Ferguson V City of Charleston SC

Ferguson v. City of Charleston, S.C., 308 F.
3d 380 (2002)
Internal Medicine; American Academy

KeyCite Yellow Flag - Negative Treatment
of Addiction Psychiatry; Association of
Distinguished by Borkowski v. Baltimore County, Maryland, D.Md., Maternal and Child Health Programs; National
September 30, 2020
308 F.3d 380 Medical Association; Global Lawyers and
United States Court of Appeals, Fourth Circuit. Physicians; Adrienne Asch, Ph.D., M.S.;
John Arras, Ph.D.; Jeffrey Blustein, Ph.D.;
Crystal M. FERGUSON; Paula S. Hale;
James Campbell; Arthur Caplan, Ph.D.; Nancy
Ellen L. Knight; Patricia R. Williams;
Neveloff Dubler, J.D.; Ruth Faden, Ph.D.,
Lori Griffin; Pamela Pear; Sandra Powell;
M.P.H.; John Fletcher, Ph.D.; Jeanine Gage,
Laverne Singleton; Theresa Joseph; Darlene
M.S., R.N., C.S.; Leonard Glantz, J.D.; Susan
M. Nicholson, Plaintiffs–Appellants,
Dorr Goold, M.D., M.H.S.A., M.A.; Michael
and
Grodin, M.D., F.A.A.P.; Jeffrey Kahn, Ph.D.,
State–Record Company, Incorporated;
M.P.H.; Jay Katz, M.D.; Loretta Kopelmann,
The Evening Post Publishing
Ph.D.; Steven Leuthner, M.D., M.A.; Ruth
Company, Intervenors–Plaintiffs,
Macklin, Ph.D.; Mary Faith Marshall, Ph.D.;
v.
Anna C. Mastroianni, J.D., M.P.H.; Steven
CITY OF CHARLESTON, SOUTH
H. Miles, M.D.; Lawrence J. Nelson, Ph.D.;
CAROLINA; Harrison L. Peoples, Dr.;
Robert M. Nelson, M.D., Ph.D.; Linda Farber
Thomas C. Rowland, Jr., Dr.; Stanley C.
Post, B.S.N., M.A., J.D.; Howard B. Radest,
Baker, Jr., Dr.; Charles B. Hanna, Dr.;
Ph.D.; Sally Webb, M.D., Amicus Curiae.
Cotesworth P. Fishburne, Dr.; E. Conyers
O'Bryan, Dr.; Melvyn Berlinsky; Patricia No. 97–2512
|
T. Smith; M.J. Cooper; Herbert C. Granger;
Argued Jan. 22, 2002.
Robert C. Lake, Jr.; Phillip D. Sasser; Claudia |
W. Peoples; Carroll V. Bing, Jr., Dr., as Decided Oct. 17, 2002.
Trustees of the Medical University of South
Synopsis
Carolina in their official capacities; Reuben Obstetrics patients sued state hospital, state solicitors, city,
Greenberg; Charles Molony Condon; David city police chief, and individual medical personnel, alleging,
inter alia, that testing of their urine for evidence of cocaine
Schwacke; Shirley Brown, R.N.; Edgar O.
use for law enforcement purposes, pursuant to hospital policy,
Horger, III, M.D.; Victor Del Bene; John violated Fourth Amendment. The United States District Court
Sanders; William B. Pittard, M.D.; Roger for the District of South Carolina, C. Weston Houck, J.,
entered judgment on jury verdict in defendants' favor and
Newman, M.D.; Harold Bivens, M.D.;
denied patients' motion for judgment as a matter of law.
Melesia Henry, R.N., personally and in their Patients appealed. The United States Court of Appeals for
official capacities, Defendants–Appellees. the Fourth Circuit, 186 F.3d 469, affirmed. Patients petitioned
Center for Constitutional Rights; South for writ of certiorari, which was granted. The United States
Supreme Court, 532 U.S. 67, 121 S.Ct. 1281, reversed and
Carolina Medical Association; American Public remanded. The Court of Appeals, Wilkins, Circuit Judge,
Health Association; American Academy on held that: (1) testing of newborn's urine did not violate
Physician and Patient; Society of General mother's Fourth Amendment rights; (2) hospital's testing
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1

Ferguson v. City of Charleston, S.C., 308 F.3d 380 (2002)
of patients' urine samples for evidence of cocaine use was

not done for medical purposes; (3) hospital's consent forms [4] Federal Courts Taking case or question
were inadequate to establish patients' informed consent to from jury; judgment as a matter of law
searches of their urine for law enforcement purposes; (4) Court of Appeals may reverse denial of motion
only two of patients had knowledge of law-enforcement for judgment as a matter of law only if there
aspect of hospital's drug screening policy sufficient to permit can be but one reasonable conclusion as to the
determination that patients gave implied consent to search of verdict; if reasonable minds could differ, Court
urine for law enforcement purposes; and (5) patients did not of Appeals must affirm.
act voluntarily, in a constitutional sense, when they presented
themselves to hospital for treatment, precluding finding of 1 Case that cites this headnote
implied consent to searches under policy.
[5] Search, Seizure, and Arrest Blood,
Affirmed in part and reversed and remanded in part. breath, urine, saliva, or hair samples in general
Fourth Amendment extended at least to
Niemeyer, Circuit Judge, concurred in the judgment in part state hospital's taking and testing of patients'
and dissented in part and filed a separate opinion. urine for law enforcement purposes. U.S.C.A.
Const.Amend. 4.
3 Cases that cite this headnote

West Headnotes (30)
[6] Search, Seizure, and Arrest Drug testing

[1] Federal Courts Taking case or question
Mother did not have reasonable expectation of
from jury; judgment as a matter of law
privacy in her newborn child's urine, and thus
Court of Appeals reviews the denial of judgment
suffered no actionable violation of her Fourth
as a matter of law de novo.
Amendment rights when state hospital tested
child's urine to determine whether mother had
used cocaine for law enforcement purposes, even
[2] Federal Courts Summary judgment though mother may suffered damages as a result
On review of denial of motion for judgment of information obtained from urine test. U.S.C.A.
as a matter of law, Court of Appeals must Const.Amend. 4.
view the evidence in the light most favorable
to nonmoving party and draw all reasonable
inferences in their favor without weighing the [7] Search, Seizure, and Arrest Personal
evidence or assessing the witnesses' credibility. nature of rights; vicarious assertion
5 Cases that cite this headnote Fourth Amendment rights are personal rights
which, like some other constitutional rights,
may not be vicariously asserted. U.S.C.A.
[3] Federal Courts Taking case or question Const.Amend. 4.
from jury; judgment as a matter of law
On review of denial of judgment as a matter 1 Case that cites this headnote
of law, the question is whether a jury, viewing
the evidence in the light most favorable to the [8] Search, Seizure, and Arrest Expectation
nonmoving party, could have properly reached of privacy
the conclusion reached by the jury.
Generally, an expectation of privacy supporting
4 Cases that cite this headnote Fourth Amendment claim does not arise from
one's relationship to the person searched.
U.S.C.A. Const.Amend. 4.

[13] Search, Seizure, and Arrest Necessity of

showing voluntariness
[9] Federal Courts Need for further evidence,
findings, or conclusions Two competing concerns must be accommodated
in determining the meaning of a voluntary
Remand was required in action in which
consent to search: the legitimate need for such
obstetrics patients alleged that state hospital
searches and the equally important requirement
violated Fourth Amendment when, pursuant to
of assuring the absence of coercion. U.S.C.A.
hospital policy, it tested their urine for evidence
Const.Amend. 4.
of cocaine use for law enforcement purposes, so
as to permit district court to determine whether 3 Cases that cite this headnote
hospital and other defendants forfeited claim that
certain patient's urine was not tested until after
policy was discontinued, such that test was not [14] Search, Seizure, and Arrest What
search, and, if not, whether claim had merit constitutes voluntary consent
or whether search had occurred to which jury In considering the totality of the circumstances to
rationally could find patient had given informed determine whether consent to search was freely
consent. U.S.C.A. Const.Amend. 4. given, the factfinder must take into account the
characteristics of the person from whom consent
2 Cases that cite this headnote is sought, such as age, maturity, education,
and experience, and must consider the possibly
[10] Search, Seizure, and Arrest Validity; vulnerable subjective state of the person who
reasonableness consents. U.S.C.A. Const.Amend. 4.
Searches conducted without a warrant are per se

“unreasonable” under Fourth Amendment unless
a valid exception to the warrant requirement [15] Search, Seizure, and Arrest What
applies. U.S.C.A. Const.Amend. 4. constitutes voluntary consent
In addition to the characteristics of the
consenter, the factfinder evaluating voluntariness
[11] Search, Seizure, and Arrest Exception to of consent to search must also look to the
warrant and probable cause requirements circumstances of the request for consent.
Voluntary consent to a search is an exception
to Fourth Amendment warrant requirement.
5 Cases that cite this headnote In the context of obstetrics patients' Fourth
Amendment claims, state hospital's testing of
[12] Search, Seizure, and Arrest What patients' urine samples for evidence of cocaine
constitutes voluntary consent use was not done for medical purposes, given
absence of showing that such searches would
In determining whether consent to search
have been conducted in absence of hospital
was freely and voluntarily given, the
policy to screen certain pregnant patients'
factfinder must examine the totality of
urine samples to detect cocaine use for law
the circumstances surrounding the consent.
enforcement purposes. U.S.C.A. Const.Amend.
4.
1 Case that cites this headnote

Inasmuch as each taking and testing of obstetric Obstetrics patients did not have knowledge
patient's urine for evidence of cocaine use of law-enforcement aspects of state hospital
for law enforcement purposes, pursuant to policy providing for testing of urine of certain
state hospital policy, was separate search under pregnant patients to detect cocaine use for law
Fourth Amendment, instruction requiring jury to enforcement purposes, precluding finding that
consider each search individually to determine patients gave implied consent to such searches
whether patient gave informed consent to each under Fourth Amendment, given that, at the time
search was required in patients' action against of searches, letters explaining policy were not
hospital and related defendants for Fourth in use, public service announcements explaining
Amendment violations. U.S.C.A. Const.Amend. policy had not yet begun to air, and no evidence
4. showed that patients knew of policy. U.S.C.A.
Const.Amend. 4.
[18] Search, Seizure, and Arrest Particular [21] Search, Seizure, and Arrest Consent
words or conduct in general implied in law; airports and boarding searches
Neither state hospital's ambulatory consent form Evidence did not establish obstetrics patient's
nor its general consent form was adequate to knowledge of critical terms of state hospital
establish obstetrics patients' informed consent policy allowing for testing of certain pregnant
to hospital's taking and testing of their patients' urine to detect cocaine use for
urine for evidence of cocaine use for law law enforcement purposes, so as to permit
enforcement purposes, so as to preclude liability determination that patient gave implied consent
of hospital and related entities for alleged to such a search of her urine, even though
Fourth Amendment violations arising from patient, when confronted with positive test,
such searches, inasmuch as forms indicated told nurse that she had given permission for
that patients were consenting to testing for urine screen because she thought she was clean
drugs “if deemed advisable by or necessary and even though patient was tested following
in the professional judgment of the physician another patient's “well-publicized” arrest based
or surgeon,” or “if deemed advisable by on positive urine test; there was no evidence
my physician,” and neither this language nor that patient knew of other arrest, and patient's
anything else in forms suggested to patients that awareness that her urine would be tested for
their urine might be searched for evidence of cocaine did not establish knowledge that test
criminal activity for law enforcement purposes. results would be reported for law enforcement
U.S.C.A. Const.Amend. 4. purposes. U.S.C.A. Const.Amend. 4.

[22] Search, Seizure, and Arrest Consent
[19] Search, Seizure, and Arrest Implied or implied in law; airports and boarding searches
express consent in general Prior arrest of obstetrics patient that was based
Courts generally are reluctant to infer consent to on positive results of test in which state hospital,
search from mere notice followed by voluntary pursuant to its policy, screened patient's urine
conduct. U.S.C.A. Const.Amend. 4. for cocaine use was sufficient to apprise patient
that subsequent urine drug screen performed
1 Case that cites this headnote by hospital was being conducted for law
enforcement purposes, as required for finding,
[20] Search, Seizure, and Arrest Particular under Fourth Amendment, that patient gave
searches implied consent to such a search of her urine.

enforcement purposes, text of letter, which

suggested that law enforcement authorities
[23] Search, Seizure, and Arrest Consent would become involved only after continued
implied in law; airports and boarding searches drug-use problems, negated any such reading
of letter, and there was no evidence that
Obstetrics patient had knowledge of critical
patient read letter or derived therefrom necessary
aspects of state hospital policy permitting testing
understanding of hospital's policy. U.S.C.A.
of pregnant patients' urine to detect cocaine use
Const.Amend. 4.
for law enforcement purposes, as required for
finding that patient gave implied consent to such 2 Cases that cite this headnote
searches of her urine, given patient's testimony
that, at the time of her urine tests, she was aware
that hospital was testing pregnant women for [26] Search, Seizure, and Arrest Drug testing
illegal drugs and that there was policy regarding Obstetrics patient who, pursuant to state hospital
arresting women who used illegal drugs during policy allowing for testing of pregnant patients'
pregnancy. U.S.C.A. Const.Amend. 4. urine to detect cocaine use for law enforcement
purposes, was subjected to second such search
after having previously tested positive for
[24] Search, Seizure, and Arrest Consent cocaine use, viewing video on substance abuse,
implied in law; airports and boarding searches and signing letter explaining hospital's policy,
did not have knowledge of critical aspects of
Patient who delivered baby at state hospital
policy such that she could be deemed to have
without having received prenatal care did not
given implied consent to search of her urine for
have knowledge of hospital policy allowing
purposes of detecting criminal activity, inasmuch
for testing of certain pregnant patients' urine
as video contained no discussion of policy,
to detect cocaine use for law enforcement
and although reader could infer from letter
purposes, precluding determination that patient
that positive drug screens would be reported
gave implied consent to such a search of
to law enforcement authorities, letter did not
her urine under Fourth Amendment. U.S.C.A.
inform reader that drug screen prompting letter
Const.Amend. 4.
was search conducted in conjunction with law
enforcement personnel or that any subsequent
drug screen would be done for law enforcement
[25] Search, Seizure, and Arrest Particular
purposes. U.S.C.A. Const.Amend. 4.
searches
Obstetrics patient, who requested transfer to 1 Case that cites this headnote
state hospital after viewing public service
announcement (PSA) informing viewers that
cocaine was harmful to fetuses and that hospital
implied in law; airports and boarding searches
would provide help to pregnant women who
Obstetrics patient who saw public service
used cocaine, did not have knowledge of critical
announcement (PSA) informing viewers that
aspects of hospital policy allowing for testing
cocaine was harmful to fetuses and that
of pregnant patients' urine to detect cocaine use
state hospital would provide help to pregnant
and reporting of positive test results for law
women using cocaine and who reviewed letter
enforcement purposes, precluding determination
explaining hospital's policy allowing for testing
that patient gave informed consent to searches of
of pregnant patients' urine to detect cocaine
her urine, even though patient was purportedly
use for law enforcement purposes did not have
given letter explaining policy further; neither
knowledge of critical aspects of policy such that
PSA nor letter indicated that “help” provided
she could be deemed to have given implied
by hospital included searching urine samples
consent to search of her urine for purposes of
for evidence of criminal activity for law

detecting criminal activity, inasmuch as PSA hospital, which failed to show that treatment
did not indicate that hospital's “help” included would not have been denied had patients refused
searching urine samples for evidence of criminal to provide urine sample. U.S.C.A. Const.Amend.
activity for law enforcement purposes, and letter 4.
did not inform reader that drug screen was search
conducted in conjunction with law enforcement
personnel or that any subsequent drug screen [30] Search, Seizure, and Arrest Physical or
would be done for law enforcement purposes. mental condition
Physical distress does not invariably vitiate
3 Cases that cite this headnote voluntary consent to search. U.S.C.A.
Const.Amend. 4.
[28] Search, Seizure, and Arrest Consent 3 Cases that cite this headnote
Obstetric patient who requested prenatal care at
clinic after learning of its policy of screening
pregnant women's urine to detect cocaine use Attorneys and Law Firms
did not understand aspect of policy that, in
conducting drug screens, clinic was searching *385 ARGUED: Priscilla Joyce Smith, Center for
for evidence of criminal activity for law Reproductive Law and Policy, New *386 York, New
enforcement purposes, as required for patient to York, for Appellants. Robert Holmes Hood, Hood Law
be deemed to have given implied consent to such Firm, L.L.C., Charleston, South Carolina, for Appellees. ON
a search. U.S.C.A. Const.Amend. 4. BRIEF: Julie Rikelman, Center for Reproductive Law and
Policy, New York, New York; Susan K. Dunn, Charleston,
South Carolina; David Rudovsky, Kairys, Rudovsky, Epstein,
Messing & Rau, Philadelphia, Pennsylvania; Lynn Paltrow,
National Advocates for Pregnant Women, New York,
New York; Seth Kreimer, Philadelphia, Pennsylvania;
Obstetrics patients whose urine was screened for Susan Frietsche, David Cohen, Women's Law Project,
cocaine use, pursuant to state hospital policy Philadelphia, Pennsylvania, for Appellants. Barbara W.
allowing for testing of pregnant patients' urine Showers, Mary Agnes Hood Craig, Deborah Harrison
to detect drug use for law enforcement purposes, Sheffield, Hood Law Firm, L.L.C., Charleston, South
did not act voluntarily, in a constitutional sense, Carolina, for Appellees. Kimani Paul Emile, Barbara
when they presented themselves to hospital Olshansky, Center for Constitutional Rights, New York, New
for treatment, precluding determination under York, for Amicus Curiae Center. Daniel N. Abrahamson, San
Fourth Amendment that patients gave implied Francisco, California, for Amici Curiae Medical Association,
consent to urine tests conducted pursuant to et al.
policy, given that tests were conducted on
patients who were in active labor or who had Before WILKINS and NIEMEYER, Circuit Judges, and
given birth immediately prior to search, on CATHERINE C. BLAKE, United States District Judge for the
patients who were experiencing preterm labor, District of Maryland, sitting by designation.
and on patients who were seriously ill and
in excruciating pain, that hospital and related
Affirmed in part and reversed and remanded in part by
defendants did not show that patients had
published opinion. Judge WILKINS wrote the majority
sufficient mental faculties and awareness to
opinion, in which Judge BLAKE joined. Judge NIEMEYER
allow them to give informed consent, and that, as
wrote an opinion concurring in the judgment and dissenting
patients insured by Medicaid and, in some cases,
in part.
as patients experiencing high-risk pregnancies,
patients had no choice but to seek services at

F.3d 768, 775 (4th Cir.1998). Viewed in light of that standard,

the evidence at trial demonstrated the following facts.
OPINION
WILKINS, Circuit Judge.

A. FACTS REGARDING THE POLICY
In 1989, the Medical University of South Carolina (MUSC)
In the fall of 1989, MUSC instituted a policy providing
established, in cooperation with local law enforcement
for the testing of the urine of pregnant women for cocaine
officials, a policy (the Policy) intended to reduce cocaine use
use and for the reporting, under certain circumstances, of
by pregnant women. As implemented, the Policy involved the
test results to law enforcement officials. The Policy was
testing of patients' urine to gather evidence of cocaine use
implemented both at the MUSC hospital and at the MUSC
and the disclosure of evidence so obtained to law enforcement
authorities. Appellants are ten former obstetrical patients at clinic.2 The impetus for the Policy came from Nurse Shirley
MUSC whose urine was tested pursuant to the Policy; they Brown, a case manager in the obstetrics department at
brought this action claiming, inter alia, that the testing of the MUSC hospital. In the previous year, personnel in the
their urine for cocaine constituted a warrantless, unreasonable obstetrics department had noted an increase in cocaine use
by pregnant women. Although these women were referred
search in violation of the Fourth Amendment.1
to substance abuse treatment, such referrals were ineffective
in stemming the tide of “cocaine babies” being born at the
Following trial, the district court submitted to the jury the
MUSC hospital. After hearing a report regarding a program in
question of whether Appellants had consented to the urine
place elsewhere in South Carolina, which involved bringing
drug screens. The jury found in favor of Appellees. We
charges of child abuse against women who used cocaine
now must decide whether the district court erred in denying
during pregnancy, Brown spoke with an MUSC official, who
Appellants' subsequent motion for judgment as a matter of
in turn contacted the Ninth Circuit Solicitor (chief prosecuting
law. For the reasons set forth below, we hold that no rational
attorney) concerning the development of a program for
jury could conclude, from the evidence presented at trial,
application at MUSC to detect and deter cocaine use by
that Appellants gave their informed consent to the taking
and testing of their urine for evidence of criminal activity pregnant women.3
for law enforcement purposes. Our holding encompasses two
determinations: first, that as to most of the Appellants, the Eventually, a task force was formed that included Nurse
record evidence does not support a finding that Appellants Brown, the Solicitor, the Chief of the Charleston City Police
knew that their urine was being analyzed for evidence of Department (CCPD), representatives from the Charleston
criminal activity for law enforcement purposes; and second, County Substance Abuse Commission (CCSAC), and doctors
that the record evidence does not support a finding that from various departments at MUSC involved in perinatal
Appellants, for Fourth Amendment purposes, voluntarily care. By mid-October 1989, these meetings had produced
submitted to the searches. Excluded from our holding is Ellen the initial version of the Policy at issue in this litigation.
Knight, who, as explained *387 below, suffered no Fourth According to the terms of the initial Policy, MUSC maternity
Amendment violation. Additionally, we remand for further patients were to be tested if any of nine criteria was met.4
proceedings as to Darlene Nicholson, who may not have been The initial Policy provided that if a patient had not yet
searched pursuant to the Policy. In sum, we affirm in part and delivered her baby, she was to be given a referral to CCSAC
reverse and remand in part. and counseling regarding the harmful effects of drug use
during pregnancy. Upon a second *388 positive test or
a failure to comply with treatment obligations, the patient
I. would be arrested.5 If a patient tested positive for cocaine
upon delivering a child, she was to be arrested “as soon as
Because we are reviewing the denial of Appellants' motion medically possible.” J.A. 1448.
for judgment as a matter of law, we must view the evidence in
the light most favorable to Appellees and draw all reasonable In early 1990, the Policy was amended to focus more on
inferences in their favor without weighing the evidence or patient education. To that end, two of the doctors involved
assessing the witnesses' credibility. See Sales v. Grant, 158 with the Policy drafted a letter to be given to all women who

received prenatal care at the MUSC clinic. Known as the

“To Our Patients” letter, it warned patients of the dangers of The Policy as revised in 1990 also included a greater
prenatal drug use and further stated: “amnesty” component. Under the revised Policy, all pregnant
women who tested positive for cocaine, including those
If you are using drugs, please stop! If you are unable to stop, whose first positive test occurred in conjunction with
please let your doctor know. We want to help mothers get the delivery of their children, were referred to substance
off drugs for the benefit of both you and your baby. We will abuse treatment. A patient was not arrested unless she
provide you counseling about the harms of drug abuse and tested positive a second time or failed to fulfill treatment
will make arrangements for you to be seen at the Substance requirements. This aspect of the Policy was explained in a
Abuse Clinic. We realize that drug abuse is a very difficult letter from the Solicitor (“the Solicitor's letter”), which was
problem and we will do all that we can to help you. given to patients after a positive urine drug screen. In the case
of a woman who tested positive during prenatal care, the letter
If, however, we continue to detect evidence of drug abuse
provided:
or a failure to follow recommended treatment, we will take
action to protect your unborn child. The Charleston Police, During your recent examination you tested positive for
the solicitor's office, and the Protective Service Division drugs. You have been counseled about the harmful effects
of [the Department of Social Services] are also committed of drugs to you and your baby and referred to Substance
to the protection of unborn and newborn children from the Abuse and Pre Natal Care by the Medical University. By
harms of illegal drug abuse. these referrals you are being afforded an opportunity to
rehabilitate yourself for the good of yourself and your baby.
We hope that you can understand the tragedy which is
Please understand that by using drugs during pregnancy
being caused by the continued use of illegal drugs during
you are risking death or at least severe long-term harmful
pregnancy. This policy of providing warning, counseling
effects to your baby. If you fail to attend Substance Abuse
and treatment for pregnant women using illegal drugs is
and PreNatal Care you will be arrested by Charleston City
the best way for us to help. For those women who fail this
Police and prosecuted by the Office of Solicitor.
treatment, we must ask for help to protect the life and health
J.A. 1432 (first emphasis added). A similar letter was given
of our most innocent unborn children.
to women who tested positive for cocaine use upon the birth
Id. at 1437.6 Additionally, patients were shown a video of a baby; this letter informed the patient that a referral had
regarding the dangers of drug abuse during pregnancy. been made to the Department of Social Services in addition
to the CCSAC. This version of the letter advised women
In an effort to publicize the Policy, the Solicitor recorded a that they would be arrested and prosecuted “[i]f you fail to
public service announcement (PSA) that was aired on local complete Substance Abuse Counselling [sic], fail to cooperate
television stations for several months beginning in March with the Department of Social Services ..., or if you fail to
1990. The text of the PSA was as follows: maintain clean urine specimens during your Substance Abuse
When you're pregnant, just one line of cocaine, a single rehabilitation.”7 Id. at 1433. Women were requested to sign
hit of crack, rushes to your baby's body and brain. Within the Solicitor's letter as a means of acknowledging receipt, but
minutes your body can be jolted into premature labor a signature on the letter did not signify agreement to anything.
risking a still developing child to stroke, even death. And
not only will you live with the guilt, you could be arrested. In addition to the documents related to the Policy, women
receiving perinatal care at MUSC were generally asked to
But this is a tragedy you can prevent. If you have a sign one or both of two consent-to-treatment forms. The first
problem with drugs talk to your doctor or call MUSC at form (“the ambulatory consent form”) was signed by women
792–6437. Trained counselors will guide you through drug who received prenatal care at the MUSC clinic. This form
rehabilitation and advise you about good prenatal care. And provided, in pertinent part:
if you stay with the program you will not be arrested or
prosecuted. The intention hereof is to grant full authority to such
physicians and surgeons and the Medical University
*389 Wake up from the nightmare. Think about your baby Clinics ... to administer and perform all and singular any
first. drugs, treatment, tests or diagnostic procedures.... I further
Supp. J.A. 1. consent to the testing for drugs if deemed advisable by or

necessary in the professional judgement of the physician or Powell initially received prenatal care from a physician in
surgeon. McClellanville, who referred her to the MUSC clinic because
of her high blood pressure. Powell signed an ambulatory
... consent form on May 24, 1989. Powell attended her prenatal
Id. at 1443 (emphasis added). Women admitted to the hospital appointments until late September, when Hurricane Hugo
signed a consent form (“the general consent form”) that struck the Charleston area. On October 13, Powell went
included the following language: into labor and was transported to the MUSC hospital by
ambulance. A general consent form was signed by Powell's
I acknowledge that I am suffering from a condition
mother. Powell delivered her baby shortly after arriving at the
requiring Medical/Hospital care and thereby voluntarily
hospital; both Powell's and the infant's urine tested positive
consent to such Medical/Hospital care encompassing
for cocaine. Powell was subsequently arrested, but she was
diagnostic procedures and medical treatment by my
not prosecuted.
physician, assistants or designees, as may be necessary
in his or her judgment.... I further consent to *390 the
testing of drugs if deemed advisable by my physician.
Id. at 1442 (emphasis added). These forms were the same 3. Ellen Knight
forms signed by every patient of the MUSC clinic and
hospital; they were not altered in any way to account for the During her pregnancy, Knight received prenatal care at the
Policy. MUSC clinic. In connection with this care, Knight signed
an ambulatory consent form on October 11, 1989. On the
morning of November 6, 1989, Knight was admitted to the
MUSC hospital in labor and subsequently delivered her baby.
B. FACTS REGARDING INDIVIDUAL APPELLANTS8 The record does not contain a general consent form signed in
connection with this admission.
1. Lori Griffin
Knight's baby's urine tested positive for cocaine; the record
During the initial stages of her pregnancy, Griffin received does not indicate that Knight's urine was tested. Based
prenatal care at a clinic in McClellanville, South Carolina; on the positive test from her infant, Knight was arrested
that clinic referred her to the MUSC clinic. In connection on November 8. The charges were dismissed after she
with her prenatal care at the MUSC clinic, Griffin signed an successfully completed a drug treatment program.
ambulatory consent form on June 28, 1989. The following
day, her urine tested positive for cocaine. During her
testimony at trial, Griffin denied being informed that she had 4. Laverne Singleton
tested positive.
Singleton delivered two children at MUSC during the
On October 7, Griffin was admitted to the MUSC hospital in existence of the Policy. During the first of these pregnancies,
pre-mature labor. She did not sign a general consent form in in 1989, Singleton received no prenatal care. She delivered
connection with this admission. See id. at 1523. During this a son on November 9 at the MUSC hospital after signing
admission, Griffin's urine again tested positive for cocaine. a general *391 consent form upon her admission to the
Griffin was arrested on October 10, just as she was released hospital. Singleton was in active labor when she signed the
from the hospital. She remained incarcerated for the next three form and delivered her baby shortly thereafter. At that time,
weeks, until she delivered her baby on October 26. her urine tested positive for cocaine. Singleton told Nurse
Brown that she consented to a urine drug screen “because
In January 1990, Griffin was indicted on one count of she thought she was clean.” Id. at 1862 (internal quotation
possession of cocaine and one count of distribution of cocaine marks omitted). Singleton was arrested on November 10. In
to a person under the age of 18. She was not prosecuted. July 1990, she was charged with child neglect; she was not
prosecuted.
In November 1990, Singleton delivered another baby, this

2. Sandra Powell
time in the ambulance en route to the MUSC hospital. She

later signed a general consent form. In connection with

her post-partum care, Singleton again tested positive for
7. Crystal Ferguson
cocaine. As an alternative to arrest, Singleton voluntarily
admitted herself to inpatient treatment at the MUSC Institute Ferguson began receiving prenatal care at the North
of Psychiatry (IOP). Charleston Health Department in early or mid 1991. At some
point prior to or during her pregnancy, Ferguson saw the PSA.
At her request, she was *392 referred to the MUSC clinic
5. Pamela Pear after admitting to Health Department personnel that she was
using cocaine. Ferguson signed an ambulatory consent form
In the summer of 1990, when she was six or seven months in connection with her first visit to the clinic on June 19,
pregnant, Pear was referred to the MUSC clinic because she 1991. When she signed the form, Ferguson was experiencing
was at high risk for preterm labor. Pear signed an ambulatory pre-term labor. At that visit, Ferguson tested positive for
consent form for care at the clinic on July 13, 1990. At cocaine. She thereafter viewed the video on substance abuse
that visit, her urine tested positive for cocaine. Following and signed the Solicitor's letter. Ferguson was encouraged to
the positive test, Pear reviewed and signed the Solicitor's enter inpatient substance abuse treatment but refused because
letter, reviewed the “To Our Patients” letter,9 and watched the she lacked adequate child care.
video on substance abuse during pregnancy. She was provided
with an appointment for substance abuse counseling. In late On August 4, Ferguson underwent an emergency cesarian
August, Pear was admitted to the MUSC hospital in preterm section based on her doctor's suspicion, later confirmed, that
labor and again tested positive for cocaine. Pear signed a the placenta was separating from the uterine wall. Ferguson
general consent form in connection with this admission. Pear signed a consent form specific to the surgery, but the record
was arrested upon her discharge on September 1 and spent the does not include a general consent form related to Ferguson's
remainder of her pregnancy in jail. She delivered her child on admission to the hospital. Ferguson again tested positive
September 14. Although Pear was charged with distributing for cocaine. Although the terms of the Policy provided that
cocaine to a person under the age of 18, the charge was Ferguson was to be arrested at that time, she was allowed to go
subsequently nolle prossed. home to attend to the details of her mother's funeral. Ferguson
was arrested on August 19 and charged with distributing drugs
During her trial testimony, Pear acknowledged that she had to a person under the age of 18; this charge was based on
been aware, during her pregnancy, that MUSC was testing the positive urine drug screen on June 20. The charge was
women for drug use and that those who tested positive were dismissed in 1993.
arrested.
8. Theresa Joseph
6. Paula Hale
Joseph saw the PSA while she was pregnant in 1991. Joseph
Hale delivered a baby at the MUSC hospital on December 13, did not seek prenatal care because she was using cocaine and
1990, having received no prenatal care during her pregnancy. heroin; in view of the PSA, she was afraid of being arrested.
The record does not contain a general consent form signed in On June 6, when she was approximately 15 weeks pregnant,
connection with this admission. Both Hale and the baby tested Joseph was admitted to the MUSC hospital for treatment of a
positive for cocaine. Hale was informed of the hazards of drug severe infection in her right foot. Joseph was in dire need of
use and signed the Solicitor's letter. She was not arrested at medical treatment; hospital employees warned her that failure
that time, but a warrant for Hale's arrest was issued in March to complete treatment could result in amputation of her foot
1991, and Hale was arrested in June of that year. Given the or even death. The record does not include a general consent
terms of the Policy, we assume that Hale's arrest was triggered form signed by Joseph in connection with this admission.
by her failure to comply with treatment obligations. As with Joseph's urine tested positive for cocaine. Nursing notes from
the other Appellants, however, Hale was not prosecuted. Joseph's medical records indicate that a transfer to the IOP
was contemplated and that Joseph was to be shown the video
and the Solicitor's letter prior to this transfer. However, Joseph
left the hospital against medical advice on June 7.

for cocaine. During a subsequent prenatal visit on December

Joseph returned to the hospital on June 14 because of 17, she was informed that she was dehydrated and needed
excruciating pain in her foot; at that time, she signed a general to be admitted to the hospital. Nicholson signed a general
consent form. She again tested positive for cocaine. Joseph consent form in connection with this admission. During
was shown the video, given the Solicitor's letter, and advised that admission, Nicholson's urine again tested positive for
that she had appointments for prenatal care and substance cocaine. At that time, she was given a choice between
abuse counseling. Joseph was informed that failure to attend voluntary and involuntary commitment to the IOP. Nicholson
either of these appointments could result in her arrest. voluntarily admitted herself to the IOP for inpatient drug
treatment and remained there until January 7, 1994.
When Joseph was 32 weeks pregnant, she was admitted to
the MUSC hospital for performance of an emergency cesarian After her release, Nicholson continued to use drugs. On
section, and she signed a general consent form. She again February 7, she was involuntarily committed to the IOP by
tested positive for cocaine and was arrested on October 23, the CCSAC. She was released two days later, on February 9.
the day she was discharged from the hospital. As with the Less than a week later, Nicholson readmitted herself to the
other Appellants, Joseph was not prosecuted. IOP for another 30 day course of substance abuse treatment.
On February 21, Nicholson was temporarily released from the
IOP and admitted to the MUSC hospital for the birth of her
child; after two days of recovery, she was readmitted to the
9. Patricia Williams
IOP and completed her course of treatment.
Williams began receiving prenatal care at the North
Charleston Health Department in December 1991, when
she was five or six months pregnant. At her request, she C. PROCEDURAL HISTORY
was transferred to the MUSC clinic for assistance with her
cocaine problem. Williams requested the transfer because Appellants filed this action on October 5, 1993, claiming,
she had heard of the Policy and understood that MUSC was inter alia, that the performance of the urine drug screens
trying to help pregnant women with their drug problems. violated their Fourth Amendment right to be free from
Williams signed an ambulatory consent form at her first visit unreasonable searches and seizures. In response, Appellees
to the MUSC clinic *393 on January 15, 1992. She tested contended that the searches were justified by the special needs
positive for cocaine at that time, whereupon she signed the doctrine, see Nat'l Treasury Employees Union v. Von Raab,
Solicitor's letter and watched the video. She also was referred 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685
to substance abuse counseling. Williams tested positive for (1989), or, alternatively, that Appellants had consented to the
cocaine several more times during her pregnancy but was not searches.
arrested (the record does not indicate why). She delivered her
baby at the MUSC hospital on March 10, and again tested The district court rejected the special needs theory,
positive for cocaine. The record does not contain a general concluding that the involvement of law enforcement
consent form signed by Williams in connection with this personnel in the formulation of the Policy precluded the
admission. She was arrested on March 12 and was charged application of the special needs doctrine. Following trial, the
with distributing cocaine to a person under the age of 18 based district court submitted the Fourth Amendment claim to the
on one incident of prenatal cocaine use. Williams was not jury. The court instructed the jury that it should find for
prosecuted, apparently because she successfully completed an Appellees if it concluded, after considering the totality of the
inpatient drug treatment program. circumstances, that Appellants had consented to the searches.
However, the court also instructed the jury that neither the
general consent form nor the ambulatory consent form was
adequate to establish voluntary consent to the searches.
10. Darlene Nicholson
During her pregnancy in the latter part of 1993, Nicholson The jury found in favor of Appellees. Appellants moved for
received prenatal care at the MUSC clinic. On October 20, judgment as a matter of law, maintaining that a rational jury
Nicholson signed an ambulatory consent form in connection could not find, from the evidence presented, that any of the
with her prenatal care; at this visit, her urine tested positive Appellants had consented to the searches. The district court

denied the motion, stating that “[t]here is evidence in the

record from which the jury *394 could reasonably conclude
1.
that the plaintiff [s] consented to these searches.” Id. at 2728.
However, the district court did not specify what evidence [5] At the outset, we must define with some specificity the
supported the verdict. Fourth Amendment event with which we are concerned. One
could argue that the reach of the Fourth Amendment extends
On appeal, a majority of this panel affirmed on the basis only to the process by which the urine sample was obtained
that the searches were sustainable under the special needs and that any subsequent handling or testing of that sample
doctrine. See Ferguson v. City of Charleston, 186 F.3d 469, does not have Fourth Amendment ramifications. This is the
476–79 (4th Cir.1999) (Ferguson I ); cf. id. at 486–89 position taken by Justice Scalia in his dissent in Ferguson
(Blake, J., dissenting). This ruling was subsequently reversed II. See Ferguson II, 532 U.S. at 92, 121 S.Ct. 1281 (Scalia,
by the Supreme Court, which concluded that because “the J., dissenting) (“There is only one act that could conceivably
immediate objective of the searches was to generate evidence be regarded as a search of petitioners in the present case:
for law enforcement purposes,” the special needs doctrine
the taking of the urine sample.”).10 At the other end of the
did not apply. Ferguson v. City of Charleston, 532 U.S. 67,
spectrum, one may consider all law enforcement activities
83, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (Ferguson II
related to the urine sample—i.e., the taking of the sample,
). The Court therefore vacated our decision and remanded
the testing of it for evidence of drug use, and the reporting
for consideration of whether there was sufficient evidence to
of the results to law enforcement officials—as covered by
support the finding of consent by the jury. See id. at 86, 121
the Fourth Amendment. This seems to be the view taken by
S.Ct. 1281. Specifically, the Court instructed us to determine
the Supreme Court, see id. at 77, 121 S.Ct. 1281, and it is
whether Appellants gave their “informed consent” to the
the way the complaint *395 was framed by Appellants and
searches. Id. at 76, 121 S.Ct. 1281.
presented to the jury. In the middle is the position that the
Fourth Amendment event at issue comprises the taking and
testing of the urine but not the reporting of results to law
II. enforcement officers.
[1] [2] [3] [4] We review the denial of judgment as aFor purposes of resolving this appeal, it is sufficient to
matter of law de novo. See Konkel v. Bob Evans Farms Inc., reject the first possibility—that the only Fourth Amendment
165 F.3d 275, 279 (4th Cir.1999). In so doing, we must view event was the obtaining of the sample. In the special needs
the evidence in the light most favorable to Appellees and context, where the Court has most often addressed the
draw all reasonable inferences in their favor without weighing constitutional implications of urine drug screens, the Court
the evidence or assessing the witnesses' credibility. See Sales, has uniformly addressed the constitutionality of the taking of
158 F.3d at 775. “The question is whether a jury, viewing a urine sample and the testing of that sample for evidence
the evidence in the light most favorable to [Appellees], could
of drug use.11 See, e.g., Vernonia Sch. Dist. 47J v. Acton,
have properly reached the conclusion reached by this jury.”
515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995);
Benesh v. Amphenol Corp. (In re Wildewood Litig.), 52 F.3d
Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 617, 109
499, 502 (4th Cir.1995). We may reverse only if “there can
S.Ct. 1402, 103 L.Ed.2d 639 (1989). Because there was,
be but one reasonable conclusion as to the verdict,” Anderson
as we explain below, insufficient evidence from which a
v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91
rational jury could conclude that any Appellant (excluding
L.Ed.2d 202 (1986); if reasonable minds could differ, we must
Ellen Knight and Darlene Nicholson, discussed infra Part
affirm, see Sales, 158 F.3d at 775.
II.A.2) validly consented to the taking and testing of her
urine for law enforcement, as opposed to medical, purposes,
we do not consider whether the disclosure of test results
A. to law enforcement authorities also implicated the Fourth
Amendment.
Before considering the merits of the ruling of the district
court, it is necessary to consider some preliminary matters.

acting in conjunction with law enforcement authorities. It is

not clear to us whether Appellees made this assertion before
2.
the district court; if they did not, the argument is forfeited.
Additionally, we must address Appellees' arguments that two See Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655,
of the Appellants do not have any claim under the Fourth 665 (4th Cir.1993). If, however, the question was raised by
Amendment. These Appellants are Ellen Knight, who was Appellees but not resolved by the district court, the court must
arrested based on a search of her newborn's urine, and Darlene address the issue before allowing Nicholson to seek damages.
Nicholson, whose urine was tested, according to Appellees, Therefore, we remand for the district court to determine (1)
after the Policy had been suspended. whether Appellees' claim that Nicholson was not searched
under the Policy was forfeited; (2) if not, whether Appellees'
assertion is correct; and (3) if not, whether a rational jury
could find that Nicholson gave her informed consent to the
a. Ellen Knight search. If it reaches the last question, the district court should
be guided in its determination by the reasoning of this opinion.
[6] As noted in the statement of facts, Knight herself was
Finally, if the district court determines that Nicholson does
never searched pursuant to the Policy; rather, a search was
have a Fourth Amendment claim and that the finding of
conducted on the urine of her newborn child.12 Appellees
consent by the jury is not supported by the evidence presented
assert that because Knight did not have a reasonable
at trial, a jury should be allowed to consider Nicholson's claim
expectation of privacy in her child's urine, she lacks standing
for damages.
to claim a violation of the Fourth Amendment. See Rakas
v. Illinois, 439 U.S. 128, 139–40, 99 S.Ct. 421, 58 L.Ed.2d
387 (1978) (explaining that term “standing” refers, in Fourth
Amendment context, to question of whether party's own 3.
expectation of privacy has been infringed).
Also before proceeding to the merits, it will be helpful to note
two issues with which we are not concerned. First, this appeal
[7] [8] We agree with Appellees that Knight suffered
does not turn on whether any Appellant was prosecuted or
no violation of her Fourth Amendment rights. “Fourth
on whether Appellants were arrested only after a second
Amendment rights are personal rights which, like some other
(or subsequent) positive test. While these questions might
constitutional rights, may not be vicariously asserted.”13 be relevant to Appellants' damages, the consent question
Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, addresses only the search—i.e., the taking and testing of
22 L.Ed.2d 176 (1969); see United States v. Taketa, 923 F.2d Appellants' urine for law enforcement purposes—not any
665, 670 (9th Cir.1991) (noting that “the Supreme Court events that followed from the search.
[has] explicitly rejected concepts of ‘vicarious' or ‘target’
standing to assert fourth amendment rights”). We are aware This case is also not about the motives of those involved.
of no decision holding, or even suggesting, that a mother has There can be little doubt from the record that the creation and
a reasonable expectation of privacy in her newborn child's implementation of the Policy were motivated by the sincere
bodily fluids. Indeed, such a holding would conflict with the desire of all involved to help pregnant women and their
general rule that an expectation *396 of privacy does not babies. Our ruling is in no way an indication that the MUSC
arise from one's relationship to the person searched. See 5 personnel responsible for the Policy engaged in purposefully
Wayne R. LaFave, Search and Seizure § 11.3(i), at 223–24 wrongful conduct. Rather, our ruling concerns only a question
(3d ed.1996). Accordingly, we affirm as to Knight. of constitutional procedure: whether Appellants gave their
informed consent to be searched, i.e., whether Appellants
gave their informed consent to the taking and testing of their
b. Darlene Nicholson urine for law enforcement purposes.
[9] Nicholson's urine was tested for cocaine in October and

December 1993. Appellees assert that the Policy had been
B.
discontinued by this time, and thus any such test was not
a search because it was not performed by MUSC personnel

[10] [11] [12] [13] It is to that question that we now turn.those patients, they have a special obligation to make sure
The Fourth Amendment prohibits unreasonable searches, see that the patients are fully informed about their constitutional
U.S. Const. amend. IV, and searches conducted without a rights.” Id. at 85, 121 S.Ct. 1281 (citing Miranda v. Arizona,
warrant are per se unreasonable unless a valid exception to the 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
warrant requirement applies, see Schneckloth v. Bustamonte, by comparison); see id. at 78, 121 S.Ct. 1281 (noting
412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). that in special needs cases involving urine drug screens,
Voluntary consent to a search is such an exception. See id. “there was no misunderstanding about the purpose of the
In determining whether consent to search was freely and test”); id. at 78 n. 13, 121 S.Ct. 1281 (stating that nothing
voluntarily given, the factfinder must examine the totality in mandatory reporting laws “would ... lead a patient to
of the circumstances surrounding the consent. See id. at anticipate that hospital staff would intentionally set out
227, 93 S.Ct. 2041. “[T]wo competing concerns must be to obtain incriminating evidence ... for law enforcement
accommodated in determining the meaning of a ‘voluntary’ purposes”). Thus, the Court made abundantly clear in
consent—the legitimate need for such searches and the Ferguson II that any finding of informed consent must rest
equally *397 important requirement of assuring the absence on a determination that Appellants had knowledge, from
of coercion.” Id. some source, that no medical purpose supported the testing
of their urine for cocaine; further, Appellants must have
[14] In considering the totality of the circumstances, the understood that the tests were being conducted for the law
factfinder must take into account the characteristics of the enforcement purpose of obtaining incriminating evidence.
person from whom consent is sought, such as age, maturity, Phrased somewhat differently, critical to the question of
education, and experience. See United States v. Lattimore, whether Appellants voluntarily consented to the searches
87 F.3d 647, 650 (4th Cir.1996) (en banc). Of particular is the antecedent question of whether they understood that
relevance here, the factfinder must consider “the possibly the request was not being made by medical personnel for
vulnerable subjective state of the person who consents.” medical purposes, but rather by agents of law enforcement for
Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041. purposes of crime detection.14 See *398 Gouled v. United
States, 255 U.S. 298, 305–06, 41 S.Ct. 261, 65 L.Ed. 647
[15] In addition to the characteristics of the consenter, (1921) (holding that suspect did not consent to search of his
the factfinder must also look to the circumstances of the office by granting admission to friend who claimed to be
request for consent. See Lattimore, 87 F.3d at 650. Indeed, making social call but in fact, unbeknownst to suspect, was a
the remand by the Supreme Court in Ferguson II, requiring government agent).
us to determine whether Appellants gave their informed
consent to the searches, rests upon the particular factual [16] Appellees assert that the tests were, in fact, done for
circumstances of this case. Simply put, the circumstances of medical purposes. Insofar as the intent of the Policy was to
the encounter between Appellants and those conducting the provide medical assistance to the women and their unborn and
searches were unusual. In the vast majority of cases, consent newly born children, this may be an accurate statement. In the
to search is requested by one known to the suspect to be a context of Appellants' Fourth Amendment claim, however, to
law enforcement officer. Here, in contrast, any request for say that the searches were motivated by medical purposes is
consent was made by medical personnel acting (unknown to to say that the collection and testing of the urine was done
Appellants) as agents of law enforcement. independently of the Policy. We emphasize that there was no
evidence introduced into this record to support the conclusion
In remanding for further consideration of the consent that any of the searches here would have been conducted in
issue, the Supreme Court set specific parameters tailored the absence of the Policy; for that reason, we are compelled
to these unique circumstances, as indicated by its decision to proceed on the basis that the primary purpose of the urine
to use the term “informed consent,” language that does drug screens was crime detection, not medical treatment. Cf.
not appear in the Court's other consent-to-search cases. Ferguson II, 532 U.S. at 78 n. 13, 121 S.Ct. 1281 (noting
Under these parameters, Appellants' knowledge of law difference between reporting of information “acquired in
enforcement involvement in the Policy is critical to the the course of routine treatment” and “intentionally set[ting]
existence of informed consent. The Court admonished that out to obtain incriminating evidence ... for law enforcement
“when [medical personnel] undertake to obtain ... evidence purposes”).
from their patients for the specific purpose of incriminating

[17] We note also that the parties agree that Appellees bore [19] Because neither the general nor the ambulatory consent
the burden of proving, by a preponderance of the evidence, form establishes express consent to a search for evidence
that Appellants had consented to each of the searches.15 There of criminal activity for law enforcement purposes, we must
is some dispute among the courts of appeals regarding which consider whether Appellants gave implied consent, i.e.,
party bears the burden of proving consent, or the absence whether Appellants had knowledge of the Policy from one
thereof, in a civil suit alleging a violation of the Fourth or more sources and implicitly consented to the searches by
Amendment. See Trulock v. Freeh, 275 F.3d 391, 401 n. 4 thereafter going to MUSC for treatment. Courts generally
(4th Cir.2001) (citing cases). Because this case was litigated are reluctant to infer consent from mere notice followed
by all parties on the premise that Appellees had voluntarily by voluntary conduct. See McGann v. Northeast Ill. Reg'l
assumed the burden of proof, we will assume for purposes of Commuter R.R. Corp., 8 F.3d 1174, 1180–81 (7th Cir.1993)
this decision that the burden of proof rested on Appellees. (stating that notice and voluntary conduct are “necessary
but not sufficient conditions” for implied consent). For the
[18] With these principles in mind, we proceed to an reasons set forth below, we conclude that the evidence
examination of the evidence pertaining to each Appellant presented at trial was insufficient for a rational jury to find that
to determine whether a rational jury could have found that Appellants implicitly consented to the searches. First, as to
that Appellant consented to the taking and testing of her many of the Appellants, there simply is not enough evidence
urine by agents of law enforcement for the purpose of to justify a finding of knowledge of the critical portions of the
obtaining evidence of criminal activity. Initially, we consider Policy—namely, that the Policy involved searches of patients'
whether either the ambulatory consent form or the general urine for evidence of criminal activity for law enforcement
consent form was adequate to establish Appellants' informed purposes. Second, even if all of the Appellants could be found
to have had such knowledge, no rational jury could conclude
consent.16 As noted above, the *399 relevant language
that Appellants voluntarily submitted, for purposes of the
of the forms provided that the patient consented “to ...
Fourth Amendment, to treatment at MUSC.
testing for drugs if deemed advisable by or necessary in the
professional judgement of the physician or surgeon,” J.A.
1443 (ambulatory consent form), or that the patient consented
“to the testing of drugs if deemed advisable by my physician,” *400 1. Knowledge of the Policy
id. at 1442 (general consent form). Neither this language, nor
anything else in either form, advised or even suggested to
a. Lori Griffin
Appellants that their urine might be searched for evidence
of criminal activity for law enforcement purposes. Rather, [20] Griffin was searched under the Policy during a hospital
to the extent the forms alerted Appellants to the possibility
admission for preterm labor in early October 1989.18 When
that their urine would be tested for drugs, Appellants were
Griffin was subjected to the Policy, neither the Solicitor's
led to believe that such tests would be conducted only if an
letter nor the “To Our Patients” letter was in use, and the PSA
Appellant's treating physician deemed such a test advisable
had not yet begun to air. And, no testimony was elicited from
in the particular circumstances of that Appellant's medical
Griffin regarding any knowledge she had of the Policy. There
care. As discussed above, there is no evidence that any of the
was therefore no evidence from which a rational jury could
urine drug screens were conducted as a result of a doctor's
infer that Griffin had knowledge of the terms of the Policy.
independent medical judgment; to the contrary, it appears that
all of the tests were performed pursuant to the strictures of the
Policy. We therefore conclude that, as a matter of law, neither
the ambulatory consent form nor the general consent form b. Sandra Powell
could serve as sufficient evidence of Appellants' informed
Powell's urine tested positive for cocaine when she delivered
consent to the searches.17 Cf. Stoner v. California, 376 U.S.
her son in October 1989.19 As with Griffin, Powell was
483, 489–90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (holding
not provided with any documents related to the Policy and
that express or implied consent of hotel guest for entry by
was searched under the Policy before the PSA began to air.
maids, janitors, or repairmen did not extend to entry by police
Furthermore, there is no evidence that Powell was aware of
officers to search for evidence of crime).
the Policy prior to the search of her urine. We accordingly

conclude that the evidence was insufficient for a rational jury labor in August 1990. At trial, Pear testified that she was
to find that Powell had knowledge of the Policy. aware, at the time of these searches, that women were being
arrested based on positive urine drug screens. Specifically,
Pear agreed that “before going to MUSC for ... prenatal care
[she was] aware that MUSC was testing pregnant women
c. Laverne Singleton
for illegal drugs” and that “there was a policy regarding
[21] Singleton first tested positive for cocaine in connection arresting pregnant women [who] used illegal drugs during ...
with the birth of a child in November 1989. When confronted pregnancy.” J.A. 444. This evidence is sufficient to support a
with the positive test, Singleton informed Nurse Brown that finding of knowledge by a rational jury.
she had given permission for the urine screen “because she
thought she was clean.” J.A. 1862 (internal quotation marks
omitted). This statement clearly indicates a before-the-fact e. Paula Hale
awareness by Singleton that her urine would be tested for
cocaine. However, the question for the jury was not simply [24] Hale delivered a baby at MUSC in December 1990,
whether Singleton knew that her urine would be tested; rather, having received no prenatal care during her pregnancy. Hale's
the question was whether Singleton knew that her urine urine was searched and tested positive for cocaine. There is
would be searched for evidence of criminal conduct for law no evidence in the record from which a rational jury could
enforcement purposes. Appellees note that Singleton “was infer that Hale had knowledge of the Policy.
arrested after another Appellant's well-publicized arrest.”
Supplemental Br. of Appellees at 25. Even assuming that
Singleton's knowledge of this arrest would be sufficient for a
f. Crystal Ferguson
rational jury to infer her knowledge of the critical provisions
of the Policy, there is no evidence that Singleton was aware of [25] Ferguson requested a transfer to the MUSC clinic after
the arrest. The mere fact that an arrest was “well-publicized” viewing the PSA. Accordingly, we must consider whether
provides no indication that a particular individual was aware Ferguson's viewing of the PSA is evidence from which a
of the publicity. We therefore conclude that there is no rational jury could infer knowledge of the critical aspects
evidence from which a rational jury could infer Singleton's of the Policy. We conclude that it is not. The PSA simply
knowledge of the critical portions of the Policy. informed viewers that cocaine was harmful to fetuses and
that MUSC would provide help to pregnant women who
[22] Singleton's urine was searched again in November used cocaine. Nothing in the PSA provided any notice that
1990, after she delivered a baby in an ambulance en route to the “help” provided by MUSC involved searches of patients'
*401 MUSC. Although it is a close question, we conclude urine for evidence of criminal activity for law enforcement
that a rational jury could infer that Singleton had knowledge purposes.
of the critical aspects of the Policy when she gave this sample
of her urine. A year earlier, Singleton had been arrested by According to Nurse Brown's trial testimony, see supra note
law enforcement officers after her urine tested positive for 6, Ferguson would have received the “To Our Patients” letter
cocaine. The connection between the positive urine drug before her urine was searched. We determine, however, that
screen and the arrest could not have escaped Singleton's no rational jury could infer that Ferguson gained knowledge
notice, and a rational jury could determine that the connection of the critical aspects of the Policy from reading this
between the urine drug screen and the arrest was sufficient to document. As discussed previously, in order to be considered
apprise Singleton that the November 1990 urine drug screen informed of the critical aspects of the Policy, Appellants
was going to be performed for law enforcement purposes. had to understand that MUSC personnel were working with
and for law enforcement in testing Appellants' urine for
cocaine. Not only does the “To Our Patients” letter not impart
d. Pamela Pear such information, its text—which informed readers that law
enforcement authorities would become involved only after
[23] Pear's urine was searched under the Policy during continued drug-use problems—actively negates any such
a prenatal appointment at the MUSC clinic in July 1990 reading. In any event, there is no evidence that Ferguson read
and during an admission to the MUSC hospital for preterm the “To Our Patients” letter or, having read it, that she came

away with the necessary understanding of the Policy. Any urine for evidence of criminal activity for law enforcement
such finding by a jury would be speculative. purposes. And, there is no other evidence from which a
rational jury could infer that Williams had knowledge of the
[26] After Ferguson's urine tested positive for cocaine on critical aspects of the Policy.
June 19, 1991, she viewed the video on substance abuse
and signed the Solicitor's letter. In August, when Ferguson
delivered her child, she *402 was again searched pursuant
i. Summary
to the Policy, raising the question of whether the video or
the Solicitor's letter imparted to Ferguson knowledge of the For the reasons set forth above, we conclude that a rational
critical aspects of the Policy. Clearly, no such knowledge jury could have found the requisite knowledge of the Policy
was provided by the video, which was simply a general only as to Singleton and Pear. As to the other Appellants, the
production regarding the dangers of prenatal drug use and evidence does not support a finding of knowledge.
which included no discussion of the Policy. And, similar to
the “To Our Patients” letter, the Solicitor's letter provided no
information regarding the coordinated efforts of MUSC and
law enforcement personnel. Certainly, a reader could infer 2. Voluntary Conduct
from the Solicitor's letter that positive urine drug screens
[29] In addition to knowledge, Appellees also bore the
would be reported to law enforcement authorities. Critically,
burden of proving voluntary conduct—as earlier stated, a
however, the Solicitor's letter does not inform the reader
burden they assumed throughout trial and on appeal. The
that the urine drug screen which prompted the letter had
conduct of Singleton and Pear particularly, and the remaining
been a search conducted in conjunction with law enforcement
Appellants generally, in presenting themselves to MUSC for
personnel or, even more importantly, that any subsequent
treatment cannot be considered “voluntary” in a constitutional
urine drug screen would be done for law enforcement
sense.
purposes. Rather, the only reference to the involvement of
law enforcement personnel concerns the consequences of
As noted previously, one of the critical factors in assessing
a patient's failure to attend substance abuse counseling or
voluntariness under the totality of the circumstances is
prenatal care appointments. Accordingly, neither of these
“the possibly vulnerable subjective state of the person who
items provided evidence from which a rational jury could
consents.” Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041.
infer Ferguson's knowledge of the Policy.
Singleton was searched for the second time immediately after
she had given birth in an ambulance. *403 The second
search of Pear was performed when she was in preterm
g. Theresa Joseph labor. Beyond these specific searches, we note that of the 13
searches discussed in the previous section, six (including the
[27] Like Ferguson, Joseph also saw the PSA during her two searches of Singleton) were performed on patients who
pregnancy. For the same reasons that apply to Ferguson, we were in active labor or who had given birth immediately prior
conclude that Joseph's viewing of the PSA did not provide her to the search (in two cases, by emergency cesarian section).
with knowledge of the critical aspects of the Policy. The same Another three searches (including the second search of Pear)
is true of Joseph's later review of the Solicitor's letter. And, were performed on patients experiencing preterm labor, and
there is no other evidence from which a rational jury could two searches—the June 1991 searches of Theresa Joseph—
infer that Joseph had knowledge of the critical aspects of the were performed on a patient who was seriously ill and in
Policy.20 excruciating pain.
[30] Medical distress may create a vulnerable subjective

state that is inimical to voluntary consent in two ways. First, a
h. Patricia Williams
patient who is in dire need of medical treatment will feel less
[28] Like Ferguson, Williams requested prenatal care at the free to question or refuse certain portions of that treatment,
MUSC clinic after learning of the Policy. According to her even if she is physically capable of doing so. Second, the
testimony at trial, Williams' understanding of the Policy did physical strain of labor, birth, or serious illness will have a
not include any awareness that MUSC was searching patients' deleterious effect on the patient's mental process, limiting her

ability to rationally consider whatever choices she has. While (at the time of the November 1990 search) and Pear possessed
it is true that physical distress does not invariably vitiate the requisite knowledge of the policy, a rational jury could not
consent, see United States v. Mason, 966 F.2d 1488, 1494 find voluntariness.
(D.C.Cir.1992), Appellees assumed and thus bore the burden
of proving that despite their physical condition, Appellants
possessed sufficient mental faculties and awareness to allow
III.
them to give informed consent. No evidence bearing on this
issue was presented by Appellees. It may be the case, as Justice Scalia suggested, that the
outcome of this appeal is evidence “that no good deed goes
More generally, we note that Appellants were all insured unpunished.” Ferguson II, 532 U.S. at 104, 121 S.Ct. 1281
by Medicaid and that MUSC was the only medical system (Scalia, J., dissenting). It is certainly disheartening that, as
in the Charleston area that accepted Medicaid as a form of a result of our holding today, damages may be imposed
payment. Furthermore, the MUSC hospital and clinic were on those who acted with the best interest of Appellants
responsible for treating high-risk pregnancies, into which and their children at heart. But, however noble Appellees'
category most or all of Appellants fell. Thus, if Appellants intentions, the regrettable and inescapable conclusion remains
wished to receive prenatal care and assistance at delivery, the that Appellees did not bear their burden of proving that
record conclusively demonstrates that they had no choice but
they obtained constitutionally valid consent.22 We therefore
to seek such services at MUSC. And, Appellees presented no
must reverse the denial of the motion for judgment as a
evidence that Appellants would have been treated if they had
matter of law as to all Appellants except Ellen Knight, and
refused to provide a urine sample. While we cannot imagine
remand for further proceedings. Because Knight suffered no
that such treatment would have been denied, especially
constitutional violation, we affirm as to her. On remand, the
for those patients in medical distress, this is a matter on
district court should conduct proceedings regarding Darlene
which Appellees voluntarily assumed the burden of proof.
Nicholson's standing and Appellants' damages.
Appellees' failure to present evidence on this point requires us
to assume that Appellants did not have the option of refusing
AFFIRMED IN PART, REVERSED AND REMANDED IN
to be searched and still obtaining medical treatment. The
PART.
choice to be searched or forego necessary medical treatment
“is the antithesis of free choice” to consent or refuse.21
Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d
NIEMEYER, Circuit Judge, concurring in the judgment in
562 (1967); cf. id. at 496–97, 87 S.Ct. 616 (holding that choice
part and dissenting in part:
between forfeiture of Fifth Amendment right to remain silent
Under the limited review that we are now directed to conduct
and loss of employment rendered confession involuntary).
by the remand order of the Supreme Court and that is required
by the deferential standard applicable to that review—taking
This voluntariness inquiry is particularly important as to
the facts in a light most favorable to the Medical University
Singleton and Pear, the only two Appellants as to whom
of South Carolina—I would affirm the jury's verdict. Even if
a rational jury could find knowledge of the critical *404
I were to apply the new legal standard for consent articulated
aspects of the Policy. Singleton was in significant physical
in dictum by the Supreme Court in its remand order, I would
distress at the time of the November 1990 search (at which
affirm with respect to nine of the appellants, either because the
time she had knowledge of the critical aspects of the policy),
facts support a finding that the search under Policy M 7 was
which was performed very shortly after she had given birth.
consented to with full knowledge or because the appellant's
The second search of Pear occurred when she was in preterm
claim did not implicate the Policy. Under this new standard,
labor. There is no evidence in the record to indicate that
I would reverse the judgment only as to Laverne Singleton
Singleton and Pear were in a condition to voluntarily consent
because of an insufficiency of evidence to demonstrate her
to a search. And, even though Pear was not in any physical
knowledge of the consequences of her voluntarily supplying
distress the first time her urine was searched, Appellees failed
a urine sample. My reasons follow.
to present evidence that would have allowed a jury to find that
she could have received prenatal care without submitting to a
search of her urine, or that she could have foregone such care
altogether. We therefore conclude that even though Singleton

enforcement may ultimately have been intended as a means

to an end, but the direct and primary purpose of MUSC's
*405 I
policy was to ensure the use of those means. In our opinion,
The ten women who are plaintiffs in this action contend this distinction is critical.... Given the primary purpose
that Policy M–7 of the Medical University of South of the Charleston program, which was to use the threat
Carolina (“MUSC”)—providing that urine samples, given of arrest and prosecution in order to force women into
by certain pregnant women, be screened for the presence treatment, and given the extensive involvement of law
of illicit drugs and that the results be forwarded to law- enforcement officials at every stage of the policy, this case
enforcement authorities for prosecution—violated their right simply does not fit within the closely guarded category of
against unreasonable searches, as protected by the Fourth “special needs.”
Amendment. The district court rejected MUSC's claim that
the purported searches were justified by the “special needs” Id. at 82–84, 121 S.Ct. 1281. Distinguishing its earlier cases
exception to the Fourth Amendment, but, following a trial, in which it justified drug testing, the Court said that “[i]n each
a jury found that each of the ten plaintiffs consented to of those earlier cases, the ‘special need’ that was advanced as
the searches, and therefore the Fourth Amendment was not a justification for the absence of a warrant or individualized
implicated. suspicion was one divorced from the State's general interest
in law enforcement.” Id. at 79, 121 S.Ct. 1281. The Court
On appeal, we affirmed, but not on the issue of consent. We then reiterated its basis for concluding differently in this case,
concluded that the searches themselves were reasonable under stating that “the central and indispensable feature of the policy
the “special needs” doctrine, which justifies certain searches from its inception was the use of law enforcement to coerce
designed to serve non-law-enforcement ends—in this case the patients into substance abuse treatment.” Id. at 80, 121
the medical interests of the mothers and the babies—even S.Ct. 1281.
though law-enforcement means were employed. Ferguson
v. City of Charleston, 186 F.3d 469, 477 n. 7, 479 (4th *406 The Court explicitly did not review the question of
Cir.1999); see also Vernonia Sch. Dist. 47J v. Acton, 515 whether the patients gave their consent to the searches, as the
U.S. 646, 652–53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); jury had found. Rather, on this point, the Court said, “[W]e
Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451–55, necessarily assume for purposes of our decision—as did the
110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); Griffin v. Wisconsin, Court of Appeals—that the searches were conducted without
483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). the informed consent of the patients.” Id. at 76, 121 S.Ct.
We grounded our holding on the conclusion that the urine 1281; see also id. at 77, 121 S.Ct. 1281. After reversing on the
drug screens conducted under the Policy were, in fact, for one issue that it did decide, the Court remanded the case for
medical purposes wholly independent of the incidental law- our review on the previously unreviewed question of whether
enforcement efforts and that the law-enforcement efforts were the jury had evidence to support its finding of consent. As
intended to reinforce the medical purposes. Ferguson, 186 dictum, the Court explained that hospital employees have
F.3d at 477. “a special obligation to make sure that the patients are
fully informed about their constitutional rights, as standards
On review by certiorari, the Supreme Court reversed our of knowing waiver require.” Id. at 85, 121 S.Ct. 1281. In
judgment and remanded the case for further proceedings. making that statement, however, the Court did not review its
Ferguson v. City of Charleston, 532 U.S. 67, 86, 121 S.Ct. jurisprudence of consent, nor did it appear to be adopting a
1281, 149 L.Ed.2d 205 (2001). The only issue decided by the new standard for giving consent and thereby overruling the
Supreme Court was whether the MUSC policy was a search pre-existing law. Under the pre-existing law, consent to waive
justified by the “special needs” doctrine. On this issue, the a Fourth Amendment right did not depend on a knowing
Court concluded: and intelligent decision or on full or accurate information
but rather whether the defendant “voluntarily” provided the
While the ultimate goal of the program may well have information, regardless of whether the act was knowing or
been to get the women in question into substance abuse intelligent or whether the inducement was complete, true,
treatment and off of drugs, the immediate objective of the or accurate. See, e.g., Schneckloth v. Bustamonte, 412 U.S.
searches was to generate evidence for law enforcement 218, 235–46, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Hoffa
purposes in order to reach that goal. The threat of law v. United States, 385 U.S. 293, 300–02, 87 S.Ct. 408, 17

L.Ed.2d 374 (1966). Were it otherwise, the procedures of constitutional search depended on the patient's consent. The
law enforcement would have been dramatically changed, court said:
and doubt would be cast upon virtually every consent that
is routinely given today without full knowledge of the There not being a warrant issued, [the searches] are
consequences. See Schneckloth, 412 U.S. at 243, 93 S.Ct. unreasonable and in violation of the Constitution of the
2041 (noting that it would be “next to impossible” to apply United States, unless the defendants have shown by the
such a standard). greater weight or preponderance of the evidence that the
plaintiffs consented to those searches.
If mere “voluntariness” remains the correct standard for
waiving a governmental search, then it is beyond dispute
that the jury had, in each instance in this case, sufficient ***
evidence to support its finding of voluntariness. There is no
evidence that any patient was compelled to provide a urine [I]t is conceded by the parties that if the searches were
sample or that any patient objected to providing one when consented to then they are constitutional. And again you
requested to do so by medical authorities. And the majority may reach a different conclusion as to consent from
agrees with this observation. See ante at 390 n. 8. Indeed, plaintiff to plaintiff. That doesn't have to be so, that's
even before adoption of Policy M–7, it was established dictated by the facts. But it doesn't mean that if there is
medical protocol to obtain urine samples for medical purposes consent in one case that there is necessarily consent in the
when the patient presented signs that she may have been on other or vice versa. Again, you have to look at the facts that
drugs during her pregnancy. As testified to by Nurse Shirley relate to each plaintiff and reach a decision on the question
Brown, the Obstetrics Case Manager at MUSC, MUSC had of consent.
been following such a medical protocol before adoption of After telling the jury that the State carried the burden of
Policy M–7, and the adoption of Policy M–7 in October and proving consent, the court then proceeded to explain how the
November of 1989 was only intended to put teeth into the pre- jury was to conclude whether each defendant consented:
existing protocol by systematically subjecting the patient to
The matter of consent more often than not is discussed in
the possibility of prosecution for the abuse of drugs revealed
terms of voluntariness and willingness to give the consent.
by the drug screen tests.
But before there can be any voluntariness, before there
can be any consent, there must be knowledge. The person
But even if the standard suggested by the Supreme Court
giving the consent must have knowledge of what she is
by dictum turns out unwittingly to be a new standard, the
doing. It's basic that before you can consent to something,
evidence, in my judgment, supports the jury's finding of
you have got to know what it is. You have to have enough
consent in favor of MUSC in at least five of the instances
information to know what is being done before you can
presented. Under this “new” standard, the inquiry stated by
consent to it. And the scope of the consent must be broad
the majority is the appropriate one: (1) did the patient have
enough to include the search in question. Consent for one
knowledge that the urine screens could be used as a basis
purpose may be broad enough to cover one actor, but may
for arresting the patient and (2) did the patient, having that
not be broad enough to cover another actor.
knowledge, provide the urine samples voluntarily. Because
there is no evidence that the urine samples were coerced, the The written consent in this case may be sufficient to cover
only factual question is whether the patients provided those the taking of a urine sample and the testing thereof by
samples with knowledge that the test results might be used for Medical University of South Carolina officials alone, but
prosecutorial purposes. it is not sufficient to cover the sharing of that information
with law enforcement officials. That written consent is not
sufficient consent to warrant a search where the search
*407 II information is furnished to law enforcement officers. There
must be something in addition to that written consent
In reviewing the jury's findings in this case, it is important before you can say that these were consent searches.
first to understand the law that the jury was applying. The
district court, after telling the jury that there were no search
***
warrants in this case, instructed the jury that any finding of a

the woman was counseled about the harmful effects of drugs

And therefore to show that there is a valid consent in this on her and her child and was referred to substance abuse
case there must be something else that convinces you that treatment. No one has argued that this pre-Policy medical
the plaintiffs consented not only to the taking of this urine protocol involved an unconstitutional search.
for the use by the medical people, but also the sharing
of it with law enforcement people for the possibility of Policy M–7, the subject of this case, was agreed upon
prosecution for drug offenses. by MUSC, the police, and the solicitor (chief prosecuting
(Emphasis added). attorney) on or about October 12, 1989, when the police
Thus the district court instructed the jury to decide both department sent Nurse Brown a proposed form of the
whether the plaintiff—patients had knowledge that their Policy to which the various entities had agreed orally.
urine screens could be used to prosecute them and whether This communication was followed by a memorandum dated
their giving urine samples, in light of this knowledge, was October 17 actually announcing the “policies concerning
voluntary. And applying these instructions to the facts, drug abusing pregnant women.” And, thereafter, Policy M–
the jury found that each of the appellants knowingly and 7 was formally adopted as part of the MUSC medical center
voluntarily consented to the searches. policy manual on November 27, 1989. As announced and
informally adopted, Policy M–7 included a form solicitor's
letter dated October 18, 1989, addressed to patients and
*408 III candidly warning them of their potential arrest: “Please
understand that by using drugs during pregnancy, you are
Recognizing that the jury was not misinstructed, even under risking death or at least severe long-term harmful effects
the “new” standard, we need only concern ourselves with the to your baby. If you fail to obtain Substance Abuse and
question of whether there was evidence from which the jury Pre Natal Care, you will be arrested by Charleston City
could reasonably have reached the conclusion that consent Police and prosecuted by the Office of Solicitor.” The
was in fact given. Benesh v. Amphenol Corp. (In re Wildewood date of the solicitor's letter, which was to be employed
Litig.), 52 F.3d 499, 502 (4th Cir.1995). In applying this as part of the Policy, confirms when Policy M–7 was
standard of review, we take the evidence in a light most informally implemented, as does the testimony of Nurse
favorable to MUSC. Id. Brown. Summarizing her testimony, the district judge stated,
“She has testified, as I understand it, to two things. She
The record shows that before Policy M–7 was adopted in said late October of ′89 or the first part of November of
mid-October or November 1989, MUSC utilized a medical ′89 the policy was first adopted,” and the plaintiffs' attorney
protocol solely for medical reasons to test urine samples agreed with that summary. (J.A. 587.) In short, on or about
of pregnant women who presented themselves with certain October 17 or 18, 1989, Policy M–7 was first adopted, albeit
medical conditions. Nurse Brown testified that, under this informally, and beginning then, it authorized drug screening,
pre-Policy medical protocol, “if people met certain criteria the results of which could be used to support arrests of
that were listed that were published by the faculty, you know, pregnant women.
to go out into the clinics that the following are indicators and
would need to be screened, you know, for medical evaluation, *409 A modification of Policy M–7, providing a second
then they would have [been screened].” She explained that chance to patients testing positive for drugs if they
the urine screen for drugs would be prescribed under the successfully completed treatment, was adopted in January
protocol if the patient had “no prenatal care, late prenatal care, 1990. And during this period, a public service announcement
abruptio placentae, intrauterine fetal death, preterm labor, and was developed and broadcast publicly and privately to
there was one other one that was supposed to be screened patients. That announcement stated:
prenatally or at delivery.” This protocol was adhered to by
all physicians and was communicated to medical residents When you're pregnant, just one line of cocaine, a single
by memorandum. Thus, when a patient was abrupting, “the hit of crack, rushes to your baby's body and brain. Within
placenta was separating, [and] it was putting her life and [the] minutes your body can be jolted into premature labor
baby's life in jeopardy, ... the physician order[ed] a [urine risking a still developing child to stroke, even death. And
drug] test as part of many tests that they order.” Under the not only will you live with the guilt, you could be arrested.
protocol, if the drug screen proved positive for drug abuse,

Policy M–7 in mid-October and early November 1989 was

But this is a tragedy you can prevent. If you have a conducted for prosecutorial purposes and thereby violated the
problem with drugs talk to your doctor or call MUSC at Fourth Amendment.
792–6437. Trained counselors will guide you through drug
rehabilitation and advise you about good prenatal care. And With respect to the urine samples provided by Pamela Pear,
if you stay with the program, you will not be arrested or Paula Hale, Crystal Ferguson, Theresa Joseph, and Patricia
prosecuted. Williams, Policy M–7 was fully in effect. But in each
case, when a sample was taken and tested, the prosecutorial
Wake up from the nightmare. Think about your baby first.
potential was explained to the patient. Indeed, the majority
opinion agrees that Pear was aware that MUSC was testing
It is against these facts about when Policy M 7 was
pregnant women for illegal drugs and that she knew that
adopted and implemented that we must consider the personal
*410 MUSC had a policy regarding arresting women who
circumstances of the appellants in this case.
used illegal drugs during pregnancy. Hale similarly had full
knowledge of the Policy. She came to MUSC on December
13, 1990, and delivered a baby. Urine samples provided at
IV her delivery tested positive for cocaine. She signed a copy
of the solicitor's letter specifically warning of arrest and has
The record evidence shows that Lori Griffin and Sandra admitted to knowing at the time that drug screens at MUSC
Powell each gave urine samples to MUSC under MUSC's
were being used to support arrests of pregnant women. And
medical treatment protocol as it existed before adoption Ferguson likewise had full knowledge. She came to MUSC
of Policy M–7 and thus the screens were not searches because she was using drugs and needed help. She signed
implicating the Fourth Amendment. Griffin signed an the consent form, viewed the public service announcement
ambulatory consent form on June 28, 1989, then gave a urine warning of dangers of using drugs and warning that she could
sample, and tested positive for cocaine. On October 7, 1989, be arrested, and signed the solicitor's letter, which specifically
again before Policy M–7 was adopted, Griffin went to MUSC warned patients that they could be arrested. Again, Joseph
for pre-term labor. During this admission, she gave another also saw the public service announcement and, on presenting
urine sample that tested positive for cocaine. As she was herself to MUSC, signed a consent form. In addition, she
released from the hospital, she was arrested on the basis of the signed the solicitor's letter specifically warning her of the
positive showing and remained in custody until she delivered potential for arrest. Finally, Williams specifically asked to
her baby on October 26. In January 1990, Griffin was indicted be transferred from North Charleston Health Department to
for possession of cocaine and distribution of cocaine to a MUSC for prenatal care because of her drug problem. She
minor on October 6 and 7, 1989, as revealed by medical had heard about the MUSC policy and admitted knowing
testing conducted before the implementation of Policy M–7. that MUSC was testing women for the presence of drugs.
When she presented herself at MUSC, she signed the consent
Powell similarly signed an ambulatory consent form on May form and tested positive. She was then shown the video
24, 1989, when she came to MUSC for prenatal care before on substance abuse, given a copy of the solicitor's letter
Policy M–7 came into effect. On October 13, 1989, she and scheduled for an appointment at the Charleston County
was taken to MUSC in an ambulance when she went into Substance Abuse Center. With this information, Williams
labor, and at the time of that admission, a urine sample was gave urine samples on two occasions thereafter, as well as an
provided. It tested positive for cocaine, and the next day, additional time at the delivery of her baby. On each of these
Powell was arrested on the basis of that medical record for three occasions, she tested positive for drug abuse. Thus, with
her cocaine abuse. Again, all of this occurred before adoption respect to each of these five appellants, the record amply
of Policy M–7. supports the jury's conclusion that the patients were fully
informed of prosecutorial purposes when they provided their
With respect to each of these patients, I submit that, and urine samples for drug testing.
certainly the jury could have found that, the urine tests
were conducted pursuant to the medical protocol in existence The facts relating to Laverne Singleton are distinguishable
before Policy M–7 and that the urine samples were voluntarily from these five and do not support a finding that she consented
provided for medical reasons. No appellant has contended to use of test results for prosecutorial purposes. Singleton
that the medical protocol as it existed before the adoption of

also nationwide. Drug abuse by pregnant women harms the

delivered two children through the medical assistance of
woman as well as the fetus that she carries, permanently
MUSC. In connection with her first child, delivered on
injuring the fetus and imposing on the baby a life-time of
November 9, 1989, a postpartum urine screen tested positive
problems from birth. Far beyond the problems of the mother
for cocaine. She had received no prenatal services at the
and child are the enormous social problems borne by the
obstetrics clinic. She admitted at the time that she consented
community. Even as well-intended as Policy M–7 may be, it
to the urine drug screen because she “thought she was clean.”
must nonetheless comport with constitutional constraints. The
Based on the November 9 test, she was arrested. During
Supreme Court has concluded that coupling the medically
the course of a second pregnancy in 1990, she had two
necessary drug testing of women who present evidence of
positive drug screens. When she was admitted for delivery
drug abuse with the concomitant purpose of prosecuting them
in November 1990, she again tested positive for cocaine. As
based on the results of the drug tests is not justified by a
an alternative to arrest for drug abuse, Singleton voluntarily
“special needs” exception to the Fourth Amendment. The
admitted herself to inpatient treatment at the MUSC Institute
Court held that only if such testing were, as a factual matter,
of Psychiatry. While her arrest in 1989 shows her knowledge
consented to could such a search be made, and on the consent
of the Policy when she submitted samples with respect to
her second pregnancy and delivery in 1990, the record fails question, the Court committed the issue to us to resolve.
to support a finding that she had knowledge of the Policy
I respectfully submit that the record amply supports the
or of prosecutorial purposes when she was tested in 1989.
jury's finding that all of the women voluntarily supplied
Accordingly, under the “new” standard under which we are
urine samples for testing. And, if we must require an
now considering Singleton's claim, I would conclude that a
informed consent, the record amply supports the jury's
reasonable jury could not find that Singleton consented to the
finding that five of the women—Pamela Pear, Paula Hale,
search in 1989 that led to her arrest.
Crystal Ferguson, Theresa Joseph, and Patricia Williams—
knowingly consented to the searches and that four other
With respect to Ellen Knight, the majority opinion concludes
women do not have claims because three—Lori Griffin,
that she does not have standing to assert a claim because
Sandra Powell, and Darlene Nicholson—submitted urine
only her child's urine was tested. I agree. And with respect
samples under a purely medical protocol, and Ellen Knight
to Darlene Nicholson, the majority opinion concludes that
was never personally tested under the Policy. Only as to
she was tested after the Policy had been discontinued. While
Laverne Singleton does the evidence fail to support the
the majority opinion would remand Nicholson's claim to
district court's judgment under this standard.
determine *411 whether in fact she was searched under the
Policy, I respectfully submit that the burden is on Nicholson
Accordingly, on remand from the Supreme Court, I would
to demonstrate that she was searched pursuant to the Policy,
affirm, or, alternately, I would reverse the judgment of the
and she has failed to carry that burden.
district court as to Singleton and affirm as to the other
appellants.
V
All Citations
In adopting, modifying, and implementing Policy M–7,
MUSC has made a serious effort to address a serious problem 308 F.3d 380
—a problem that exists not only in South Carolina but
Footnotes
1 The complaint filed by Appellants named as defendants the City of Charleston, South Carolina; the trustees of MUSC;
Charleston City Police Chief Reuben Greenberg; former Ninth Circuit Solicitor Charles Condon; then—current Ninth
Circuit Solicitor David Schwacke; Nurse Shirley Brown; Nurse Melesia Henry; and several physicians and MUSC officials
involved in obstetrical and neonatal care at MUSC. We will refer to the defendants collectively as “Appellees.”

2 Although both are part of the MUSC system, the MUSC hospital and the MUSC clinic appear to be administratively
separate. Pregnant women received outpatient prenatal care at the clinic; the hospital provided inpatient services,
including delivery.
3 Arguably, the development of such a program was unnecessary; MUSC personnel could have reported positive urine
drug screens obtained during the normal course of medical treatment to law enforcement personnel under the South
Carolina child abuse and neglect reporting statute, S.C.Code Ann. § 20–7–510 (Law.Coop.Supp.2001). Such a course
of action was not followed, however.
4 Those criteria were: (1) separation of the placenta from the uterine wall; (2) intrauterine fetal death; (3) no prenatal
care; (4) late prenatal care (beginning after 24 weeks gestation); (5) incomplete prenatal care (fewer than five visits);
(6) preterm labor with no obvious cause; (7) a history of cocaine use; (8) unexplained birth defects; and (9) intrauterine
growth retardation with no obvious cause.
5 Although documents related to the Policy indicate that arrests were not to be made until a patient had tested positive a
second time or failed to comply with treatment obligations, the actual application of the Policy was not so lenient. Several
women were arrested during the initial stages of the Policy after a single positive drug screen. See Ferguson v. City of
Charleston, 532 U.S. 67, 72 n. 5, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001).
6 Appellees assert that the “To Our Patients” letter was in use from the outset of the Policy, i.e., as early as October 1989.
However, Brown's testimony established that the letters were not immediately available. Rather, it appears that the “To
Our Patients” letter came into use in January 1990.
7 There is no evidence that any Appellant was searched after receiving this version of the Solicitor's letter.
8 At the outset, we note that none of the Appellants were subjected to forcible extraction of their urine. Throughout this
litigation, the parties have proceeded on the premise that all urine samples were provided at the request of MUSC
personnel.
9 Nurse Brown testified that all obstetrical patients in the MUSC clinic were given the “To Our Patients” letter prior to their
urine being searched, and we must accept this testimony as true as to those patients who received treatment in the
MUSC clinic during the time that the “To Our Patients” letter was in use. However, Pear's medical file includes nursing
notes specifically stating that Pear was not given the “To Our Patients” letter until after the July 1990 search. This conflict
in the evidence is immaterial to our resolution of the appeal.
10 Justice Scalia further argued that once the urine sample had been obtained, any deception practiced upon Appellants
by MUSC personnel was irrelevant to the question of consent. See id. at 94–95, 121 S.Ct. 1281 (Scalia, J., dissenting).
However, Appellees have never contended that they properly used deception to obtain and test Appellants' urine.
11 Moreover, the majority in Ferguson II implicitly rejected Justice Scalia's position.
12 This lawsuit does not include a claim by or on behalf of Knight's child.
13 This is true notwithstanding that Knight may have suffered damages as a result of information obtained from the urine
drug screen performed on her child. See Rakas, 439 U.S. at 134, 99 S.Ct. 421 (“A person who is aggrieved by an illegal
search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises
or property has not had any of his Fourth Amendment rights infringed.”).
14 The Ferguson II opinion went so far as to suggest that, in addition to the heightened burden of proving informed consent,
Appellees should also be required to demonstrate that Appellants were aware of their constitutional right to refuse to
consent. See id. at 85, 121 S.Ct. 1281. This language is in some tension with Schneckloth, in which the Court held that
“[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish
such knowledge as the sine qua non of an effective consent.” Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. We need not
decide whether the Court truly intended to impose this additional burden, because Appellees cannot meet the burden of
demonstrating Appellants' informed consent to the searches even under the more lenient standard discussed above.

15 While the district court instructed the jury to consider each Appellant individually, it did not charge the jury that it must
consider each search individually to determine whether that Appellant gave informed consent to that particular search.
Such an instruction should have been given, since each taking and testing of a patient's urine under the Policy constituted
a separate search for purposes of the Fourth Amendment. We appreciate the difficulty faced by the district court in issuing
clear, concise instructions in a multi-party, multi-issue lawsuit. Nevertheless, on remand the district court should present
the damages issue to the jury in a way that allows the jurors to assess damages for each Fourth Amendment violation
suffered by each Appellant.
16 Appellees assert that once an Appellant signed either the ambulatory or the general consent form, informed consent
was established for all future searches of that Appellant. Since we conclude that neither form was adequate to establish
informed consent for Fourth Amendment purposes, we do not address this argument. We note, however, that Appellees
are essentially claiming that consent to one search necessarily establishes consent to all future searches. This is, to say
the least, a dubious assertion.
17 Even if informed consent could be inferred from the signing of the general consent form, the legitimacy of such an
inference would be doubtful as to some of the Appellants. Sandra Powell, for example, never signed a general consent
form when she was admitted to the MUSC hospital for the delivery of her child. Rather, because Powell was in active
labor, the form was signed by her mother. Appellees maintain that Powell's mother had authority to consent to a search
of her daughter's body, but we are aware of no evidence in the record supporting such a conclusion.
18 Griffin's urine also tested positive for cocaine in June, during a pre-natal appointment at the MUSC clinic. Since the
Policy had not been developed at that time, that test does not fall within the ambit of this lawsuit, which challenges only
searches conducted pursuant to the Policy.
Appellees argue that the Policy did not exist until it was adopted by the MUSC Executive Committee in early November
1989, and thus the search of Griffin's urine—along with the searches of Sandra Powell's and Laverne Singleton's urine
—are not within the scope of this lawsuit. The evidence at trial, however, established that the Policy, including the
involvement of law enforcement (as evidenced by the arrests of Griffin and Powell for positive urine screens in early
October 1989), was operational even before its adoption by the Executive Committee.
19 Powell's urine also tested positive for cocaine in May during a prenatal appointment at the MUSC clinic. This test does
not fall within the ambit of this lawsuit.
Powell's son also tested positive for cocaine in October 1989. This lawsuit does not include a claim by or on behalf
of Powell's son.
20 Joseph did not receive prenatal care from the MUSC clinic, and so would not have seen the “To Our Patients” letter. In
any event, as discussed above, that document did not provide information regarding the critical aspects of the Policy.
21 It is no answer to suggest that Appellants could simply have foregone prenatal care, much less assistance at delivery,
in order to avoid application of the Policy. This much is established by the terms of the Policy itself and the emphasis
MUSC personnel placed on prenatal care. For example, under the terms of the Policy a pregnant woman whose urine
had once tested positive for cocaine could be arrested for failing to attend prenatal care appointments. Furthermore, it
is not inconceivable that a woman who fails to obtain prenatal care could be subject to prosecution for child neglect. Cf.
David Abel, Pregnant Sect Member in State Custody, Boston Globe, Sept. 1, 2000, at A1 (describing case of pregnant
woman incarcerated in part because of refusal to submit to medical examination).
22 We note that our review of this case has been hampered in several respects by sparse evidence in the record. For
example, Appellants did not present evidence regarding what they believed would happen if they refused to provide
samples of their urine; Appellees, for their part, failed to present evidence that Appellants could pick and choose among
treatment options. We are mindful of the complexity of this litigation, and we do not suggest that counsel are to be faulted
for failing to have perfect foresight. We simply observe that complex cases are difficult not only for the parties and the
district court, but also for appellate courts, which must rely on the record created by the parties.

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Ferguson v. City of Charleston, S.C., 308 F.

Internal Medicine; American Academy

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1

of patients' urine samples for evidence of cocaine use was

3 Cases that cite this headnote

[6] Search, Seizure, and Arrest Drug testing

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[13] Search, Seizure, and Arrest Necessity of

Searches conducted without a warrant are per se

[17] Search, Seizure, and Arrest Drug testing

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1 Case that cites this headnote

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enforcement purposes, text of letter, which

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F.3d 768, 775 (4th Cir.1998). Viewed in light of that standard,

WILKINS, Circuit Judge.

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received prenatal care at the MUSC clinic. Known as the

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In November 1990, Singleton delivered another baby, this

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later signed a general consent form. In connection with

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for cocaine. During a subsequent prenatal visit on December

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denied the motion, stating that “[t]here is evidence in the

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acting in conjunction with law enforcement authorities. It is

[9] Nicholson's urine was tested for cocaine in October and

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© 2024 Thomson Reuters. No claim to original U.S. Government Works. 14

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 15

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[30] Medical distress may create a vulnerable subjective

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enforcement may ultimately have been intended as a means

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the woman was counseled about the harmful effects of drugs

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 21

Policy M–7 in mid-October and early November 1989 was

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 22

also nationwide. Drug abuse by pregnant women harms the

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 23

11 Moreover, the majority in Ferguson II implicitly rejected Justice Scalia's position.

12 This lawsuit does not include a claim by or on behalf of Knight's child.

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 24

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 25

End of Document © 2024 Thomson Reuters. No claim to original U.S.

© 2024 Thomson Reuters. No claim to original U.S. Government Works. 26

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