Ferguson v. City of Charleston - Oral Argument

Argument of Priscilla J. Smith

Chief Justice Rehnquist: We'll hear argument now in Number 99-936, Crystal Ferguson v. The City of Charleston.

Ms. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court--

This case involves pregnant women who sought medical care at a public hospital and who then were searched by their doctors for evidence of crimes and arrested, seven of them right out of their hospital beds.

The special needs exception does not apply to this case to excuse the lack of warrants for three reasons.

First, unlike every other special needs case, the threat of law enforcement, the use of arrest as leverage was the key element of the policy.

It was, in the respondent's own words, what made the policy effective.

Second, the searches were conducted here in the context of the private, physician patient relationship and thus there was no diminished expectation of privacy, again, unlike the other special needs cases.

And finally, the defendants here skirted the warrant and probable cause requirements without demonstrating impracticability.

Justice Souter: Ms. Smith, with respect to the first of your reasons you point out that it is quite true, in a sense, that the law enforcement component of the whole scheme was necessary for success.

I think success as you're using it is success in getting people into the drug treatment, the counseling program and finishing whatever course of counseling there is, and I understand that.

But isn't there a special need, independent of that, in the sense that the treating physicians need to know... regardless of whether anyone takes counseling or not they simply need to know whether there is drug use involved, because that affects the risks to the mother and the risks to the fetus, and those are the things that they need to provide for.

So my question is, even if we assumed there were no law enforcement component and there were no counseling scheme, wouldn't they have a special need to know and, in fact, didn't they demonstrate that before the law enforcement component was even added to the mix?

Mr. Smith: If there were no law enforcement scheme there would be a search that was being done, but it would be a search that was only done for medical purposes, Your Honor, and therefore, as it was before the policy was--

Justice Souter: Right.

Mr. Smith: Right.

Justice Souter: Yes.

Mr. Smith: --implemented, right, and therefore it would have been consented to, because there was consent to treatment in that context.

But as soon as they incorporated a criminal sanction and made the policy what it was, they had to comply with the Fourth Amendment, and what the warrant--

Justice Souter: Well, they had no... I'll grant you that the treating physicians had no special need, I guess, to get people into drug treatment programs, necessarily, but they did have a special need to discover the facts and, in fact, to get the evidence that ultimately was turned over to the police.

That is correct, isn't it?

Mr. Smith: --In some cases there may have been a need to do medical testing.

In some cases--

Justice Souter: Well, didn't they do it... maybe I'm wrong.

Didn't they do it routinely?

Mr. Smith: --They did medical testing prior to the policy for about 3 to 6 months, Your Honor.

They had just started to do testing--

Unknown Speaker: Okay.

Mr. Smith: --pursuant to a listed protocol.

As soon as they adopted the policy they... 3 months later, approximately, they expanded the protocol in order to find more people and really what this policy was about was using arrest as leverage, and they've admitted that in their brief.

Justice Ginsburg: Suppose they had reasons--

Mr. Smith: Yes.

Justice Ginsburg: --to have arrests.

Mr. Smith: Mm hmm.

Justice Ginsburg: They had turned this information over to the Social Services Department--

Mr. Smith: Mm hmm.

Justice Ginsburg: --to the people who act as counselors to women who are receiving public assistance.

Would that have involved any Fourth Amendment violation in your view?

Mr. Smith: I don't believe it would have been a violation, Your Honor, if they were testing for medical purposes and discovered evidence of drug use during pregnancy.

At that point they have some level of individualized suspicion and reporting to DSS, as they did, for every other substance, for heroin, for methamphetamines... they didn't report any of those to the police.

Reporting those to DSS may meet some kind of reasonable ground standard.

Justice O'Connor: What is DSS, please?

Mr. Smith: I'm sorry, Your Honor.

It's the Department of Social Services, to the civil child abuse authorities.

Justice Kennedy: Why does individualized suspicion help?

In cases like Sitz, the roadblock case, one of the rationales for sustaining it is that it's random.

Mr. Smith: That's right, Your Honor, but Sitz is--

Justice Kennedy: They were work both ways, the randomness and the individualized search, and it seems to me that the policy of testing everyone to see if some need counseling is perhaps more sustainable than the individualized suspicion--

Mr. Smith: --Well, in fact--

Justice Kennedy: --argument that you're making to us--

Mr. Smith: --If I understand Your Honor correctly, in Sitz, for example, it's a standardized, nondiscretionary policy, and that I think is what saves it.

It's also a minimal intrusion, not a search like we have here, and there's also the diminished expectation of privacy that drivers have, and that this Court has discussed in a number of cases, including Opperman, and in Sitz, whereas in this case we have a discretionary list of criteria where some women who met the criteria were tested.

We know in--

Justice Kennedy: --So it would be more sustainable if they did this for everybody?

Mr. Smith: --I believe on some levels it would be.

On the other hand, this is not like Sitz for the other reasons I mentioned.

There's a search, not a--

Justice Kennedy: Well I mean, which would you say, the individualized suspicion helps or hurts, because you were arguing a moment ago that individual suspicion makes this more suspect--

Mr. Smith: --But I don't... I'm sorry.

Justice Kennedy: --and now you're telling me that it would have been better without it.

Well, I need to know--

Mr. Smith: I don't believe that there was individualized--

Justice Kennedy: --which is the more appropriate policy for a hospital to use, to do this for everybody, or just with individualized suspicion.

Which of the two?

Mr. Smith: --If there was true individualized suspicion, and a search was done and... just for civil purposes, Your Honor, that might meet Fourth Amendment standards.

The lower courts have held civil searches to a lower level than the probable cause standard.

Justice Scalia: Is DSS civil purposes?

Mr. Smith: Yes, Your Honor, I'm sorry.

The Department of Social Services is the civil child abuse investigatory agency.

Justice Scalia: Well, let me put another hypothetical to you, then.

Many States, maybe most States require physicians who in treating someone, find some indication of criminal activity--

Mr. Smith: Mm hmm.

Justice Scalia: --you can't get treated for a gunshot wound, for example, without having that being reported, be reported to the police.

Now, how does that differ from... let's assume they're just doing routine urinalyses of pregnant women to be sure that they don't have drugs which would make the delivery more difficult and possibly hurt the child, and they find drugs in someone.

Are they allowed to report that to the police?

Mr. Smith: If there was a routine program, as Your Honor is presenting it, without a targeted list of criteria, as they had here, a discretionary list of criteria, which is what makes this program so different--

Justice Scalia: I don't understand.

Why does that make it different?

Mr. Smith: --Because when you have a law enforcement--

Justice Scalia: Didn't they do it to everybody?

Mr. Smith: --No, Your Honor.

They didn't search everyone.

They looked at a targeted list of criteria that included discretionary elements such as inadequate prenatal care, and there's evidence in the record that some people who had inadequate prenatal care were tested and some people who had inadequate prenatal care weren't tested, precisely because the word inadequate is so--

Justice O'Connor: Is there not a routine urine specimen collected for someone in the hospital and tests employed?

I mean, that seems rather routine.

Is that not done for pregnant women entering a hospital--

Mr. Smith: --Not--

Justice O'Connor: --in connection with a birth?

Mr. Smith: --Not in... not to be tested for drugs, Your Honor.

If you mean just in general are urine samples taken, at some point during the course of prenatal care, I believe they are, but not--

Justice O'Connor: Yes, and wouldn't that routinely show up something like this, or--

Mr. Smith: --No.

Justice O'Connor: --do you have to apply special--

Mr. Smith: You have to look for it.

Justice O'Connor: --analysis?

Mr. Smith: You have to search for it, Your Honor, which is what they did here.

Justice O'Connor: And is that not routine in today's world, where drug use is more common, and the doctor might need to know what to look for with the child?

Mr. Smith: Absolutely not, Your Honor.

It's a special test that would need to be run on top of what's normally done and, in fact--

Justice Breyer: Could a doctor today, when he thinks... he has a pregnant woman, and he thinks the woman's taking drugs.

Doctors won't look at the urine to see if she's taking drugs?

Mr. Smith: --They might, Your Honor.

I understood Justice O'Connor's question to be, just as a routine matter is it always done.

Justice Breyer: Well, I don't know if it's a routine matter or not.

Where I'm having the problem is, if you came in and told me, or the other side did, that doctors normally test pregnant women for drugs, that would sound okay to me, and moreover, if you told me no, that's not what they do, they normally don't, but if they think the woman's taking drugs and she's pregnant they do, that would sound all right to me, too.

I mean, after all, they're supposed to be looking after the health of the mother and the baby.

Justice Kennedy: And I don't know why the latter doesn't make this more defensible than the former.

Mr. Smith: Because what happened here was, they incorporated a criminal sanction.

Justice Breyer: Ah, all right.

Mr. Smith: The reason they were doing the testing--

Justice Breyer: Now, if it's a criminal sanction that makes the difference--

Mr. Smith: --Yes, Your Honor.

Justice Breyer: --which is what I thought the case was about, then I would like to know your response to Justice Scalia's question.

Mr. Smith: Could you repeat the question, Your Honor?

Justice Breyer: The question was, as I understood it... he's better at repeating his question than I, but I thought--

Unknown Speaker: [Laughter]

Justice Breyer: I won't resist the chance.

Unknown Speaker: [Laughter]

Justice Breyer: The question, as I took it, is, it's a normal thing, I believe, in the medical world, at least for psychiatric social workers and for doctors, they're all told that if during a medical examination you discover that the patient is going to hurt some other person by killing, or... you know, is going to kill the teller, they're planning a robbery, you have an obligation to tell the police.

And of course, that's relevant, because the other side is saying that's just what's happening here.

We're learning that the woman has put this viable fetus, a person, at risk, all right.

These are children about to be born, and they're at serious risk, and so why doesn't this apply.

Now that, I think was... is that fair, that that was roughly the question, and why doesn't that apply?

Mr. Smith: That's not the case here, Your Honor, because this is not a case where they were treating people and in the course of medical treatment they came across evidence of a bullet or evidence of drug use.

They searched for it.

They joined with the police to determine what criteria they were going to use to do the search.

It was not a--

Chief Justice Rehnquist: Well, Ms. Smith--

Mr. Smith: --Yes.

Chief Justice Rehnquist: --the vehicle for the discovery was a urine sample, was it not?

Mr. Smith: That's right, Your Honor.

Chief Justice Rehnquist: And I suppose you have to decide when you have a urine sample you could look for different things in different ways.

Mr. Smith: That's right, Your Honor.

Chief Justice Rehnquist: And you say they have made a special search for this kind of thing.

Mr. Smith: Absolutely.

Chief Justice Rehnquist: To determine anything from a urine sample you have to make a special search, don't you?

Mr. Smith: Well, that's true, Your Honor, but the difference here is that the search is done specifically to use arrest, to use the criminal sanction and incorporate that into their treatment.

Chief Justice Rehnquist: So your complaint is not that it was done for drugs, but that the use of the discovery would be used for arrest.

Mr. Smith: That's right, Your Honor.

As soon as they started to search, as soon as they became essentially the police, searching for evidence of a crime, in order to use arrest as leverage they took on a new role and they had to... they became like a police officer searching a suspect.

Chief Justice Rehnquist: I gathered from some of your previous answers to questions that you're objecting that this test for drugs was something so highly specialized that itself it raised a flag, but it's only that it was used in connection with a desire to bring law enforcement to play that you object to it.

Mr. Smith: I don't know if I understand what you're saying, Your Honor.

I'm sorry.

Chief Justice Rehnquist: Well, you know, you take a urine specimen, and I think physicians can look for any number of things in the urine specimen.

Each one requires a specific procedure, and I don't think looking for drugs requires any different sort of procedure than to look for any number of other things in the urine sample.

Mr. Smith: Well, it requires a separate test, Your Honor.

Chief Justice Rehnquist: A separate--

Mr. Smith: Is that what you mean, or--

Chief Justice Rehnquist: --No.

I had thought that you could use a urine sample and test for any number of things with that sample.

Mr. Smith: --That's true, yes, you can test for--

Chief Justice Rehnquist: And one of them would be drugs.

Mr. Smith: --And one of them would be drugs, but it's a specific extra step that's not done unless you meet the criteria, and unless you want to use arrest as leverage.

Chief Justice Rehnquist: You mean, so far as this procedure was concerned?

Mr. Smith: As far as this policy goes.

Justice Scalia: Okay, but those criteria would be the same criteria that would determine whether it was likely that this woman was endangering her health and the health of the child.

Are the criteria any different?

Mr. Smith: Well, the criteria were changed after the policy was instituted.

Justice Scalia: Well, that doesn't--

Mr. Smith: And there's--

Justice Scalia: --Are the criteria any different from what would be reasonable criteria to determine whether the woman was at risk because of drug use or was endangering the fetus because of drug use?

Mr. Smith: --Absolutely.

They are not reasonable criteria, Your Honor--

Justice Scalia: Why?

Mr. Smith: --and the experts have testified that criteria like inadequate prenatal care, lay prenatal care, preterm labor, these are medical complications of pregnancy--

Justice Scalia: Why doesn't the--

Mr. Smith: --or they're more apt to be indicators of poverty than they are of drug use.

Justice Scalia: --Well, why doesn't that put the woman and the child at greater risk--

Mr. Smith: For drug use?

Justice Scalia: --that there's been inadequate prenatal care?

I mean, the drug use would be all the more dangerous for the woman and the child.

Mr. Smith: It may have put her at greater risk for other... not having gotten prenatal care, but it didn't give us any reasonable suspicion, reasonable grounds, probable cause, whatever level of individualized suspicion you're looking for--

Justice Ginsburg: Ms. Smith, may I go back--

Justice Stevens: --May I ask, Ms. Smith, was this the same program instituted at any other hospital?

Mr. Smith: --I'm sorry, Your Honor.

Justice Stevens: What about the other hospitals in the City of Charleston?

Mr. Smith: No other hospitals--

Justice Stevens: Do they follow the same procedures?

Mr. Smith: --No, Your Honor and, in fact, that's one of the things that shows the discretion.

The law enforcement officers in this case went to the one public hospital, joined with doctors at the one public hospital to enforce this policy.

They did not enforce this policy at the private hospitals, and they did not--

Justice Souter: Well, you're saying they didn't have the arrangement with law enforcement at other hospitals.

Mr. Smith: --That's right.

Justice Souter: But you're not saying that other hospitals as a matter of course ignored the possibility, if they had reason to suspect it, they ignored the possibility of drug use among pregnant women.

Mr. Smith: Nobody at another hospital--

Justice Stevens: We--

Mr. Smith: --That's right, Your Honor--

Justice Stevens: --Yes, okay.

Mr. Smith: --but nobody at another hospital searched their patients in order to use arrest as leverage.

Justice Ginsburg: Ms. Smith--

Justice Souter: --Well, all right, but it's the arrest as leverage then.

Mr. Smith: Mm hmm.

Justice Souter: If the doctor... as I understand it, if the doctor, acting without any prearrangement with the police--

Mr. Smith: Mm hmm.

Justice Souter: --had said, I think we have reason to worry about drug use in this patient, test the urine to see if there is an indication of drug use, and the hospital had done so, they had found such an indication, I take it in your judgment there would be no constitutional problem if they then called the police and said, we have evidence that patient X is using drugs.

Mr. Smith: And I think the reason why, Your Honor, is because there's probable cause there. There may be a lower level of suspicion, depending on the circumstances, to report to a civil authority like a Department of Social Services.

Justice Scalia: A hospital knows that it's operating in an area where there is a lot of drug use, and it just says, as a matter of sound policy, we're going to test all of the patients who come in.

We have a very high percentage.

We don't want to take a chance.

Mr. Smith: Your Honor, the same reasoning--

Justice Scalia: We're doing urinalyses anyway, we're going to add drug use to the--

Mr. Smith: --The same reasoning would apply to searches of people's homes.

There's a high crime area, we know there's a lot of drug sales that go on here, we don't like the look of these houses, they meet a criteria that--

Justice Scalia: --But this is being done for medical purposes.

That's why the hospital does it. We're concerned that there is a high incidence of drug use in this community.

We know that.

Now, you know, it's hard to tell who is and who isn't, but to be sure of being able to treat the woman and the child properly, we're going to give a urinalysis to everyone who comes in for drug use.

Mr. Smith: --But they can't... the difference here, Your Honor, is that they set out to target certain people, to test certain people in order to use arrest as leverage, not simply for medical purposes any more, and the criteria, the list of criteria is a discretionary list of criteria that's now being applied in the context of a police search, which is what made Delaware v. Prouse an improper program.

Justice Breyer: What's hard for me is to figure out what you mean by this leverage point. The... imagine you have a community with a high incidence of tuberculosis.

Mr. Smith: Mm hmm.

Justice Breyer: Is there anything wrong with doctors saying, you know, we're just going to regularly test our pregnant women to see if they have it?

Mr. Smith: Without their consent?

Justice Breyer: There... you feel... I don't know... the consent's a separate issue here, and I suppose that doctors normally do get consent--

Mr. Smith: If they were testing people--

Justice Breyer: --for the test anyway.

Mr. Smith: --If they were testing people for medical purposes and they had consent to medical care, then there's not a problem.

Justice Breyer: Fine.

All right.

Now, suppose that the same... it's not tuberculosis, but it's simply drug use.

Mr. Smith: Right.

Justice Breyer: Okay.

Mr. Smith: It's not... it is a problem, Your Honor, if the purpose of the search--

Justice Breyer: But I'm... just follow my reasoning.

Mr. Smith: --Yes, I'm sorry.

Justice Breyer: All we're doing is testing the woman. For tuberculosis it's okay, right, with consent?

Mr. Smith: If it's medical treatment, yes.

Yes.

Justice Breyer: Same with drug use.

Mr. Smith: If it's medical treatment--

Justice Breyer: All right, fine.

Mr. Smith: --and there's consent to do that, yes.

Justice Breyer: Now, if the doctor discovers in the course of a test that the person's about to commit a crime, he can report it to the police, right?

Mr. Smith: At that point he has probable cause or individualized suspicion.

Justice Breyer: All right.

So if you're that far down the road--

Mr. Smith: Uh huh.

Justice Breyer: --then you give the test, you discover the result, and now you report it to the police, and you're saying all that's okay, and so if there's something... if you're saying all that's okay, what's different about this case?

Mr. Smith: What's different here is that the search was conducted without probable cause.

Justice Breyer: Those are conclusions, but what I want to know is, what's different from... what happened in the world that's different from what I just said?

Mr. Smith: What's happened--

Justice Breyer: They give the test, they discover there's the drug use, and they report it to the police.

Mr. Smith: --What happened that's different is that different people are tested, because we have discretionary criteria that are being applied in a law enforcement setting, so we have--

Justice O'Connor: Well, let me ask you this with reference to this question of Justice Breyer. I thought, and correct me if I'm wrong, that the district court found the hospital personnel conducted the urine drug screens for medical purposes, wholly independent of an intent to aid law enforcement efforts.

Now, has that been determined to be an invalid finding?

Mr. Smith: --He instructed the jury, Your Honor, that there was a dual purpose to the test, that as soon as there was also a law enforcement search, then the field changed, the search changed, and the Fourth Amendment applied.

Justice O'Connor: But was there a finding at the... by the district court that it was conducted for medical purposes, independent of the intent to aid law enforcement?

Mr. Smith: In the context of jury instructions, where he then said these were conducted for both purposes, Your Honor, yes.

Justice Souter: Did you, or did your counsel at the trial level if it wasn't you, ever ask for a finding by court or jury that any of the criteria used to determine the urine... that this test would be made of the urine samples was not a criterion that was medically appropriate?

Mr. Smith: I don't believe there was a request for a finding, but there certainly was medical testimony on that fact, Your Honor, from Ira Chasnoff, from Dr. Chasnoff.

Justice Souter: But we don't have any finding on it by court, or by implication of the jury verdict, one way or the other?

Mr. Smith: That's right, Your Honor.

Unknown Speaker: Okay.

Mr. Smith: The jury verdict--

Justice Ginsburg: Ms. Smith, I wish you would clarify one point--

Mr. Smith: --Okay.

Justice Ginsburg: --because it's gotten terribly confused here.

Mr. Smith: Okay.

Justice Ginsburg: I thought that you said the only thing that's wrong with this program was that it was driven... it was a means that the police were using to apprehend people engaged in criminal conduct.

You said in answer to my question, I thought, if a doctor's just testing for drugs so they'll know how to treat the woman and the child, that's okay.

If the doctors took that test and gave it to the Social Service people, that's okay.

So all of that is okay, and we shouldn't, I think, go back and qualify that unless you mean to.

I thought when you started out you said this was a program driven by the police.

It was their way of getting people who had taken drugs.

That's one thing.

Mr. Smith: Mm hmm.

Justice Ginsburg: So I thought you said that's what makes... infects this whole thing. If you didn't have the police driving it, it would be okay for medical purposes and for social welfare purposes.

Now, is that your position?

Mr. Smith: That is my position, Your Honor, and I didn't mean to change from that.

All I meant to do was clarify why I thought it was okay, and not a Fourth Amendment violation, to then turn it over once you have some evidence and you can meet the standards of the Fourth Amendment.

But it's a different--

Justice Scalia: Did the police approach the hospital, or did the hospital approach the police to set this program in--

Mr. Smith: --The original call that went, Your Honor, was from the hospital to the police, but then it was a very preliminary inquiry, and a task force was formed consisting of members of all the departments, and the task force was actually chaired by law enforcement, by the Chief of Police and by the Solicitor, and the policy as first written was written by law enforcement, by the police.

Justice Scalia: --But the initiative came from the hospital.

Mr. Smith: The question--

Justice Scalia: The police didn't show up at the hospital one day and say, you know, we'd like to find some way to bust your patients here.

Mr. Smith: --No.

The--

Justice Scalia: It was somehow the doctors who were concerned that there was a problem with drug use by pregnant women.

Mr. Smith: --The question... that's right, Your Honor.

The question originally came from the hospital to the police, but the answer, the answer of how to cope with this came from the police, and they wrote the policy, and they taught the hospital how to maintain the chain of evidence at the beginning of the search for people who fell within a list of discretionary criteria, and they enforced this policy at this one hospital and not at any other hospital.

Unknown Speaker: Okay--

--Suppose I thought that there were probable--

Justice Stevens: --could extend the policy to other hospitals?

Mr. Smith: I'm sorry, Your Honor.

Justice Stevens: Was there ever any effort made to extend the policy to other hospitals?

Mr. Smith: No, Your Honor, there was not.

Justice Stevens: Was there any explanation why not?

Mr. Smith: No, Your Honor, there was not.

Justice Souter: I take it that had there not been the formality of the prearrangement, the agreement with the police, that the result would be different in this case.

In other words, if they had made the phone call and the police hadn't said, yeah, the way to do it is to maintain the chain of custody and so on, on your own reasoning there would be no constitutional violation in this case.

Mr. Smith: I think that's true, Your Honor, but the purpose of the warrant requirement... at least for the people who tested positive and they then were reported, but for the people who didn't test positive and who were searched, we don't know who those people were, there was certainly a constitutional violation there, because they were being searched for... no, I'm sorry, Your Honor, I'm wrong.

Justice Souter: Okay.

Mr. Smith: Because they weren't being searched for law enforcement purposes.

Justice Souter: So there's... there--

Mr. Smith: You're right.

Justice Souter: --It is simply the agreement, in effect--

Mr. Smith: It's the agreement, and--

Justice Souter: --that makes the difference between constitutionality and unconstitutionality.

Mr. Smith: --And it's a list of discretionary criteria being applied by police officers. It's the difference between Delaware v. Prouse and Sitz.

Justice Souter: No, but I mean, as I understand... maybe I misunderstood your answer to Justice Ginsburg a minute ago.

You said in so many words it's the police component of this scheme that taints it, and I understood that to at least imply sort of the same point that I was getting at with my question, that there's no finding here, there's no reason for... we cannot assume here that the criteria for taking samples or for testing samples were criteria that were not medically appropriate.

Maybe not all of them were used before, but we have to... I think we have to assume, as the case comes to us and as you present your argument, that the reasons the hospital used for determining that a sample would be taken and the criteria for testing that sample for drug presence were medically appropriate criteria.

Mr. Smith: Well, there's no finding on that from the district court, and the only testimony shows that it's a list of discretionary criteria that is not liable to really find people who use cocaine--

Justice Souter: So when you say that in so many words it's the police component of the scheme that taints it, what you mean to say is that part of the very... the very determination of whether to test or not was modified from a medically appropriate set of criteria to at least a partial law enforcement set of criteria.

Is that your argument?

Mr. Smith: --I think the difference is, Your Honor, that the--

Justice Souter: No, but wait a minute.

Mr. Smith: --Yes.

Justice Souter: I want to understand you.

Yes or no, is that your argument?

Mr. Smith: I think it's not quite my argument, because the issue I think is that the discretion when it's used by a doctor for medical purposes... doctors have discretion and that may be appropriate in the context of medicine, but once discretion is used by police officers for a law enforcement purpose, the world changes.

Justice Souter: You're saying the doctor has become a police agent.

Mr. Smith: Absolutely, Your Honor.

Justice Souter: So that the doctor must be treated as a police officer.

Mr. Smith: Absolutely, Your Honor.

Justice Souter: Okay.

Mr. Smith: I'd like to reserve the rest of my time for rebuttal.

Argument of Robert H. Hood

Chief Justice Rehnquist: Very well, Ms. Smith.

Mr. Hood, we'll hear from you.

Mr. Hood: Mr. Chief Justice, and may it please the Court--

The issue presented is whether urine drug screens for medical purposes were reasonable under the special needs doctrine and as consensual searches.

Justice Stevens: May I just, at that very point, I thought we had to assume for purposes of analyzing this issue that there was no consent.

Mr. Hood: Your Honor, we raised the issue of consent at trial.

We proved that each and every plaintiff consented.

The jury found they consented.

Justice Stevens: The jury found consent.

Mr. Hood: Yes, sir.

Justice Stevens: But then in affirming the jury verdict the court of appeals did not reach the issue of consent and said--

Mr. Hood: Correct.

Justice Stevens: --and in fact held that even if there were no consent, these searches were proper under the special needs doctrine, is that not right?

Mr. Hood: Yes, Justice Stevens.

Justice Stevens: So don't we have to assume for purposes of analyzing the legal issue that there was no consent, and if there's an issue to be... if we disagreed with the court of appeals, in other words, we'd send it back to say whether there was evidence supporting the jury verdict.

Mr. Hood: Well, sir, I don't agree with that, because I believe under the United States v. New York Telephone Company, decided in 1977, the Court is not limited to affirm on an issue that is not really--

Justice Stevens: Well, no, we could affirm--

Mr. Hood: Yes, sir.

Justice Stevens: --on the ground that there was consent, but the special needs... and then we wouldn't need to reach the issue of special needs.

Mr. Hood: Correct.

Justice Stevens: But if we were to confront the issue of special needs, we do that on the assumption that we don't have to decide whether there was consent or not, which is tantamount as a matter of law to saying we assume, in analyzing this issue, that there was no consent.

Mr. Hood: Correct, and that's what the Fourth Circuit did, Your Honor.

The policy purpose was to prevent pregnant women from using cocaine.

Justice Ginsburg: How did that work when the woman in question was no longer pregnant, had given birth to the child, and was taken from the hospital just after birth?

You can't prevent anything when a child is born.

As I understand it, most of these plaintiffs were women who did not come in for prenatal care, but were tested at the time they came into the hospital to give birth, and then one day after the birth were removed to the jail.

Is that not the case, that most of these arrests took place after a child was born?

Mr. Hood: No, Your Honor.

Most of them were not after birth. Several of the women... four of them were before the policy became the protocol of Medical University, so what was going on with those four was, they were turned over to substance abuse, or DSS.

Because they were tested positive for cocaine, it was child abuse.

The protocol went into--

Justice Ginsburg: I may have misspoken when I said most. Were there women among these plaintiffs who were tested at the time of childbirth and who were sent to jail the day after the child was born?

Mr. Hood: --Yes, Your Honor, there were.

However--

Unknown Speaker: So at least as to those women I don't see a protective purpose.

Whatever damage was done was done.

Mr. Hood: --The purpose there, Your Honor, was child abuse.

The child had been subjected to cocaine, was born a cocaine baby with brain damage and other damage from the cocaine.

The Department of Social Services took over--

Justice Ginsburg: Was that part of the showing, that these children were, in fact, brain damaged?

Mr. Hood: --I didn't hear the premise.

Justice Ginsburg: Was there a determination that the child was, in fact, brain damaged in any of these cases?

As I understand it--

Mr. Hood: If we didn't have time--

Justice Ginsburg: --no one inspected the child.

Mr. Hood: --for the life of the policy, to answer that question, we didn't do the follow up studies with these individuals, 10 individuals.

But of these 10, only five of them were actually under the protocol adopted by the board of trustees of Medical University on November 27, 1989 and each of those five signed a letter, when they tested positive, from the Solicitor that said, I understand that if I test positive again, I will be arrested and I will be prosecuted.

They went home.

They came back a week, or two, or three later, tested positive again, Justice Ginsburg and yes, they were arrested.

They were put in jail, not only for the illegal crime of using cocaine themselves, but for what they were doing to their child, and they knew they were going to be arrested in each instance.

Justice Ginsburg: But I thought that was irrelevant in the case, because you... perhaps I have the facts wrong, but I thought they were women who did not come in before, who came in to give birth, tested positive, the only thing that they signed was the kind of consent form that we all file when we go to the hospital for a procedure--

Mr. Hood: Well, Your Honor, the... one or two of the women meet that category, and those women were before the Medical University board adopted this protocol.

The protocol was medical.

The doctors wrote the protocol.

There were nine criteria.

The district court found that those criteria were medically valid and good.

The district court found that as to consent, we had to make one step further than that Solicitor letter.

We had to show that each of those 10 plaintiffs knew that they could be arrested.

The jury found that they knew that.

That issue was briefed to the Fourth Circuit.

The Fourth Circuit went and affirmed the case on special needs.

This case is so much stronger than any opinion the United States Supreme Court has written on special needs for two reasons.

We have a medical, independent clinical reason to test here.

We have child abuse, and a reporting statute that's involved.

We're not just stopping someone to see if they're drunk or not.

We are trying to stop a woman from doing irreparable, major harm to her child in utero.

Justice Ginsburg: --I still don't see how that works out when the woman has had a child. I can see if you were making an argument about intervening at an early stage in pregnancy to help the woman, but I don't understand that argument at all when the child is already born.

Mr. Hood: Well--

Justice Scalia: You say there are no such children except before the protocol was adopted?

Mr. Hood: --Yes, Your Honor. The... if you would like, we can go through each one of these individuals, and I'm prepared to do that if you want to, but what I wanted to say about special needs and what the Fourth Circuit did and what this Court's done with special needs is, what we're dealing with here is a tragic crisis in society in 1989, a true medical epidemic.

In the words of the plaintiffs--

Justice Stevens: But in only one of the city's hospitals, as I understand it.

Unknown Speaker: [Laughter]

Justice Stevens: But in only one of the city's hospitals.

Mr. Hood: --Your Honor, we only have one teaching hospital in Charleston.

It's the Medical University of South Carolina.

It's owned by the State.

Justice Ginsburg: How about other hospitals where pregnant women came to give birth?

Mr. Hood: The Solicitor at the time approached the other hospital, large hospital in our community, wrote the hospital.

This lawsuit came along and everything was stopped at my request.

Justice Ginsburg: The Solicitor asked the other hospital--

Mr. Hood: If they would consider adopting their board of directors, of trustees would adopt the policy, yes.

Justice Ginsburg: --And they did not, they did not adopt such a policy.

Mr. Hood: Correct.

Justice Scalia: Because of the pending lawsuit here.

Mr. Hood: Yes, Your Honor.

Justice Ginsburg: Well, we don't know why.

I mean, you can--

Justice Scalia: --You said that was the reason.

Mr. Hood: I can't... there's no testimony in the record to answer your question, but--

Justice Ginsburg: Yes, so you're... you're making--

Mr. Hood: --if I could be allowed to testify, I believe that's the reason.

Justice Scalia: --There's also no testimony in the record that any other hospital was approached.

Mr. Hood: Your Honor, there is a reference on page 1128 where there's testimony, Justice Scalia, about David Swacky, the Solicitor at the time, approaching Roper Hospital.

Justice Scalia: And Roper Hospital refusing.

Mr. Hood: Not as to what they did, just that they were considering it.

Then the lawsuit came along.

Justice Souter: Did Roper Hospital have any comparable protocol of testing, not of informing the Department or the police, but did they have any comparable protocol for testing pregnant women prior to the time they were approached by the Solicitor?

Mr. Hood: Justice Souter, Roper Hospital is a charitable hospital owned by doctors, and there are no other State owned hospitals in Charleston where--

Justice Souter: I don't care whether it's State owned or not. The point I'm trying to get at is the medical appropriateness, or the lack of an indication of medical appropriateness for what was being done here, and my question is, if you know, or if it's in the record, is there any indication that Roper Hospital was following some kind of a protocol for treating for drug use among pregnant patients before they were approached by the Solicitor?

Mr. Hood: --The answer is yes.

Every hospital in South Carolina follows the child abuse statute.

The doctors are absolutely required to.

Justice Souter: Well, the child abuse statute, as I understand it, requires reporting.

Mr. Hood: Correct.

Justice Souter: But does the child abuse statute impose a protocol of medical testing on doctors who treat pregnant women?

Mr. Hood: No, it does not.

Justice Souter: Okay. So what is the indication that at Roper Hospital they were following a protocol of testing urine for drug use when a pregnant woman came in?

What's the record tell us?

Mr. Hood: There's nothing in this record--

Justice Souter: Okay.

Mr. Hood: --but every hospital tested urine of every pregnant woman because they need to know what's in her body so they can treat her.

They're going to give her anesthesia.

Unknown Speaker: All right.

Justice Scalia: For drugs?

Do they test it for drugs? I mean, you know, it isn't an omnibus test.

You have to decide what you're going to test for.

Do they all test for drugs?

Mr. Hood: If the doctors suspect the use of drugs in any hospital, hopefully in this country, they test for drugs--

Unknown Speaker: Well, I'm--

Mr. Hood: --so they can treat the patient properly.

Justice Souter: --I expect that is so, but the protocol here went far beyond a particularized suspicion as a reason for doing... running that urine test, and I take it that the answer, and I don't want to spend a lot more time on this, but I take the answer is, the record does not tell us whether Roper Hospital was following any kind of a comparable protocol of testing most urine samples of most women coming in for prenatal care, is that correct?

Mr. Hood: Correct, Your Honor.

Justice Souter: Okay.

One last question.

You indicated that there were findings or determinations of some sort with respect to the hospital in this case that the criteria were medically appropriate.

Where do we find those determinations?

Mr. Hood: By the district judge himself.

Justice Souter: What did... did he make specific findings of fact?

Mr. Hood: Yes, sir.

Judge C. Winston, our senior district judge in South Carolina, on page 1415 of the joint appendix states, Medical University adopted these medically valid criteria to avoid the very subjective test about which the plaintiffs complain.

Judge Houck, at the conclusion of this 5-week trial, made very... and it's in those pages, the 1400 numbers... about each and every issue that was raised in this case.

He took us one step further on consent than I think this Court requires.

He required us to convince the jury that each person understood that their... if they tested positive, they would be arrested.

Justice Ginsburg: And that... but that... the... far as the consent is concerned, it was an argument which, as you said, the Eleventh Circuit didn't address, that there was insufficient evidence of that consent, and I looked at the consent form.

It doesn't say anything about police.

Mr. Hood: The consent form says, I consent to having... to the testing of drugs, and there are two consent forms, one in the hospital, one in the clinic.

They both say the same thing.

Every patient signed that.

Then, when they suspected under this nine medical diagnoses, these differential diagnoses, that the patient was using cocaine, then a counselor met with the patient, showed her a video, explained to her the consequences, the dire, staggering consequences to her child and herself of using cocaine, basically pled with her to stop doing it, got her to sign this Solicitor letter, and sent her to substance abuse, and if she went, great, and that's what happened to 90 percent of them.

Justice Ginsburg: What happened to the people who didn't come in for prenatal care, who came in at the time of labor, and... well, you tell me... and tested?

Mr. Hood: If they tested positive they were given what I just said, and--

Justice Ginsburg: Well, tell me when they were given that, because it seems it would be rather stressful situation in which to try to get informed consent from someone.

Mr. Hood: --Well, you have to put it in the context of what was going on.

The reason they were told is because it was mandatory.

The hospital board of directors adopted a protocol that was mandatory and nondiscretionary, once you met that criteria, those medical criteria.

Justice Ginsburg: Yes, well, you're stepping over to another question.

The one I asked concerned the argument that the Eleventh Amendment didn't address the sufficiency of the evidence of consent, and I was simply suggesting to you that there might be a question of the sufficiency of evidence of consent in the case of women who never came to the hospital for prenatal care, who came in while they were in labor, and what they consented to, what they signed at that point, there might be reason to suspect the legitimacy, the informed nature, the voluntary nature of such consent.

That's all I meant to indicate.

Mr. Hood: Yes, Your Honor.

Unknown Speaker: Mr. Hood, I can't find your--

Justice O'Connor: --Well, I thought that we established that we take this on the assumption there was no consent.

The court of appeals didn't address it, and for purposes of deciding special needs we just assume no consent.

Isn't that correct?

You already admitted that.

Is that right?

Mr. Hood: No, Your Honor, I don't concede there was not consent.

In fact, I argued--

Justice O'Connor: No.

No, you misunderstand me.

Mr. Hood: --I'm sorry.

Justice O'Connor: For purposes of deciding the issue on which we granted certiorari, special needs exception--

Mr. Hood: Yes, Your Honor.

Justice O'Connor: --we assume for purposes of deciding that there was no consent, because consent was not reviewed by the court of appeals.

The court of appeals decision just said this was reasonable under the Fourth Amendment.

Is that right?

I thought we aired this with Justice Stevens at the outset, and yet we're getting bogged down in consent, and I just want to know where we are.

Mr. Hood: Justice O'Connor, in my humble opinion we have to affirm the lower court special needs.

We have consent.

We have dual purpose but we do not... State actors--

Justice O'Connor: I thought that for purposes of deciding the question on which we granted certiorari we simply assume there was no consent.

It will go back to the court of appeals, depending on how we resolve it, to determine whether there was consent.

Suppose we say it was unreasonable.

It would go back, then, for review of consent.

I assumed that that was how we were deciding it.

I thought that's what you reviewed with Justice Stevens when you began your argument.

Am I wrong?

Mr. Hood: --You're correct, Your Honor, in that certiorari was granted on one issue, and that is correct.

Justice O'Connor: Yes, okay, and on that issue what support in our case law do you find that supports a special needs exception where law enforcement is tangled up with the search?

Is there any case of ours where we have so held?

Mr. Hood: Your Honor, each of the special needs cases apply directly, starting with the opinion of the Court in TLO and Your Honor's own concurring opinion there, with Justice Powell.

Justice O'Connor: Yes, well, we reserved the answer to the question in TLO, whether it would be the same answer if law enforcement were involved.

Mr. Hood: We then jump to the Griffin case from Wisconsin, the Sitz case, and in those opinions law enforcement was involved, and in our case the role of--

Justice O'Connor: Not in the conduct of the search, were they--

Mr. Hood: --Nor was it in our--

Justice O'Connor: --or in the determination to have it?

Mr. Hood: --In our case law enforcement was not involved at the time of the search.

They had nothing to do with the search.

Justice O'Connor: Well, I thought the procedure was developed with the assistance of the police, in part, to ascertain whether there was drug use so that people could be charged.

Mr. Hood: That's the other side's argument.

That was not the proven facts.

The facts--

Justice Breyer: As I'm thinking about this at the moment on this exact point, that if you have an unconsented turning over of private medical information to the police, there must be something special about the circumstance.

Now, the AMA, and the most famous case in this area, called Tarisoff, both try to define that circumstance, and that circumstance, as the AMA, or as Tarisoff defined it, involves when a patient threatens to inflict serious bodily harm to herself or a third party and there is a reasonable possibility that the patient will carry out that threat, so I thought that you either have to bring yourself within that exception, or you lose, and what I'm worried about at the moment is how can you bring yourself within that exception when you're faced with all the material in the amicus briefs and all the studies that suggest that this type of program does not help third parties, namely the fetus.

Rather, there is a question as to how much cocaine abuse hurts the fetus, particularly compared to the situation where the mother does not request prenatal care, and that this kind of program, because of the later problem, the latter problem, probably hurts more fetuses than it helps.

Now, faced with that kind of data, and I see no data on the other side, I don't see how you can bring yourself within the Tarisoff exception, and if you can't do that, I don't see how you win the case.

That's my question.

Mr. Hood: --Your Honor, we come within the requirements that you have outlined.

Justice Breyer: Mm hmm, all right.

You come within Tarisoff.

Then you're arguing that you're within Tarisoff.

Fine.

How do you get there, given this mass of data that... you know, that they refer to in the amicus briefs, that... and I've tried to look up a little independently, where I've come to is the conclusion... I'm not a doctor or an epidemiologist, but it seems to me that the studies on cocaine abuse are pretty inconclusive and... as to how they affect the fetus, and even if they aren't, they're pretty one sided, the studies, that this kind of thing hurts the fetus because mothers don't come in.

Mr. Hood: If Your Honor has a chance to look at page 314 of the joint appendix, your question will be answered by the plaintiff's lead expert, Dr. Ira Chasnoff, wherein he said there was an urgent need for the medical community to do something.

This was a major crisis, an epidemic in the United States, and we tried to down in Charleston, and it worked, and 90 percent of the people that had this awful addiction and were doing what they were doing to their children were helped, and it worked.

We got the lawsuit, and we stopped, and here we are.

Justice Breyer: Well, am I supposed--

Justice Kennedy: --the Tarisoff case, there had been no crime committed.

In this case there had been a crime committed.

Mr. Hood: Correct, Your Honor.

Justice Breyer: Oh, so in other words you think that the Fourth Amendment permits the police to go to a doctor and to ask the doctor to turn unconsented... unconsented private medical information over to the police about a past crime?

In other words, the Fourth Amendment permits doctors to become agents in private... you know, private patient relationships and suddenly turn over everything to the police, even though no future risk is at stake?

Mr. Hood: That's the other difference of our case.

It's a child abuse case, where the doctor has to do it.

There is no privacy.

The doctor is violating the law if he doesn't turn it over.

Unknown Speaker: Mr. Hood, don't you have a law--

--And that's true with gunshot wounds, and it's true with teachers who see children that have been beaten by their parents.

Mr. Hood: Yes, Your Honor.

Justice Scalia: And don't you have a law that anyone treated for a gunshot wound by a physician, the fact of that treatment has to be--

Mr. Hood: Yes, Your Honor.

Justice Scalia: --told to the police?

Of course.

Mr. Hood: Just like if she, if a pregnant woman--

Justice Scalia: It happens all the time that a doctor has to turn somebody in.

You gave us a citation earlier for the statement of the district judge to the effect that these protocols were medically necessary.

You said pages 14 to 15 of the joint appendix.

I can't find it.

Mr. Hood: --The judge, findings of fact start on page 1408, Justice Scalia.

Justice Scalia: 1408.

You said page 14.

1408.

Mr. Hood: I apologize.

I talk funny.

1408--

[Laughter]

The order ends at 1417, Your Honor.

Justice Ginsburg: It seems there were a lot of doctors, then, violating South Carolina law if only in this one hospital were doctors engaged in this practice, and that's a little odd.

They wouldn't need this protocol, and they wouldn't need these meetings with law enforcement people, if the law in fact required when they test, and one of the things they test for is drugs, that they turn over that information, but as far as this record shows it's only this one hospital, and only pursuant to the protocol, so that doesn't fit in with your statement that... in answer to some questions that yes, the doctors have an obligation to and they do.

Is there anything to show that apart from this one hospital and pursuant to this one protocol, that doctors who find pregnant women testing positive for drugs are turning over that information to the police?

Mr. Hood: Justice Ginsburg, I believe, and I can't cite a page, that several of the experts that we put on the stand in the 5-week trial said just that.

However, you have to look at the patient base that this hospital, the State hospital--

Justice Ginsburg: Say just that.

Just... I want to be precise about, said just what?

They said other hospitals, other obstetrician gynecologists are turning this information over to the police because that's what a doctor's obligation is?

Mr. Hood: --Well, it never... this issue never came up at trial, but... except to the extent that this was a teaching hospital, and every young physician in the OB department was taught about that.

Justice Ginsburg: I'm not asking about this hospital.

I'm asking about any other place.

This place has a protocol that the police have given to this hospital.

Mr. Hood: Not the police.

I hate to interrupt you, but the police did not do the protocol.

The doctors did it.

Justice Ginsburg: In which the police participated.

There were meetings--

Mr. Hood: All the police did was say, you've got a duty and a responsibility here, and they--

Justice Ginsburg: --Did they say it to any other obstetrician gynecologist, as far as the record shows it seems to me you would have certainly put that into the record if it existed, but what comes to us is one hospital, and... with the nurse who asked if we could get... can we get the police involved.

There's not one shred of any indication that other hospitals... this is the law.

The law requires them to do it.

Mr. Hood: --Justice Ginsburg, the question that you're asking me was not raised at trial by anyone, nor answered by anyone at trial, but the answer to your question is, we have, like every State, a child abuse statute, and if a doctor in any practice observes child abuse, they have an affirmative duty to report it.

Justice Souter: Mr. Hood, would you comment on this point?

With minor variations, I think we're pretty much agreed that if in the normal course a doctor obtains the evidence that a patient is about to commit some kind of imminent violence or damage to another person, or if a doctor obtains evidence such as gunshot evidence which clearly points to a crime, that the doctor is permitted and obligated to turn that evidence over to the police and the police can use it.

Start with that premise.

The argument that I want you to comment on is this.

That kind of a rule was derived in situations in which the doctors are simply going about their business, acting independently as physicians.

In this case, however, the doctors, as a result of their arrangements with the police, had become in effect agents of the police, and they were acting in a dual capacity.

They had their medical responsibilities, but they were acting under an agreement with the police to look for certain things and to turn over information if they found it, and the argument is that in that case the police should not be able to use the evidence unless the evidence has been searched for and seized in accordance with the same rules that the police would have to follow if they were doing it in the first place because otherwise, in effect, the co option of the medical community will eliminate the Fourth Amendment whenever the police can use the doctors.

What's your response to that?

Mr. Hood: The police were never the agent of the hospital.

The police were purely a means or method.

Justice Souter: Well, let's assume that we found... let's just assume that we found, as a kind of a constitutional fact on this record, that an agency relationship had been established.

What is your response to the argument?

Mr. Hood: We strenuously objected it was established.

If it were established to the satisfaction of anyone, and I don't believe it was at trial or at the Fourth Circuit, then the role of the police, they are not determining who is tested.

They are not determining who gets the test results.

They are not determining the counseling of the patient.

They're not determining whether the patient makes the counseling sessions.

They're not determining whether the patient signs a consent form, which every one of them did.

They're not determining whether the patient actually makes the substance abuse clinic--

Justice Souter: I think what you're arguing is that there's no basis for finding that kind of agency here, but if we make the assumption that there is a basis, what is your response to the argument that in that case the criteria for police receipt and use of evidence has got to be the criteria that would apply even if the doctors weren't involved because otherwise the Fourth Amendment gets swallowed up in the agency relationship?

Mr. Hood: --That the Fourth Amendment doesn't apply, that the Court adopt the case of Attson from the Ninth Circuit, wherein it said the dual purpose applies, and if there are two purposes and one's medical and one's not--

Justice Souter: No, but this--

Mr. Hood: --it's okay.

Justice Souter: --Okay, and so your answer... I mean, I guess I don't understand the argument.

You're saying yes, there's a way to say that the dual relationship doesn't affect it, but is there a good reason for us not to fear that this agency kind of relationship will swallow up the Fourth Amendment standards that otherwise the police would have to satisfy?

Mr. Hood: It didn't happen in this protocol, in this policy.

It never happened.

All they did was to help... these people helped themselves.

Every one of them ended up getting off of cocaine, and it helped.

You know, one use of cocaine can kill the baby.

Justice Scalia: Mr. Hood, I guess the finding of fact you're referring to is on page 1410, and I assume that your colleague will address this in rebuttal.

The policy, the protocol was applied in all maternity departments at MUSC.

Its goal was not to arrest patients, but to facilitate their treatment and protect both the mother and unborn child.

That's a finding of fact.

Mr. Hood: Yes, Your Honor, that's correct, Justice Scalia.

That's what Judge Houck found.

Law enforcement was not the purpose of this thing at all.

It was purely the tragedy of a medical crisis of these pathetic babies coming into the world and trying to stop it, and trying to help them stop it.

They couldn't help themselves, some of them.

Thank you.

Rebuttal of Priscilla J. Smith

Chief Justice Rehnquist: Thank you, Mr. Hood.

Ms. Smith, you have about 3 minutes remaining.

Mr. Smith: Thank you, Your Honor.

Three brief points, Your Honor.

What distinguishes this policy from a medical protocol is that it was designed by and for law enforcement, and implemented by the hospital for the purposes of crime detection.

To say that the medical criteria was medically appropriate, as I said, is different from saying that it establishes probable cause or individualized suspicion, or allows the hospital officials therefore to search, as agents of the police, under a police policy that incorporates criminal sanctions for evidence of a crime, and to turn that right over to the police.

And if it was probable cause, if they had probable cause here, why not obtain a warrant?

Why not test your criteria with an objective magistrate to ensure that you're not the discretion that's allowed in those criteria is not being abused.

That's the purpose of the warrant requirement, is to protect against that kind of abusive discretion, and that's exactly the discretion we see that was used in this policy, where women who met the criteria were not tested, and women who didn't meet the criteria, perhaps, in some cases were.

We don't know.

We do know that some who met the criteria weren't tested.

In terms of the finding of fact, in the title VI opinion the court, in addressing the policy as a whole, talks about the goal of the policy, the ultimate goal of the policy, but when he's looking, when the trial judge looked at the purpose of the search, he recognized the dual nature of that searched... search, that there was a medical purpose and a law enforcement purpose, and that's what brought this search under the Fourth Amendment, and that's what makes this policy so insidious.

What happened here is that the doctors used the promise of confidentiality in the private physician patient relationship to obtain information from their patients in order to turn it over to the police.

That's all they did here, and when they did that, when they took on the mantle of the police, they had to obtain a warrant based on probable cause, and they had to do that for all the reasons this Court enunciated in the special needs doctrine, when it limits that doctrine so that discretion will not invade police actions, so that Delaware v. Prouse is not okay, Sitz is, because of that discretion.

And that's why, even if this Court were to apply the balancing test here, we've got a case that's got discretionary criteria, we have a significant intrusion on the body, not a minimal intrusion like we had in Sitz, and we have no diminished expectation of privacy.

In fact, we have a heightened expectation of privacy in our doctor patient relationship, and as the amici point out much better than I could, that's what's at stake in this case.

So we ask this Court--

Chief Justice Rehnquist: Thank you, Ms. Smith.

Mr. Smith: --Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.