Ferguson V City of Charleston SC
Ferguson V City of Charleston SC
3d 380 (2002)
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.
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.
1 Case that cites this headnote
[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.
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
U.S.C.A. Const.Amend. 4.
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
implied in law; airports and boarding searches
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,
[29] Search, Seizure, and Arrest Consent
National Advocates for Pregnant Women, New York,
implied in law; airports and boarding searches
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
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.
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.
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
[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.
[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.
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
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
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.
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.