make the 15 delivery more difficult and possibly hurt the child, and 16 they find drugs in someone. Are they allowed to report 17 that to the police? 18 MS. SMITH: If there was a routine program, as 19 Your Honor is presenting it, without a targeted list of 20 criteria, as they had here, a discretionary list of 21 criteria, which is what makes this program so different -- 22 QUESTION: I don't understand. Why does that 23 make it different? 24 MS. SMITH: Because when you have a law 25 enforcement -- 9 1 QUESTION: Didn't they do it to everybody? 2 MS. SMITH: No, Your Honor. They didn't search 3 everyone. They looked at a targeted list of criteria that 4 included discretionary elements such as inadequate 5 prenatal care, and there's evidence in the record that 6 some people who had inadequate prenatal care were tested 7 and some people who had inadequate prenatal care weren't 8 tested, precisely because the word inadequate is so -- 9 QUESTION: Is there not a routine urine specimen 10 collected for someone in the hospital and tests employed? 11 I mean, that seems rather routine. Is that not done for 12 pregnant women entering a hospital -- 13 MS. SMITH: Not -- 14 QUESTION: -- in connection with a birth? 15 MS. SMITH: Not in -- not to be tested for 16 drugs, Your Honor. If you mean just in general are urine 17 samples taken, at some point during the course of prenatal 18 care, I believe they are, but not -- 19 QUESTION: Yes, and wouldn't that routinely show 20 up something like this, or -- 21 MS. SMITH: No. 22 QUESTION: -- do you have to apply special -- 23 MS. SMITH: You have to look for it. 24 QUESTION: -- analysis? 25 MS. SMITH: You have to search for it, Your 10 1 Honor, which is what they did here. 2 QUESTION: And is that not routine in today's 3 world, where drug use is more common, and the doctor might 4 need to know what to look for with the child? 5 MS. SMITH: Absolutely not, Your Honor. It's a 6 special test that would need to be run on top of what's 7 normally done and, in fact -- 8 QUESTION: Could a doctor today, when he 9 thinks -- he has a pregnant woman, and he thinks the 10 woman's taking drugs. Doctors won't look at the urine to 11 see if she's taking drugs? 12 MS. SMITH: They might, Your Honor. I 13 understood Justice O'Connor's question to be, just as a 14 routine matter is it always done. 15 QUESTION: Well, I don't know if it's a routine 16 matter or not. Where I'm having the problem is, if you 17 came in and told me, or the other side did, that doctors 18 normally test pregnant women for drugs, that would sound 19 okay to me, and moreover, if you told me no, that's not 20 what they do, they normally don't, but if they think the 21 woman's taking drugs and she's pregnant they do, that 22 would sound all right to me, too. I mean, after all, 23 they're supposed to be looking after the health of the 24 mother and the baby. 25 QUESTION: And I don't know why the latter 11 1 doesn't make this more defensible than the former. 2 MS. SMITH: Because what happened here was, they 3 incorporated a criminal sanction. 4 QUESTION: Ah, all right. 5 MS. SMITH: The reason they were doing the 6 testing -- 7 QUESTION: Now, if it's a criminal sanction that 8 makes the difference -- 9 MS. SMITH: Yes, Your Honor. 10 QUESTION: -- which is what I thought the case 11 was about, then I would like to know your response to 12 Justice Scalia's question. 13 MS. SMITH: Could you repeat the question, Your 14 Honor? 15 QUESTION: The question was, as I understood 16 it -- he's better at repeating his question than I, but I 17 thought -- 18 (Laughter.) 19 QUESTION: I won't resist the chance. 20 (Laughter.) 21 QUESTION: The question, as I took it, is, it's 22 a normal thing, I believe, in the medical world, at least 23 for psychiatric social workers and for doctors, they're 24 all told that if during a medical examination you discover 25 that the patient is going to hurt some other person by 12 1 killing, or -- you know, is going to kill the teller, 2 they're planning a robbery, you have an obligation to tell 3 the police. 4 And of course, that's relevant, because the 5 other side is saying that's just what's happening here. 6 We're learning that the woman has put this viable fetus, a 7 person, at risk, all right. These are children about to 8 be born, and they're at serious risk, and so why doesn't 9 this apply. 10 Now that, I think was -- is that fair, that that 11 was roughly the question, and why doesn't that apply? 12 MS. SMITH: That's not the case here, Your 13 Honor, because this is not a case where they were treating 14 people and in the course of medical treatment they came 15 across evidence of a bullet or evidence of drug use. They 16 searched for it. They joined with the police to determine 17 what criteria they were going to use to do the search. It 18 was not a -- 19 QUESTION: Well, Ms. Smith -- 20 MS. SMITH: Yes. 21 QUESTION: -- the vehicle for the discovery was 22 a urine sample, was it not? 23 MS. SMITH: That's right, Your Honor. 24 QUESTION: And I suppose you have to decide when 25 you have a urine sample you could look for different 13 1 things in different ways. 2 MS. SMITH: That's right, Your Honor. 3 QUESTION: And you say they have made a special 4 search for this kind of thing. 5 MS. SMITH: Absolutely. 6 QUESTION: To determine anything from a urine 7 sample you have to make a special search, don't you? 8 MS. SMITH: Well, that's true, Your Honor, but 9 the difference here is that the search is done 10 specifically to use arrest, to use the criminal sanction 11 and incorporate that into their treatment. 12 QUESTION: So your complaint is not that it was 13 done for drugs, but that the use of the discovery would be 14 used for arrest. 15 MS. SMITH: That's right, Your Honor. As soon 16 as they started to search, as soon as they became 17 essentially the police, searching for evidence of a crime, 18 in order to use arrest as leverage they took on a new role 19 and they had to -- they became like a police officer 20 searching a suspect. 21 QUESTION: I gathered from some of your previous 22 answers to questions that you're objecting that this test 23 for drugs was something so highly specialized that itself 24 it raised a flag, but it's only that it was used in 25 connection with a desire to bring law enforcement to play 14 1 that you object to it. 2 MS. SMITH: I don't know if I understand what 3 you're saying, Your Honor. I'm sorry. 4 QUESTION: Well, you know, you take a urine 5 specimen, and I think physicians can look for any number 6 of things in the urine specimen. Each one requires a 7 specific procedure, and I don't think looking for drugs 8 requires any different sort of procedure than to look for 9 any number of other things in the urine sample. 10 MS. SMITH: Well, it requires a separate test, 11 Your Honor. 12 QUESTION: A separate -- 13 MS. SMITH: Is that what you mean, or -- 14 QUESTION: No. I had thought that you could use 15 a urine sample and test for any number of things with that 16 sample. 17 MS. SMITH: That's true, yes, you can test 18 for -- 19 QUESTION: And one of them would be drugs. 20 MS. SMITH: And one of them would be drugs, but 21 it's a specific extra step that's not done unless you meet 22 the criteria, and unless you want to use arrest as 23 leverage. 24 QUESTION: You mean, so far as this procedure 25 was concerned? 15 1 MS. SMITH: As far as this policy goes. 2 QUESTION: Okay, but those criteria would be the 3 same criteria that would determine whether it was likely 4 that this woman was endangering her health and the health 5 of the child. Are the criteria any different? 6 MS. SMITH: Well, the criteria were changed 7 after the policy was instituted. 8 QUESTION: Well, that doesn't -- 9 MS. SMITH: And there's -- 10 QUESTION: Are the criteria any different from 11 what would be reasonable criteria to determine whether the 12 woman was at risk because of drug use or was endangering 13 the fetus because of drug use? 14 MS. SMITH: Absolutely. They are not reasonable 15 criteria, Your Honor -- 16 QUESTION: Why? 17 MS. SMITH: -- and the experts have testified 18 that criteria like inadequate prenatal care, lay prenatal 19 care, preterm labor, these are medical complications of 20 pregnancy -- 21 QUESTION: Why doesn't the -- 22 MS. SMITH: -- or they're more apt to be 23 indicators of poverty than they are of drug use. 24 QUESTION: Well, why doesn't that put the woman 25 and the child at greater risk -- 16 1 MS. SMITH: For drug use? 2 QUESTION: -- that there's been inadequate 3 prenatal care? I mean, the drug use would be all the more 4 dangerous for the woman and the child. 5 MS. SMITH: It may have put her at greater risk 6 for other -- not having gotten prenatal care, but it 7 didn't give us any reasonable suspicion, reasonable 8 grounds, probable cause, whatever level of individualized 9 suspicion you're looking for -- 10 QUESTION: Ms. Smith, may I go back -- 11 QUESTION: May I ask, Ms. Smith, was this the 12 same program instituted at any other hospital? 13 MS. SMITH: I'm sorry, Your Honor. 14 QUESTION: What about the other hospitals in the 15 City of Charleston? 16 MS. SMITH: No other hospitals -- 17 QUESTION: Do they follow the same procedures? 18 MS. SMITH: No, Your Honor and, in fact, that's 19 one of the things that shows the discretion. The law 20 enforcement officers in this case went to the one public 21 hospital, joined with doctors at the one public hospital 22 to enforce this policy. They did not enforce this policy 23 at the private hospitals, and they did not -- 24 QUESTION: Well, you're saying they didn't have 25 the arrangement with law enforcement at other hospitals. 17 1 MS. SMITH: That's right. 2 QUESTION: But you're not saying that other 3 hospitals as a matter of course ignored the possibility, 4 if they had reason to suspect it, they ignored the 5 possibility of drug use among pregnant women. 6 MS. SMITH: Nobody at another hospital -- 7 QUESTION: We -- 8 MS. SMITH: That's right, Your Honor -- 9 QUESTION: Yes, okay. 10 MS. SMITH: -- but nobody at another hospital 11 searched their patients in order to use arrest as 12 leverage. 13 QUESTION: Ms. Smith -- 14 QUESTION: Well, all right, but it's the arrest 15 as leverage then. 16 MS. SMITH: Mm-hmm. 17 QUESTION: If the doctor -- as I understand it, 18 if the doctor, acting without any prearrangement with the 19 police -- 20 MS. SMITH: Mm-hmm. 21 QUESTION: -- had said, I think we have reason 22 to worry about drug use in this patient, test the urine to 23 see if there is an indication of drug use, and the 24 hospital had done so, they had found such an indication, I 25 take it in your judgment there would be no constitutional 18 1 problem if they then called the police and said, we have 2 evidence that patient X is using drugs. 3 MS. SMITH: And I think the reason why, Your 4 Honor, is because there's probable cause there. There may 5 be a lower level of suspicion, depending on the 6 circumstances, to report to a civil authority like a 7 Department of Social Services. 8 QUESTION: A hospital knows that it's operating 9 in an area where there is a lot of drug use, and it just 10 says, as a matter of sound policy, we're going to test all 11 of the patients who come in. We have a very high 12 percentage. We don't want to take a chance. 13 MS. SMITH: Your Honor, the same reasoning -- 14 QUESTION: We're doing urinalyses anyway, we're 15 going to add drug use to the -- 16 MS. SMITH: The same reasoning would apply to 17 searches of people's homes. There's a high crime area, we 18 know there's a lot of drug sales that go on here, we don't 19 like the look of these houses, they meet a criteria 20 that -- 21 QUESTION: But this is being done for medical 22 purposes. That's why the hospital does it. We're 23 concerned that there is a high incidence of drug use in 24 this community. We know that. Now, you know, it's hard 25 to tell who is and who isn't, but to be sure of being able 19 1 to treat the woman and the child properly, we're going to 2 give a urinalysis to everyone who comes in for drug use. 3 MS. SMITH: But they can't -- the difference 4 here, Your Honor, is that they set out to target certain 5 people, to test certain people in order to use arrest as 6 leverage, not simply for medical purposes any more, and 7 the criteria, the list of criteria is a discretionary list 8 of criteria that's now being applied in the context of a 9 police search, which is what made Delaware v. Prouse an 10 improper program. 11 QUESTION: What's hard for me is to figure out 12 what you mean by this leverage point. The -- imagine you 13 have a community with a high incidence of tuberculosis. 14 MS. SMITH: Mm-hmm. 15 QUESTION: Is there anything wrong with doctors 16 saying, you know, we're just going to regularly test our 17 pregnant women to see if they have it? 18 MS. SMITH: Without their consent? 19 QUESTION: There -- you feel -- I don't know -- 20 the consent's a separate issue here, and I suppose that 21 doctors normally do get consent -- 22 MS. SMITH: If they were testing people -- 23 QUESTION: -- for the test anyway. 24 MS. SMITH: If they were testing people for 25 medical purposes and they had consent to medical care, 20 1 then there's not a problem. 2 QUESTION: Fine. All right. Now, suppose that 3 the same -- it's not tuberculosis, but it's simply drug 4 use. 5 MS. SMITH: Right. 6 QUESTION: Okay. 7 MS. SMITH: It's not -- it is a problem, Your 8 Honor, if the purpose of the search -- 9 QUESTION: But I'm -- just follow my reasoning. 10 MS. SMITH: Yes, I'm sorry. 11 QUESTION: All we're doing is testing the woman. 12 For tuberculosis it's okay, right, with consent? 13 MS. SMITH: If it's medical treatment, yes. 14 Yes. 15 QUESTION: Same with drug use. 16 MS. SMITH: If it's medical treatment -- 17 QUESTION: All right, fine. 18 MS. SMITH: -- and there's consent to do that, 19 yes. 20 QUESTION: Now, if the doctor discovers in the 21 course of a test that the person's about to commit a 22 crime, he can report it to the police, right? 23 MS. SMITH: At that point he has probable cause 24 or individualized suspicion. 25 QUESTION: All right. So if you're that far 21 1 down the road -- 2 MS. SMITH: Uh-huh. 3 QUESTION: -- then you give the test, you 4 discover the result, and now you report it to the police, 5 and you're saying all that's okay, and so if there's 6 something -- if you're saying all that's okay, what's 7 different about this case? 8 MS. SMITH: What's different here is that the 9 search was conducted without probable cause. 10 QUESTION: Those are conclusions, but what I 11 want to know is, what's different from -- what happened in 12 the world that's different from what I just said? 13 MS. SMITH: What s happened -- 14 QUESTION: They give the test, they discover 15 there's the drug use, and they report it to the police. 16 MS. SMITH: What happened that's different is 17 that different people are tested, because we have 18 discretionary criteria that are being applied in a law 19 enforcement setting, so we have -- 20 QUESTION: Well, let me ask you this with 21 reference to this question of Justice Breyer. I thought, 22 and correct me if I'm wrong, that the district court found 23 the hospital personnel conducted the urine drug screens 24 for medical purposes, wholly independent of an intent to 25 aid law enforcement efforts. Now, has that been 22 1 determined to be an invalid finding? 2 MS. SMITH: He instructed the jury, Your Honor, 3 that there was a dual purpose to the test, that as soon as 4 there was also a law enforcement search, then the field 5 changed, the search changed, and the Fourth Amendment 6 applied. 7 QUESTION: But was there a finding at the -- by 8 the district court that it was conducted for medical 9 purposes, independent of the intent to aid law 10 enforcement? 11 MS. SMITH: In the context of jury instructions, 12 where he then said these were conducted for both purposes, 13 Your Honor, yes. 14 QUESTION: Did you, or did your counsel at the 15 trial level if it wasn't you, ever ask for a finding by 16 court or jury that any of the criteria used to determine 17 the urine -- that this test would be made of the urine 18 samples was not a criterion that was medically 19 appropriate? 20 MS. SMITH: I don't believe there was a request 21 for a finding, but there certainly was medical testimony 22 on that fact, Your Honor, from Ira Chasnoff, from Dr. 23 Chasnoff. 24 QUESTION: But we don't have any finding on it 25 by court, or by implication of the jury verdict, one way 23 1 or the other? 2 MS. SMITH: That's right, Your Honor. 3 QUESTION: Okay. 4 MS. SMITH: The jury verdict -- 5 QUESTION: Ms. Smith, I wish you would clarify 6 one point -- 7 MS. SMITH: Okay. 8 QUESTION: -- because it's gotten terribly 9 confused here. 10 MS. SMITH: Okay. 11 QUESTION: I thought that you said the only 12 thing that's wrong with this program was that it was 13 driven -- it was a means that the police were using to 14 apprehend people engaged in criminal conduct. You said in 15 answer to my question, I thought, if a doctor's just 16 testing for drugs so they'll know how to treat the woman 17 and the child, that's okay. If the doctors took that test 18 and gave it to the Social Service people, that's okay. So 19 all of that is okay, and we shouldn't, I think, go back 20 and qualify that unless you mean to. 21 I thought when you started out you said this was 22 a program driven by the police. It was their way of 23 getting people who had taken drugs. That's one thing. 24 MS. SMITH: Mm-hmm. 25 QUESTION: So I thought you said that's what 24 1 makes -- infects this whole thing. If you didn't have the 2 police driving it, it would be okay for medical purposes 3 and for social welfare purposes. Now, is that your 4 position? 5 MS. SMITH: That is my position, Your Honor, and 6 I didn't mean to change from that. All I meant to do was 7 clarify why I thought it was okay, and not a Fourth 8 Amendment violation, to then turn it over once you have 9 some evidence and you can meet the standards of the Fourth 10 Amendment. But it s a different -- 11 QUESTION: Did the police approach the hospital, 12 or did the hospital approach the police to set this 13 program in -- 14 MS. SMITH: The original call that went, Your 15 Honor, was from the hospital to the police, but then it 16 was a very preliminary inquiry, and a task force was 17 formed consisting of members of all the departments, and 18 the task force was actually chaired by law enforcement, by 19 the Chief of Police and by the Solicitor, and the policy 20 as first written was written by law enforcement, by the 21 police. 22 QUESTION: But the initiative came from the 23 hospital. 24 MS. SMITH: The question -- 25 QUESTION: The police didn't show up at the 25 1 hospital one day and say, you know, we'd like to find some 2 way to bust your patients here. 3 MS. SMITH: No. The -- 4 QUESTION: It was somehow the doctors who were 5 concerned that there was a problem with drug use by 6 pregnant women. 7 MS. SMITH: The question -- that's right, Your 8 Honor. The question originally came from the hospital to 9 the police, but the answer, the answer of how to cope with 10 this came from the police, and they wrote the policy, and 11 they taught the hospital how to maintain the chain of 12 evidence at the beginning of the search for people who 13 fell within a list of discretionary criteria, and they 14 enforced this policy at this one hospital and not at any 15 other hospital. 16 QUESTION: Okay -- 17 QUESTION: Suppose I thought that there were 18 probable -- 19 QUESTION: -- could extend the policy to other 20 hospitals? 21 MS. SMITH: I'm sorry, Your Honor. 22 QUESTION: Was there ever any effort made to 23 extend the policy to other hospitals? 24 MS. SMITH: No, Your Honor, there was not. 25 QUESTION: Was there any explanation why not? 26 1 MS. SMITH: No, Your Honor, there was not. 2 QUESTION: I take it that had there not been the 3 formality of the prearrangement, the agreement with the 4 police, that the result would be different in this case. 5 In other words, if they had made the phone call 6 and the police hadn't said, yeah, the way to do it is to 7 maintain the chain of custody and so on, on your own 8 reasoning there would be no constitutional violation in 9 this case. 10 MS. SMITH: I think that's true, Your Honor, but 11 the purpose of the warrant requirement -- at least for the 12 people who tested positive and they then were reported, 13 but for the people who didn't test positive and who were 14 searched, we don't know who those people were, there was 15 certainly a constitutional violation there, because they 16 were being searched for -- no, I'm sorry, Your Honor, I'm 17 wrong. 18 QUESTION: Okay. 19 MS. SMITH: Because they weren't being searched 20 for law enforcement purposes. 21 QUESTION: So there's -- there -- 22 MS. SMITH: You're right. 23 QUESTION: It is simply the agreement, in 24 effect -- 25 MS. SMITH: It's the agreement, and -- 27 1 QUESTION: -- that makes the difference between 2 constitutionality and unconstitutionality. 3 MS. SMITH: And it's a list of discretionary 4 criteria being applied by police officers. It's the 5 difference between Delaware v. Prouse and Sitz. 6 QUESTION: No, but I mean, as I understand -- 7 maybe I misunderstood your answer to Justice Ginsburg a 8 minute ago. You said in so many words it's the police 9 component of this scheme that taints it, and I understood 10 that to at least imply sort of the same point that I was 11 getting at with my question, that there's no finding here, 12 there's no reason for -- we cannot assume here that the 13 criteria for taking samples or for testing samples were 14 criteria that were not medically appropriate. 15 Maybe not all of them were used before, but we 16 have to -- I think we have to assume, as the case comes to 17 us and as you present your argument, that the reasons the 18 hospital used for determining that a sample would be taken 19 and the criteria for testing that sample for drug presence 20 were medically appropriate criteria. 21 MS. SMITH: Well, there's no finding on that 22 from the district court, and the only testimony shows that 23 it's a list of discretionary criteria that is not liable 24 to really find people who use cocaine -- 25 QUESTION: So when you say that in so many words 28 1 it's the police component of the scheme that taints it, 2 what you mean to say is that part of the very -- the very 3 determination of whether to test or not was modified from 4 a medically appropriate set of criteria to at least a 5 partial law enforcement set of criteria. Is that your 6 argument? 7 MS. SMITH: I think the difference is, Your 8 Honor, that the -- 9 QUESTION: No, but wait a minute. 10 MS. SMITH: Yes. 11 QUESTION: I want to understand you. Yes or no, 12 is that your argument? 13 MS. SMITH: I think it's not quite my argument, 14 because the issue I think is that the discretion when it's 15 used by a doctor for medical purposes -- doctors have 16 discretion and that may be appropriate in the context of 17 medicine, but once discretion is used by police officers 18 for a law enforcement purpose, the world changes. 19 QUESTION: You're saying the doctor has become a 20 police agent. 21 MS. SMITH: Absolutely, Your Honor. 22 QUESTION: So that the doctor must be treated as 23 a police officer. 24 MS. SMITH: Absolutely, Your Honor. 25 QUESTION: Okay. 29 1 MS. SMITH: I'd like to reserve the rest of my 2 time for rebuttal. 3 QUESTION: Very well, Ms. Smith. 4 Mr. Hood, we'll hear from you. 5 ORAL ARGUMENT OF ROBERT H. HOOD 6 ON BEHALF OF THE RESPONDENTS 7 MR. HOOD: Mr. Chief Justice, and may it please 8 the Court: 9 The issue presented is whether urine drug 10 screens for medical purposes were reasonable under the 11 special needs doctrine and as consensual searches. 12 QUESTION: May I just, at that very point, I 13 thought we had to assume for purposes of analyzing this 14 issue that there was no consent. 15 MR. HOOD: Your Honor, we raised the issue of 16 consent at trial. We proved that each and every plaintiff 17 consented. The jury found they consented. 18 QUESTION: The jury found consent. 19 MR. HOOD: Yes, sir. 20 QUESTION: But then in affirming the jury 21 verdict the court of appeals did not reach the issue of 22 consent and said -- 23 MR. HOOD: Correct. 24 QUESTION: -- and in fact held that even if 25 there were no consent, these searches were proper under 30 1 the special needs doctrine, is that not right? 2 MR. HOOD: Yes, Justice Stevens. 3 QUESTION: So don't we have to assume for 4 purposes of analyzing the legal issue that there was no 5 consent, and if there's an issue to be -- if we disagreed 6 with the court of appeals, in other words, we'd send it 7 back to say whether there was evidence supporting the jury 8 verdict. 9 MR. HOOD: Well, sir, I don't agree with that, 10 because I believe under the United States v. New York 11 Telephone Company, decided in 1977, the Court is not 12 limited to affirm on an issue that is not really -- 13 QUESTION: Well, no, we could affirm -- 14 MR. HOOD: Yes, sir. 15 QUESTION: -- on the ground that there was 16 consent, but the special needs -- and then we wouldn't 17 need to reach the issue of special needs. 18 MR. HOOD: Correct. 19 QUESTION: But if we were to confront the issue 20 of special needs, we do that on the assumption that we 21 don't have to decide whether there was consent or not, 22 which is tantamount as a matter of law to saying we 23 assume, in analyzing this issue, that there was no 24 consent. 25 MR. HOOD: Correct, and that's what the Fourth 31 1 Circuit did, Your Honor. 2 The policy purpose was to prevent pregnant women 3 from using cocaine. 4 QUESTION: How did that work when the woman in 5 question was no longer pregnant, had given birth to the 6 child, and was taken from the hospital just after birth? 7 You can't prevent anything when a child is born. 8 As I understand it, most of these plaintiffs 9 were women who did not come in for prenatal care, but were 10 tested at the time they came into the hospital to give 11 birth, and then one day after the birth were removed to 12 the jail. Is that not the case, that most of these 13 arrests took place after a child was born? 14 MR. HOOD: No, Your Honor. Most of them were 15 not after birth. Several of the women -- four of them 16 were before the policy became the protocol of Medical 17 University, so what was going on with those four was, they 18 were turned over to substance abuse, or DSS. Because they 19 were tested positive for cocaine, it was child abuse. The 20 protocol went into -- 21 QUESTION: I may have misspoken when I said 22 most. Were there women among these plaintiffs who were 23 tested at the time of childbirth and who were sent to jail 24 the day after the child was born? 25 MR. HOOD: Yes, Your Honor, there were. 32 1 However -- 2 QUESTION: So at least as to those women I don't 3 see a protective purpose. Whatever damage was done was 4 done. 5 MR. HOOD: The purpose there, Your Honor, was 6 child abuse. The child had been subjected to cocaine, was 7 born a cocaine baby with brain damage and other damage 8 from the cocaine. The Department of Social Services took 9 over -- 10 QUESTION: Was that part of the showing, that 11 these children were, in fact, brain damaged? 12 MR. HOOD: I didn't hear the premise. 13 QUESTION: Was there a determination that the 14 child was, in fact, brain damaged in any of these cases? 15 As I understand it -- 16 MR. HOOD: If we didn't have time -- 17 QUESTION: -- no one inspected the child. 18 MR. HOOD: -- for the life of the policy, to 19 answer that question, we didn't do the follow-up studies 20 with these individuals, 10 individuals. 21 But of these 10, only five of them were actually 22 under the protocol adopted by the board of trustees of 23 Medical University on November 27, 1989 and each of those 24 five signed a letter, when they tested positive, from the 25 Solicitor that said, I understand that if I test positive 33 1 again, I will be arrested and I will be prosecuted. 2 They went home. They came back a week, or two, 3 or three later, tested positive again, Justice Ginsburg 4 and yes, they were arrested. They were put in jail, not 5 only for the illegal crime of using cocaine themselves, 6 but for what they were doing to their child, and they knew 7 they were going to be arrested in each instance. 8 QUESTION: But I thought that was irrelevant in 9 the case, because you -- perhaps I have the facts wrong, 10 but I thought they were women who did not come in before, 11 who came in to give birth, tested positive, the only thing 12 that they signed was the kind of consent form that we all 13 file when we go to the hospital for a procedure -- 14 MR. HOOD: Well, Your Honor, the -- one or two 15 of the women meet that category, and those women were 16 before the Medical University board adopted this protocol. 17 The protocol was medical. The doctors wrote the protocol. 18 There were nine criteria. The district court found that 19 those criteria were medically valid and good. 20 The district court found that as to consent, we 21 had to make one step further than that Solicitor letter. 22 We had to show that each of those 10 plaintiffs knew that 23 they could be arrested. The jury found that they knew 24 that. That issue was briefed to the Fourth Circuit. The 25 Fourth Circuit went and affirmed the case on special 34 1 needs. 2 This case is so much stronger than any opinion 3 the United States Supreme Court has written on special 4 needs for two reasons. We have a medical, independent 5 clinical reason to test here. We have child abuse, and a 6 reporting statute that's involved. We're not just 7 stopping someone to see if they're drunk or not. We are 8 trying to stop a woman from doing irreparable, major harm 9 to her child in utero. 10 QUESTION: I still don't see how that works out 11 when the woman has had a child. I can see if you were 12 making an argument about intervening at an early stage in 13 pregnancy to help the woman, but I don't understand that 14 argument at all when the child is already born. 15 MR. HOOD: Well -- 16 QUESTION: You say there are no such children 17 except before the protocol was adopted? 18 MR. HOOD: Yes, Your Honor. The -- if you would 19 like, we can go through each one of these individuals, and 20 I'm prepared to do that if you want to, but what I wanted 21 to say about special needs and what the Fourth Circuit did 22 and what this Court's done with special needs is, what 23 we're dealing with here is a tragic crisis in society in 24 1989, a true medical epidemic. In the words of the 25 plaintiffs -- 35 1 QUESTION: But in only one of the city's 2 hospitals, as I understand it. 3 (Laughter.) 4 QUESTION: But in only one of the city's 5 hospitals. 6 MR. HOOD: Your Honor, we only have one teaching 7 hospital in Charleston. It's the Medical University of 8 South Carolina. It's owned by the State. 9 QUESTION: How about other hospitals where 10 pregnant women came to give birth? 11 MR. HOOD: The Solicitor at the time approached 12 the other hospital, large hospital in our community, wrote 13 the hospital. This lawsuit came along and everything was 14 stopped at my request. 15 QUESTION: The Solicitor asked the other 16 hospital -- 17 MR. HOOD: If they would consider adopting their 18 board of directors, of trustees would adopt the policy, 19 yes. 20 QUESTION: And they did not, they did not adopt 21 such a policy. 22 MR. HOOD: Correct. 23 QUESTION: Because of the pending lawsuit here. 24 MR. HOOD: Yes, Your Honor. 25 QUESTION: Well, we don't know why. I mean, you 36 1 can -- 2 QUESTION: You said that was the reason. 3 MR. HOOD: I can't -- there's no testimony in 4 the record to answer your question, but -- 5 QUESTION: Yes, so you're -- you're making -- 6 MR. HOOD: -- if I could be allowed to testify, 7 I believe that's the reason. 8 QUESTION: There's also no testimony in the 9 record that any other hospital was approached. 10 MR. HOOD: Your Honor, there is a reference on 11 page 1128 where there's testimony, Justice Scalia, about 12 David Swacky, the Solicitor at the time, approaching Roper 13 Hospital. 14 QUESTION: And Roper Hospital refusing. 15 MR. HOOD: Not as to what they did, just that 16 they were considering it. Then the lawsuit came along. 17 QUESTION: Did Roper Hospital have any 18 comparable protocol of testing, not of informing the 19 Department or the police, but did they have any comparable 20 protocol for testing pregnant women prior to the time they 21 were approached by the Solicitor? 22 MR. HOOD: Justice Souter, Roper Hospital is a 23 charitable hospital owned by doctors, and there are no 24 other State-owned hospitals in Charleston where -- 25 QUESTION: I don't care whether it's State- 37 1 owned or not. The point I'm trying to get at is the 2 medical appropriateness, or the lack of an indication of 3 medical appropriateness for what was being done here, and 4 my question is, if you know, or if it's in the record, is 5 there any indication that Roper Hospital was following 6 some kind of a protocol for treating for drug use among 7 pregnant patients before they were approached by the 8 Solicitor? 9 MR. HOOD: The answer is yes. Every hospital in 10 South Carolina follows the child abuse statute. The 11 doctors are absolutely required to. 12 QUESTION: Well, the child abuse statute, as I 13 understand it, requires reporting. 14 MR. HOOD: Correct. 15 QUESTION: But does the child abuse statute 16 impose a protocol of medical testing on doctors who treat 17 pregnant women? 18 MR. HOOD: No, it does not. 19 QUESTION: Okay. So what is the indication that 20 at Roper Hospital they were following a protocol of 21 testing urine for drug use when a pregnant woman came in? 22 What's the record tell us? 23 MR. HOOD: There's nothing in this record -- 24 QUESTION: Okay. 25 MR. HOOD: -- but every hospital tested urine of 38 1 every pregnant woman because they need to know what's in 2 her body so they can treat her. They're going to give her 3 anesthesia. 4 QUESTION: All right. 5 QUESTION: For drugs? Do they test it for 6 drugs? I mean, you know, it isn't an omnibus test. You 7 have to decide what you're going to test for. Do they all 8 test for drugs? 9 MR. HOOD: If the doctors suspect the use of 10 drugs in any hospital, hopefully in this country, they 11 test for drugs -- 12 QUESTION: Well, I'm -- 13 MR. HOOD: -- so they can treat the patient 14 properly. 15 QUESTION: I expect that is so, but the protocol 16 here went far beyond a particularized suspicion as a 17 reason for doing -- running that urine test, and I take it 18 that the answer, and I don't want to spend a lot more time 19 on this, but I take the answer is, the record does not 20 tell us whether Roper Hospital was following any kind of a 21 comparable protocol of testing most urine samples of most 22 women coming in for prenatal care, is that correct? 23 MR. HOOD: Correct, Your Honor. 24 QUESTION: Okay. One last question. You 25 indicated that there were findings or determinations of 39 1 some sort with respect to the hospital in this case that 2 the criteria were medically appropriate. Where do we find 3 those determinations? 4 MR. HOOD: By the district judge himself. 5 QUESTION: What did -- did he make specific 6 findings of fact? 7 MR. HOOD: Yes, sir. Judge C. Winston, our 8 senior district judge in South Carolina, on page 1415 of 9 the joint appendix states, Medical University adopted 10 these medically valid criteria to avoid the very 11 subjective test about which the plaintiffs complain. 12 Judge Houck, at the conclusion of this 5-week 13 trial, made very -- and it's in those pages, the 1400 14 numbers -- about each and every issue that was raised in 15 this case. He took us one step further on consent than I 16 think this Court requires. He required us to convince the 17 jury that each person understood that their -- if they 18 tested positive, they would be arrested. 19 QUESTION: And that -- but that -- the -- far as 20 the consent is concerned, it was an argument which, as you 21 said, the Eleventh Circuit didn't address, that there was 22 insufficient evidence of that consent, and I looked at the 23 consent form. It doesn't say anything about police. 24 MR. HOOD: The consent form says, I consent to 25 having -- to the testing of drugs, and there are two 40 1 consent forms, one in the hospital, one in the clinic. 2 They both say the same thing. Every patient signed that. 3 Then, when they suspected under this nine 4 medical diagnoses, these differential diagnoses, that the 5 patient was using cocaine, then a counselor met with the 6 patient, showed her a video, explained to her the 7 consequences, the dire, staggering consequences to her 8 child and herself of using cocaine, basically pled with 9 her to stop doing it, got her to sign this Solicitor 10 letter, and sent her to substance abuse, and if she went, 11 great, and that's what happened to 90 percent of them. 12 QUESTION: What happened to the people who 13 didn't come in for prenatal care, who came in at the time 14 of labor, and -- well, you tell me -- and tested? 15 MR. HOOD: If they tested positive they were 16 given what I just said, and -- 17 QUESTION: Well, tell me when they were given 18 that, because it seems it would be rather stressful 19 situation in which to try to get informed consent from 20 someone. 21 MR. HOOD: Well, you have to put it in the 22 context of what was going on. The reason they were told 23 is because it was mandatory. The hospital board of 24 directors adopted a protocol that was mandatory and 25 nondiscretionary, once you met that criteria, those 41 1 medical criteria. 2 QUESTION: Yes, well, you're stepping over to 3 another question. The one I asked concerned the argument 4 that the Eleventh Amendment didn't address the sufficiency 5 of the evidence of consent, and I was simply suggesting to 6 you that there might be a question of the sufficiency of 7 evidence of consent in the case of women who never came to 8 the hospital for prenatal care, who came in while they 9 were in labor, and what they consented to, what they 10 signed at that point, there might be reason to suspect the 11 legitimacy, the informed nature, the voluntary nature of 12 such consent. That's all I meant to indicate. 13 MR. HOOD: Yes, Your Honor. 14 QUESTION: Mr. Hood, I can't find your -- 15 QUESTION: Well, I thought that we established 16 that we take this on the assumption there was no consent. 17 The court of appeals didn't address it, and for purposes 18 of deciding special needs we just assume no consent. 19 Isn't that correct? You already admitted that. Is that 20 right? 21 MR. HOOD: No, Your Honor, I don't concede there 22 was not consent. In fact, I argued -- 23 QUESTION: No. No, you misunderstand me. 24 MR. HOOD: I'm sorry. 25 QUESTION: For purposes of deciding the issue on 42 1 which we granted certiorari, special needs exception -- 2 MR. HOOD: Yes, Your Honor. 3 QUESTION: -- we assume for purposes of deciding 4 that there was no consent, because consent was not 5 reviewed by the court of appeals. The court of appeals 6 decision just said this was reasonable under the Fourth 7 Amendment. Is that right? I thought we aired this with 8 Justice Stevens at the outset, and yet we're getting 9 bogged down in consent, and I just want to know where we 10 are. 11 MR. HOOD: Justice O'Connor, in my humble 12 opinion we have to affirm the lower court special needs. 13 We have consent. We have dual purpose but we do not -- 14 State actors -- 15 QUESTION: I thought that for purposes of 16 deciding the question on which we granted certiorari we 17 simply assume there was no consent. It will go back to 18 the court of appeals, depending on how we resolve it, to 19 determine whether there was consent. 20 Suppose we say it was unreasonable. It would go 21 back, then, for review of consent. I assumed that that 22 was how we were deciding it. I thought that's what you 23 reviewed with Justice Stevens when you began your 24 argument. Am I wrong? 25 MR. HOOD: You're correct, Your Honor, in that 43 1 certiorari was granted on one issue, and that is correct. 2 QUESTION: Yes, okay, and on that issue what 3 support in our case law do you find that supports a 4 special needs exception where law enforcement is tangled 5 up with the search? Is there any case of ours where we 6 have so held? 7 MR. HOOD: Your Honor, each of the special needs 8 cases apply directly, starting with the opinion of the 9 Court in TLO and Your Honor's own concurring opinion 10 there, with Justice Powell. 11 QUESTION: Yes, well, we reserved the answer to 12 the question in TLO, whether it would be the same answer 13 if law enforcement were involved. 14 MR. HOOD: We then jump to the Griffin case from 15 Wisconsin, the Sitz case, and in those opinions law 16 enforcement was involved, and in our case the role of -- 17 QUESTION: Not in the conduct of the search, 18 were they -- 19 MR. HOOD: Nor was it in our -- 20 QUESTION: -- or in the determination to have 21 it? 22 MR. HOOD: In our case law enforcement was not 23 involved at the time of the search. They had nothing to 24 do with the search. 25 QUESTION: Well, I thought the procedure was 44 1 developed with the assistance of the police, in part, to 2 ascertain whether there was drug use so that people could 3 be charged. 4 MR. HOOD: That's the other side's argument. 5 That was not the proven facts. The facts -- 6 QUESTION: As I'm thinking about this at the 7 moment on this exact point, that if you have an 8 unconsented turning over of private medical information to 9 the police, there must be something special about the 10 circumstance. 11 Now, the AMA, and the most famous case in this 12 area, called Tarisoff, both try to define that 13 circumstance, and that circumstance, as the AMA, or as 14 Tarisoff defined it, involves when a patient threatens to 15 inflict serious bodily harm to herself or a third party 16 and there is a reasonable possibility that the patient 17 will carry out that threat, so I thought that you either 18 have to bring yourself within that exception, or you lose, 19 and what I'm worried about at the moment is how can you 20 bring yourself within that exception when you're faced 21 with all the material in the amicus briefs and all the 22 studies that suggest that this type of program does not 23 help third parties, namely the fetus. 24 Rather, there is a question as to how much 25 cocaine abuse hurts the fetus, particularly compared to 45 1 the situation where the mother does not request prenatal 2 care, and that this kind of program, because of the later 3 problem, the latter problem, probably hurts more fetuses 4 than it helps. 5 Now, faced with that kind of data, and I see no 6 data on the other side, I don't see how you can bring 7 yourself within the Tarisoff exception, and if you can't 8 do that, I don't see how you win the case. That's my 9 question. 10 MR. HOOD: Your Honor, we come within the 11 requirements that you have outlined. 12 QUESTION: Mm-hmm, all right. You come within 13 Tarisoff. Then you're arguing that you're within 14 Tarisoff. Fine. How do you get there, given this mass of 15 data that -- you know, that they refer to in the amicus 16 briefs, that -- and I've tried to look up a little 17 independently, where I've come to is the conclusion -- I'm 18 not a doctor or an epidemiologist, but it seems to me that 19 the studies on cocaine abuse are pretty inconclusive 20 and -- as to how they affect the fetus, and even if they 21 aren't, they're pretty one-sided, the studies, that this 22 kind of thing hurts the fetus because mothers don't come 23 in. 24 MR. HOOD: If Your Honor has a chance to look at 25 page 314 of the joint appendix, your question will be 46 1 answered by the plaintiff's lead expert, Dr. Ira Chasnoff, 2 wherein he said there was an urgent need for the medical 3 community to do something. This was a major crisis, an 4 epidemic in the United States, and we tried to down in 5 Charleston, and it worked, and 90 percent of the people 6 that had this awful addiction and were doing what they 7 were doing to their children were helped, and it worked. 8 We got the lawsuit, and we stopped, and here we 9 are. 10 QUESTION: Well, am I supposed -- 11 QUESTION: -- the Tarisoff case, there had been 12 no crime committed. In this case there had been a crime 13 committed. 14 MR. HOOD: Correct, Your Honor. 15 QUESTION: Oh, so in other words you think that 16 the Fourth Amendment permits the police to go to a doctor 17 and to ask the doctor to turn unconsented -- unconsented 18 private medical information over to the police about a 19 past crime? In other words, the Fourth Amendment permits 20 doctors to become agents in private -- you know, private 21 patient relationships and suddenly turn over everything to 22 the police, even though no future risk is at stake? 23 MR. HOOD: That's the other difference of our 24 case. It's a child abuse case, where the doctor has to do 25 it. There is no privacy. The doctor is violating the law 47 1 if he doesn't turn it over. 2 QUESTION: Mr. Hood, don't you have a law -- 3 QUESTION: And that's true with gunshot wounds, 4 and it's true with teachers who see children that have 5 been beaten by their parents. 6 MR. HOOD: Yes, Your Honor. 7 QUESTION: And don't you have a law that anyone 8 treated for a gunshot wound by a physician, the fact of 9 that treatment has to be -- 10 MR. HOOD: Yes, Your Honor. 11 QUESTION: -- told to the police? Of course. 12 MR. HOOD: Just like if she, if a pregnant 13 woman -- 14 QUESTION: It happens all the time that a doctor 15 has to turn somebody in. 16 You gave us a citation earlier for the statement 17 of the district judge to the effect that these protocols 18 were medically necessary. You said pages 14 to 15 of the 19 joint appendix. I can't find it. 20 MR. HOOD: The judge, findings of fact start on 21 page 1408, Justice Scalia. 22 QUESTION: 1408. You said page 14. 1408. 23 MR. HOOD: I apologize. I talk funny. 1408 -- 24 (Laughter.) 25 MR. HOOD: The order ends at 1417, Your Honor. 48 1 QUESTION: It seems there were a lot of doctors, 2 then, violating South Carolina law if only in this one 3 hospital were doctors engaged in this practice, and that's 4 a little odd. 5 They wouldn't need this protocol, and they 6 wouldn't need these meetings with law enforcement people, 7 if the law in fact required when they test, and one of the 8 things they test for is drugs, that they turn over that 9 information, but as far as this record shows it's only 10 this one hospital, and only pursuant to the protocol, so 11 that doesn't fit in with your statement that -- in answer 12 to some questions that yes, the doctors have an obligation 13 to and they do. 14 Is there anything to show that apart from this 15 one hospital and pursuant to this one protocol, that 16 doctors who find pregnant women testing positive for drugs 17 are turning over that information to the police? 18 MR. HOOD: Justice Ginsburg, I believe, and I 19 can't cite a page, that several of the experts that we put 20 on the stand in the 5-week trial said just that. However, 21 you have to look at the patient base that this hospital, 22 the State hospital -- 23 QUESTION: Say just that. Just -- I want to be 24 precise about, said just what? They said other hospitals, 25 other obstetrician-gynecologists are turning this 49 1 information over to the police because that's what a 2 doctor's obligation is? 3 MR. HOOD: Well, it never -- this issue never 4 came up at trial, but -- except to the extent that this 5 was a teaching hospital, and every young physician in the 6 OB department was taught about that. 7 QUESTION: I'm not asking about this hospital. 8 I'm asking about any other place. This place has a 9 protocol that the police have given to this hospital. 10 MR. HOOD: Not the police. I hate to interrupt 11 you, but the police did not do the protocol. The doctors 12 did it. 13 QUESTION: In which the police participated. 14 There were meetings -- 15 MR. HOOD: All the police did was say, you've 16 got a duty and a responsibility here, and they -- 17 QUESTION: Did they say it to any other 18 obstetrician-gynecologist, as far as the record shows it 19 seems to me you would have certainly put that into the 20 record if it existed, but what comes to us is one 21 hospital, and -- with the nurse who asked if we could 22 get -- can we get the police involved. There's not one 23 shred of any indication that other hospitals -- this is 24 the law. The law requires them to do it. 25 MR. HOOD: Justice Ginsburg, the question that 50 1 you're asking me was not raised at trial by anyone, nor 2 answered by anyone at trial, but the answer to your 3 question is, we have, like every State, a child abuse 4 statute, and if a doctor in any practice observes child 5 abuse, they have an affirmative duty to report it. 6 QUESTION: Mr. Hood, would you comment on this 7 point? With minor variations, I think we're pretty much 8 agreed that if in the normal course a doctor obtains the 9 evidence that a patient is about to commit some kind of 10 imminent violence or damage to another person, or if a 11 doctor obtains evidence such as gunshot evidence which 12 clearly points to a crime, that the doctor is permitted 13 and obligated to turn that evidence over to the police and 14 the police can use it. Start with that premise. 15 The argument that I want you to comment on is 16 this. That kind of a rule was derived in situations in 17 which the doctors are simply going about their business, 18 acting independently as physicians. In this case, 19 however, the doctors, as a result of their arrangements 20 with the police, had become in effect agents of the 21 police, and they were acting in a dual capacity. 22 They had their medical responsibilities, but 23 they were acting under an agreement with the police to 24 look for certain things and to turn over information if 25 they found it, and the argument is that in that case the 51 1 police should not be able to use the evidence unless the 2 evidence has been searched for and seized in accordance 3 with the same rules that the police would have to follow 4 if they were doing it in the first place because 5 otherwise, in effect, the co-option of the medical 6 community will eliminate the Fourth Amendment whenever the 7 police can use the doctors. What's your response to that? 8 MR. HOOD: The police were never the agent of 9 the hospital. The police were purely a means or method. 10 QUESTION: Well, let's assume that we found -- 11 let's just assume that we found, as a kind of a 12 constitutional fact on this record, that an agency 13 relationship had been established. What is your response 14 to the argument? 15 MR. HOOD: We strenuously objected it was 16 established. If it were established to the satisfaction 17 of anyone, and I don't believe it was at trial or at the 18 Fourth Circuit, then the role of the police, they are not 19 determining who is tested. They are not determining who 20 gets the test results. They are not determining the 21 counseling of the patient. They're not determining 22 whether the patient makes the counseling sessions. 23 They're not determining whether the patient signs a 24 consent form, which every one of them did. They're not 25 determining whether the patient actually makes the 52 1 substance abuse clinic -- 2 QUESTION: I think what you're arguing is that 3 there's no basis for finding that kind of agency here, but 4 if we make the assumption that there is a basis, what is 5 your response to the argument that in that case the 6 criteria for police receipt and use of evidence has got to 7 be the criteria that would apply even if the doctors 8 weren't involved because otherwise the Fourth Amendment 9 gets swallowed up in the agency relationship? 10 MR. HOOD: That the Fourth Amendment doesn't 11 apply, that the Court adopt the case of Attson from the 12 Ninth Circuit, wherein it said the dual purpose applies, 13 and if there are two purposes and one's medical and one's 14 not -- 15 QUESTION: No, but this -- 16 MR. HOOD: -- it's okay. 17 QUESTION: Okay, and so your answer -- I mean, I 18 guess I don't understand the argument. You're saying yes, 19 there's a way to say that the dual relationship doesn't 20 affect it, but is there a good reason for us not to fear 21 that this agency kind of relationship will swallow up the 22 Fourth Amendment standards that otherwise the police would 23 have to satisfy? 24 MR. HOOD: It didn't happen in this protocol, in 25 this policy. It never happened. All they did was to 53 1 help -- these people helped themselves. Every one of them 2 ended up getting off of cocaine, and it helped. 3 You know, one use of cocaine can kill the baby. 4 QUESTION: Mr. Hood, I guess the finding of fact 5 you're referring to is on page 1410, and I assume that 6 your colleague will address this in rebuttal. 7 The policy, the protocol was applied in all 8 maternity departments at MUSC. Its goal was not to arrest 9 patients, but to facilitate their treatment and protect 10 both the mother and unborn child. That's a finding of 11 fact. 12 MR. HOOD: Yes, Your Honor, that's correct, 13 Justice Scalia. That's what Judge Houck found. 14 Law enforcement was not the purpose of this 15 thing at all. It was purely the tragedy of a medical 16 crisis of these pathetic babies coming into the world and 17 trying to stop it, and trying to help them stop it. They 18 couldn't help themselves, some of them. 19 Thank you. 20 QUESTION: Thank you, Mr. Hood. 21 Ms. Smith, you have about 3 minutes remaining. 22 REBUTTAL ARGUMENT OF PRISCILLA J. SMITH 23 ON BEHALF OF THE PETITIONERS 24 MS. SMITH: Thank you, Your Honor. Three brief 25 points, Your Honor. 54 1 What distinguishes this policy from a medical 2 protocol is that it was designed by and for law 3 enforcement, and implemented by the hospital for the 4 purposes of crime detection. 5 To say that the medical criteria was medically 6 appropriate, as I said, is different from saying that it 7 establishes probable cause or individualized suspicion, or 8 allows the hospital officials therefore to search, as 9 agents of the police, under a police policy that 10 incorporates criminal sanctions for evidence of a crime, 11 and to turn that right over to the police. 12 And if it was probable cause, if they had 13 probable cause here, why not obtain a warrant? Why not 14 test your criteria with an objective magistrate to ensure 15 that you're not the discretion that's allowed in those 16 criteria is not being abused. 17 That's the purpose of the warrant requirement, 18 is to protect against that kind of abusive discretion, and 19 that's exactly the discretion we see that was used in this 20 policy, where women who met the criteria were not tested, 21 and women who didn't meet the criteria, perhaps, in some 22 cases were. We don't know. We do know that some who met 23 the criteria weren't tested. 24 In terms of the finding of fact, in the title VI 25 opinion the court, in addressing the policy as a whole, 55 1 talks about the goal of the policy, the ultimate goal of 2 the policy, but when he's looking, when the trial judge 3 looked at the purpose of the search, he recognized the 4 dual nature of that searched -- search, that there was a 5 medical purpose and a law enforcement purpose, and that's 6 what brought this search under the Fourth Amendment, and 7 that's what makes this policy so insidious. 8 What happened here is that 9 the doctors used the promise of confidentiality in the 10 private 11 physician-patient relationship to obtain information from 12 their patients in order to turn it over to the police. 13 That's all they did here, and when they did 14 that, when they took on the mantle of the police, they had 15 to obtain a warrant based on probable cause, and they had 16 to do that for all the reasons this Court enunciated in 17 the special needs doctrine, when it limits that doctrine 18 so that discretion will not invade police actions, so that 19 Delaware v. Prouse is not okay, Sitz is, because of that 20 discretion. 21 And that's why, even if this Court were to apply 22 the balancing test here, we've got a case that's got 23 discretionary criteria, we have a significant intrusion on 24 the body, not a minimal intrusion like we had in Sitz, and 25 we have no diminished expectation of privacy. In fact, we 56 1 have a heightened expectation of privacy in our 2 doctor-patient relationship, and as the amici point out 3 much better than I could, that's what's at stake in this 4 case. 5 So we ask this Court -- 6 CHIEF JUSTICE REHNQUIST: Thank you, Ms. Smith. 7 MS. SMITH: Thank you, Your Honor. 8 CHIEF JUSTICE REHNQUIST: The case is submitted. 9 (Whereupon, at 11:03 a.m., the case in the 10 above-entitled matter was submitted.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57