BUFORD v. UNITED STATES

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Syllabus
BUFORD v. UNITED STATES
certiorari to the united states court of appeals for
the seventh circuit
No. 99–9073. Argued January 8, 2001—Decided March 20, 2001
The United States Sentencing Guidelines, as relevant here, define a career
offender as one with at least two prior felony convictions for violent or
drug-related crimes and provide that a sentencing judge must count as
a single prior conviction all “related” convictions, advising that they are
“related” when, inter alia, they were consolidated for sentencing. The
Seventh Circuit has held that because two prior convictions might have
been consolidated for sentencing, and hence related, even if a sentencing
court did not enter a formal consolidation order, a court should decide
whether such convictions were nonetheless functionally consolidated,
meaning that they were factually or logically related and sentencing
was joint. Petitioner Buford pleaded guilty to armed bank robbery.
At sentencing, the Government conceded that her four prior robbery
convictions were related, but did not concede that her prior drug convic-
tion was related to the robberies. The District Court decided that the
drug and robbery cases had not been consolidated, either formally or
functionally, and the Seventh Circuit affirmed, reviewing the District
Court’s decision deferentially rather than de novo.
Held: Deferential review is appropriate when an appeals court reviews a
trial court’s Sentencing Guideline determination as to whether an of-
fender’s prior convictions were consolidated for sentencing. The rele-
vant federal sentencing statute requires a reviewing court not only to
“accept” a district court’s “findings of fact” (unless “clearly erroneous”),
but also to “give due deference to the court’s application of the guide-
lines to the facts.” 18 U. S. C. § 3742(e) (emphasis added). The “defer-
ence that is due depends on the nature of the question presented.”
Koon v. United States, 518 U. S. 81, 98. Although Buford argues that
the nature of the question here—applying a Guideline term to undis-
puted facts—demands no deference at all, the district court is in a better
position than the appellate court to decide whether individual circum-
stances demonstrate functional consolidation. Experience with trials,
sentencing, and consolidation procedures will help a district judge draw
the proper inferences from the procedural descriptions provided. In
addition, factual nuance may closely guide the legal decision, with legal
results depending heavily upon an understanding of the significance of
case-specific details. And the decision’s fact-bound nature limits the

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60 BUFORD v. UNITED STATES
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value of appellate court precedent, which may provide only minimal help
when other courts consider other procedural circumstances, state
systems, and crimes. Insofar as greater uniformity is necessary, the
Sentencing Commission can provide it. Pp. 63–66.
201 F. 3d 937, affirmed.
Breyer, J., delivered the opinion for a unanimous Court.
Dean A. Strang argued the cause for petitioner. With
him on the briefs were Brian P. Mullins and Robert A.
Kagen.
Paul R. Q. Wolfson argued the cause for the United
States. With him on the brief were Solicitor General Wax-
man, Assistant Attorney General Robinson, and Deputy
Solicitor General Dreeben.
Justice Breyer delivered the opinion of the Court.
This case raises a narrow question of sentencing law.
What standard of review applies when a court of appeals
reviews a trial court’s Sentencing Guideline determination as
to whether an offender’s prior convictions were consolidated,
hence “related,” for purposes of sentencing? In particular,
should the appeals court review the trial court’s decision def-
erentially or de novo? We conclude, as did the Court of Ap-
peals, that deferential review is appropriate, and we affirm.
I
A
The trial court decision at issue focused on one aspect of
the United States Sentencing Guidelines’ treatment of “ca-
reer offenders,” a category of offender subject to particularly
severe punishment. The Guidelines define a “career of-
fender” as an offender with “at least two prior felony con-
victions” for violent or drug-related crimes. United States
Sentencing Commission, Guidelines Manual § 4B1.1 (Nov.
2000) (USSG). At the same time, they provide that a sen-
tencing judge must count as a single prior felony conviction

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all those that are “related” to one another. USSG § 4B1.2(c),
and comment., n. 3; § 4A1.2(a)(2). And they advise (in an
application note) that prior convictions are “related” to one
another when, inter alia, they “were consolidated for . . .
sentencing.” § 4A1.2, comment., n. 3.
The Seventh Circuit has refined this “prior conviction”
doctrine yet further. It has held that two prior convictions
might have been “consolidated for sentencing,” and hence
“related,” even if the sentencing court did not enter any for-
mal order of consolidation. See United States v. Joseph, 50
F. 3d 401, 404, cert. denied, 516 U. S. 847 (1995). In such an
instance, the Circuit has said, a court should decide whether
the convictions were nonetheless “functionally consoli-
dated,” which means that the convictions were “factually or
logically related, and sentencing was joint.” 201 F. 3d 937,
940 (2000) (emphasis added).
B
This case concerns “functional consolidation.” Paula Bu-
ford pleaded guilty to armed bank robbery, a crime of vio-
lence, in federal court. The federal sentencing judge had
to decide whether Buford’s five 1992 Wisconsin state-court
convictions were “related” to one another, and consequently
counted as one single prior conviction, or whether they
should count as more than one.
The Government conceded that four of the five prior con-
victions were “related” to one another. These four involved
a series of gas station robberies. All four had been the sub-
ject of a single criminal indictment, and Buford had pleaded
guilty to all four at the same time in the same court. See
USSG § 4A1.2, comment., n. 3 (prior offenses are “related” if
“consolidated for trial or sentencing”).
The Government did not concede, however, that the fifth
conviction, for a drug crime, was “related” to the other four.
The drug crime (possession of, with intent to deliver, co-
caine) had taken place about the same time as the fourth

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62 BUFORD v. UNITED STATES
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robbery, and Buford claimed that the robberies had been mo-
tivated by her drug addiction. But the only evidentiary link
among the crimes was that the police had discovered the
cocaine when searching Buford’s house after her arrest for
the robberies. Moreover, no formal order of consolidation
had been entered. The State had charged the drug offense
in a separate indictment and had assigned a different prose-
cutor to handle the drug case. A different judge had heard
Buford plead guilty to the drug charge in a different hearing
held on a different date; two different state prosecutors had
appeared before the sentencing court, one discussing drugs,
the other discussing the robberies; and the sentencing court
had entered two separate judgments.
Buford, without denying these facts, nonetheless pointed
to other circumstances that, in her view, showed that the
drug crime conviction had been “consolidated” with the rob-
bery convictions for sentencing, rendering her drug convic-
tion and robbery convictions “related.” She pointed out
that the State had sent the four robbery cases for sentencing
to the very same judge who had heard and accepted her plea
of guilty to the drug charge; that the judge had heard argu-
ments about sentencing in all five cases at the same time in
a single proceeding; that the judge had issued sentences for
all five crimes at the same time; and that the judge, having
imposed three sentences for the five crimes (6 years for the
drug crime, 12 years for two robberies, and 15 years for the
other two), had ordered all three to run concurrently.
The District Court, placing greater weight on the former
circumstances than on the latter, decided that the drug case
and the robbery cases had not been consolidated for sentenc-
ing, either formally or functionally. Buford appealed. The
Court of Appeals found the “functional consolidation” ques-
tion a close one, and wrote that “the standard of appellate
review may be dispositive.” 201 F. 3d, at 940. It decided
to review the District Court’s decision “deferentially” rather

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than “de novo.” Id., at 942. And it affirmed that decision.
Ibid.
Buford sought certiorari. In light of the different Cir-
cuits’ different approaches to the problem, we granted the
writ. Compare United States v. Irons, 196 F. 3d 634, 638
(CA6 1999) (relatedness decision reviewed for clear error);
United States v. Wiseman, 172 F. 3d 1196, 1219 (CA10)
(same), cert. denied, 528 U. S. 889 (1999); United States v.
Mapp, 170 F. 3d 328, 338 (CA2) (same), cert. denied, 528 U. S.
901 (1999); United States v. Maza, 93 F. 3d 1390, 1400 (CA8
1996) (same), cert. denied, 519 U. S. 1138 (1997); United
States v. Mullens, 65 F. 3d 1560, 1565 (CA11 1995), cert. de-
nied, 517 U. S. 1112 (1996) (same), with United States v. Gar-
cia, 962 F. 2d 479, 481 (CA5) (relatedness determination re-
viewed de novo), cert. denied, 506 U. S. 902 (1992); United
States v. Davis, 922 F. 2d 1385, 1388 (CA9 1991) (same).
II
In arguing for de novo review, Buford points out that she
has not contested any relevant underlying issue of fact. She
disagrees only with the District Court’s legal conclusion that
a legal label—“functional consolidation”—failed to fit the un-
disputed facts. She concedes, as she must, that this circum-
stance does not dispose of the standard of review question.
That is because the relevant federal sentencing statute re-
quires a reviewing court not only to “accept” a district
court’s “findings of fact” (unless “clearly erroneous”), but also
to “give due deference to the district court’s application of
the guidelines to the facts.” 18 U. S. C. § 3742(e) (emphasis
added). And that is the kind of determination—application
of the Guidelines to the facts—that is at issue here. Hence
the question we must answer is what kind of “deference” is
“due.” And, as we noted in Koon v. United States, 518 U. S.
81, 98 (1996), the “deference that is due depends on the na-
ture of the question presented.”

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Buford argues that the nature of the question presented
here—applying a Sentencing Guidelines term to undisputed
facts—demands no deference at all. That is to say, the def-
erence “due” is no deference; hence the Court of Appeals
should have reviewed the trial court’s decision de novo. Bu-
ford points out that, because the underlying facts are not in
dispute, witness credibility is not important. She adds that
de novo appellate review will help clarify and make meaning-
ful the consolidation-related legal principles at issue. And
she says that de novo review will help avoid inconsistent trial
court determinations about consolidation, thereby furthering
the Guidelines’ effort to bring consistency to sentencing law.
Despite these arguments, we believe that the appellate
court was right to review this trial court decision deferen-
tially rather than de novo. In Koon, we based our selection
of an abuse-of-discretion standard of review on the relative
institutional advantages enjoyed by the district court in
making the type of determination at issue. See id., at
98–99; cf. Miller v. Fenton, 474 U. S. 104, 114 (1985) (defer-
ence may depend on whether “one judicial actor is better
positioned than another to decide the issue in question”).
We concluded there that the special competence of the dis-
trict court helped to make deferential review appropriate.
And that is true here as well. That is to say, the district
court is in a better position than the appellate court to decide
whether a particular set of individual circumstances demon-
strates “functional consolidation.”
That is so because a district judge sees many more “consol-
idations” than does an appellate judge. As a trial judge, a
district judge is likely to be more familiar with trial and sen-
tencing practices in general, including consolidation proce-
dures. And as a sentencing judge who must regularly re-
view and classify defendants’ criminal histories, a district
judge is more likely to be aware of which procedures the
relevant state or federal courts typically follow. Experience
with trials, sentencing, and consolidations will help that

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judge draw the proper inferences from the procedural de-
scriptions provided.
In addition, factual nuance may closely guide the legal de-
cision, with legal results depending heavily upon an under-
standing of the significance of case-specific details. See
Koon v. United States, supra, at 98–99 (District Court’s de-
tailed understanding of the case before it and experience
with other sentencing cases favored deferential review);
Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 403–404
(1990) (fact-intensive nature of decision whether to impose
sanctions under Federal Rule of Civil Procedure 11 made
deferential review appropriate); Pierce v. Underwood, 487
U. S. 552, 560 (1988) (District Court’s familiarity with facts of
case warranted deferential review of determination whether
Government’s legal position was “substantially justified”).
In a case like this one, for example, under Seventh Circuit
doctrine, the District Judge usefully might have considered
the factual details of the crimes at issue in order to deter-
mine whether factual connections among those crimes,
rather than, say, administrative convenience, led Wisconsin
to sentence Buford simultaneously and concurrently for the
robbery and drug offenses. See United States v. Joseph, 50
F. 3d, at 404; United States v. Russell, 2 F. 3d 200, 204
(CA7 1993).
Nor can we place determinative weight upon the height-
ened uniformity benefits that Buford contends will result
from de novo review. The legal question at issue is a minor,
detailed, interstitial question of sentencing law, buried in a
judicial interpretation of an application note to a Sentenc-
ing Guideline. That question is not a generally recurring,
purely legal matter, such as interpreting a set of legal words,
say, those of an individual guideline, in order to determine
their basic intent. Nor is that question readily resolved by
reference to general legal principles and standards alone.
Rather, the question at issue grows out of, and is bounded
by, case-specific detailed factual circumstances. And the

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fact-bound nature of the decision limits the value of appellate
court precedent, which may provide only minimal help when
other courts consider other procedural circumstances, other
state systems, and other crimes. In any event, the Sentenc-
ing Commission itself gathers information on the sentences
imposed by different courts, it views the sentencing process
as a whole, it has developed a broad perspective on sentenc-
ing practices throughout the Nation, and it can, by adjusting
the Guidelines or the application notes, produce more con-
sistent sentencing results among similarly situated offenders
sentenced by different courts. Insofar as greater uniform-
ity is necessary, the Commission can provide it. Cf. Braxton
v. United States, 500 U. S. 344, 347–348 (1991) (Congress in-
tended Sentencing Commission to play primary role in re-
solving conflicts over interpretation of Guidelines).
III
In light of the fact-bound nature of the legal decision, the
comparatively greater expertise of the District Court, and
the limited value of uniform court of appeals precedent, we
conclude that the Court of Appeals properly reviewed the
District Court’s “functional consolidation” decision deferen-
tially. The judgment of the Court of Appeals is
Affirmed.

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67 OCTOBER TERM, 2000
Syllabus
FERGUSON et al. v. CITY OF CHARLESTON et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 99–936. Argued October 4, 2000—Decided March 21, 2001
In the fall of 1988, staff members at the Charleston public hospital oper-
ated by the Medical University of South Carolina (MUSC) became con-
cerned about an apparent increase in the use of cocaine by patients who
were receiving prenatal treatment. When the incidence of cocaine use
among maternity patients remained unchanged despite referrals for
counseling and treatment of patients who tested positive for that drug,
MUSC staff offered to cooperate with the city in prosecuting mothers
whose children tested positive for drugs at birth. Accordingly, a task
force made up of MUSC representatives, police, and local officials devel-
oped a policy which set forth procedures for identifying and testing
pregnant patients suspected of drug use; required that a chain of cus-
tody be followed when obtaining and testing patients’ urine samples;
provided for education and treatment referral for patients testing posi-
tive; contained police procedures and criteria for arresting patients who
tested positive; and prescribed prosecutions for drug offenses and/or
child neglect, depending on the stage of the defendant’s pregnancy.
Other than the provisions describing the substance abuse treatment to
be offered women testing positive, the policy made no mention of any
change in the prenatal care of such patients, nor did it prescribe any
special treatment for the newborns. Petitioners, MUSC obstetrical pa-
tients arrested after testing positive for cocaine, filed this suit challeng-
ing the policy’s validity on, inter alia, the theory that warrantless and
nonconsensual drug tests conducted for criminal investigatory purposes
were unconstitutional searches. Among its actions, the District Court
instructed the jury to find for petitioners unless they had consented to
such searches. The jury found for respondents, and petitioners ap-
pealed, arguing that the evidence was not sufficient to support the jury’s
consent finding. In affirming without reaching the consent question,
the Fourth Circuit held that the searches in question were reasonable
as a matter of law under this Court’s cases recognizing that “special
needs” may, in certain exceptional circumstances, justify a search policy
designed to serve non-law-enforcement ends.
Held: A state hospital’s performance of a diagnostic test to obtain evi-
dence of a patient’s criminal conduct for law enforcement purposes is an
unreasonable search if the patient has not consented to the procedure.

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68 FERGUSON v. CHARLESTON
Syllabus
The interest in using the threat of criminal sanctions to deter pregnant
women from using cocaine cannot justify a departure from the general
rule that an official nonconsensual search is unconstitutional if not au-
thorized by a valid warrant. Pp. 76–86.
(a) Because MUSC is a state hospital, its staff members are govern-
ment actors subject to the Fourth Amendment’s strictures. New Jersey
v. T. L. O., 469 U. S. 325, 335–337. Moreover, the urine tests at issue
were indisputably searches within that Amendment’s meaning. Skin-
ner v. Railway Labor Executives’ Assn., 489 U. S. 602, 617. Further-
more, both lower courts viewed the case as one involving MUSC’s right
to conduct searches without warrants or probable cause, and this Court
must assume for purposes of decision that the tests were performed
without the patients’ informed consent. Pp. 76–77.
(b) Because the hospital seeks to justify its authority to conduct drug
tests and to turn the results over to police without the patients’ knowl-
edge or consent, this case differs from the four previous cases in which
the Court considered whether comparable drug tests fit within the
closely guarded category of constitutionally permissible suspicionless
searches. See Chandler v. Miller, 520 U. S. 305, 309; see also Skinner,
Treasury Employees v. Von Raab, 489 U. S. 656, and Vernonia School
Dist. 47J v. Acton, 515 U. S. 646. Those cases employed a balancing
test weighing the intrusion on the individual’s privacy interest against
the “special needs” that supported the program. The invasion of pri-
vacy here is far more substantial than in those cases. In previous
cases, there was no misunderstanding about the purpose of the test or
the potential use of the test results, and there were protections against
the dissemination of the results to third parties. Moreover, those cases
involved disqualification from eligibility for particular benefits, not
the unauthorized dissemination of test results. The critical difference,
however, lies in the nature of the “special need” asserted. In each of
the prior cases, the “special need” was one divorced from the State’s
general law enforcement interest. Here, the policy’s central and indis-
pensable feature from its inception was the use of law enforcement to
coerce patients into substance abuse treatment. Respondents’ asser-
tion that their ultimate purpose—namely, protecting the health of both
mother and child—is a beneficent one is unavailing. While the ultimate
goal of the program may well have been to get the women in question
into substance abuse treatment and off drugs, the immediate objective
of the searches was to generate evidence for law enforcement purposes
in order to reach that goal. Given that purpose and given the extensive
involvement of law enforcement officials at every stage of the policy,
this case simply does not fit within the closely guarded category of “spe-
cial needs.” The fact that positive test results were turned over to the

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69 Cite as: 532 U. S. 67 (2001)
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police does not merely provide a basis for distinguishing prior “special
needs” cases. It also provides an affirmative reason for enforcing the
Fourth Amendment’s strictures. While state hospital employees, like
other citizens, may have a duty to provide the police with evidence of
criminal conduct that they inadvertently acquire in the course of routine
treatment, when they undertake to obtain such evidence from their
patients for the specific purpose of incriminating those patients, they
have a special obligation to make sure that the patients are fully in-
formed about their constitutional rights, as standards of knowing waiver
require. Cf. Miranda v. Arizona, 384 U. S. 436. Pp. 77–86.
186 F. 3d 469, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opin-
ion concurring in the judgment, post, p. 86. Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined as to Part II,
post, p. 91.
Priscilla J. Smith argued the cause for petitioners. With
her on the briefs were Simon Heller, Lynn Paltrow, Susan
Frietsche, David S. Cohen, Susan Dunn, David Rudovsky,
and Seth Kreimer.
Robert H. Hood argued the cause for respondents. With
him on the brief were Barbara Wynne Showers and Mary
Agnes Hood Craig.*
Justice Stevens delivered the opinion of the Court.
In this case, we must decide whether a state hospital’s
performance of a diagnostic test to obtain evidence of a pa-
tient’s criminal conduct for law enforcement purposes is an
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by Julie E. Sternberg, Steven R. Shapiro, Sara
L. Mandelbaum, Catherine Weiss, Louise Melling, Louis M. Bograd, Mar-
tha F. Davis, Yolanda S. Wu, and Roslyn Powell; for the American Medi-
cal Association by Michael Ile, Anne Murphy, and Leonard Nelson; for
the American Public Health Association et al. by Daniel N. Abrahamson
and David T. Goldberg; for the NARAL Foundation et al. by Nancy L.
Perkins and Jodi Michael; for the National Coalition for Child Protection
Reform et al. by Carolyn A. Kubitschek; and for the Rutherford Institute
by John W. Whitehead and Steven H. Aden.

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70 FERGUSON v. CHARLESTON
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unreasonable search if the patient has not consented to the
procedure. More narrowly, the question is whether the in-
terest in using the threat of criminal sanctions to deter preg-
nant women from using cocaine can justify a departure from
the general rule that an official nonconsensual search is un-
constitutional if not authorized by a valid warrant.
I
In the fall of 1988, staff members at the public hospital
operated in the city of Charleston by the Medical University
of South Carolina (MUSC) became concerned about an ap-
parent increase in the use of cocaine by patients who were
receiving prenatal treatment.1 In response to this per-
ceived increase, as of April 1989, MUSC began to order drug
screens to be performed on urine samples from maternity
patients who were suspected of using cocaine. If a patient
tested positive, she was then referred by MUSC staff to the
county substance abuse commission for counseling and treat-
ment. However, despite the referrals, the incidence of co-
caine use among the patients at MUSC did not appear to
change.
Some four months later, Nurse Shirley Brown, the case
manager for the MUSC obstetrics department, heard a news
broadcast reporting that the police in Greenville, South Car-
olina, were arresting pregnant users of cocaine on the theory
that such use harmed the fetus and was therefore child
abuse.2 Nurse Brown discussed the story with MUSC’s
general counsel, Joseph C. Good, Jr., who then contacted
1 As several witnesses testified at trial, the problem of “crack babies”
was widely perceived in the late 1980’s as a national epidemic, prompting
considerable concern both in the medical community and among the gen-
eral populace.
2 Under South Carolina law, a viable fetus has historically been regarded
as a person; in 1995, the South Carolina Supreme Court held that the
ingestion of cocaine during the third trimester of pregnancy constitutes
criminal child neglect. Whitner v. South Carolina, 328 S. C. 1, 492 S. E.
2d 777 (1995), cert. denied, 523 U. S. 1145 (1998).

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Charleston Solicitor Charles Condon in order to offer
MUSC’s cooperation in prosecuting mothers whose children
tested positive for drugs at birth.3
After receiving Good’s letter, Solicitor Condon took the
first steps in developing the policy at issue in this case. He
organized the initial meetings, decided who would partici-
pate, and issued the invitations, in which he described his
plan to prosecute women who tested positive for cocaine
while pregnant. The task force that Condon formed in-
cluded representatives of MUSC, the police, the County Sub-
stance Abuse Commission and the Department of Social
Services. Their deliberations led to MUSC’s adoption of a
12-page document entitled “POLICY M–7,” dealing with the
subject of “Management of Drug Abuse During Pregnancy.”
App. to Pet. for Cert. A–53.
The first three pages of Policy M–7 set forth the procedure
to be followed by the hospital staff to “identify/assist preg-
nant patients suspected of drug abuse.” Id., at A–53 to
A–56. The first section, entitled the “Identification of Drug
Abusers,” provided that a patient should be tested for co-
caine through a urine drug screen if she met one or more of
nine criteria.4 It also stated that a chain of custody should
3 In his letter dated August 23, 1989, Good wrote: “Please advise us if
your office is anticipating future criminal action and what if anything our
Medical Center needs to do to assist you in this matter.” App. to Pet. for
Cert. A–67.
4 Those criteria were as follows:
“1. No prenatal care
“2. Late prenatal care after 24 weeks gestation
“3. Incomplete prenatal care
“4. Abruptio placentae
“5. Intrauterine fetal death
“6. Preterm labor ‘of no obvious cause’
“7. IUGR [intrauterine growth retardation] ‘of no obvious cause’
“8. Previously known drug or alcohol abuse
“9. Unexplained congenital anomalies.” Id., at A–53 to A–54.

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72 FERGUSON v. CHARLESTON
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be followed when obtaining and testing urine samples, pre-
sumably to make sure that the results could be used in subse-
quent criminal proceedings. The policy also provided for
education and referral to a substance abuse clinic for patients
who tested positive. Most important, it added the threat of
law enforcement intervention that “provided the necessary
‘leverage’ to make the [p]olicy effective.” Brief for Re-
spondents 8. That threat was, as respondents candidly ac-
knowledge, essential to the program’s success in getting
women into treatment and keeping them there.
The threat of law enforcement involvement was set forth
in two protocols, the first dealing with the identification of
drug use during pregnancy, and the second with identifica-
tion of drug use after labor. Under the latter protocol, the
police were to be notified without delay and the patient
promptly arrested. Under the former, after the initial posi-
tive drug test, the police were to be notified (and the patient
arrested) only if the patient tested positive for cocaine a sec-
ond time or if she missed an appointment with a substance
abuse counselor.5 In 1990, however, the policy was modified
at the behest of the solicitor’s office to give the patient who
tested positive during labor, like the patient who tested posi-
tive during a prenatal care visit, an opportunity to avoid ar-
rest by consenting to substance abuse treatment.
The last six pages of the policy contained forms for the
patients to sign, as well as procedures for the police to follow
when a patient was arrested. The policy also prescribed in
detail the precise offenses with which a woman could be
charged, depending on the stage of her pregnancy. If the
pregnancy was 27 weeks or less, the patient was to be
charged with simple possession. If it was 28 weeks or more,
she was to be charged with possession and distribution to a
person under the age of 18—in this case, the fetus. If she
5 Despite the conditional description of the first category, when the pol-
icy was in its initial stages, a positive test was immediately reported to
the police, who then promptly arrested the patient.

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Opinion of the Court
delivered “while testing positive for illegal drugs,” she was
also to be charged with unlawful neglect of a child. App.
to Pet. for Cert. A–62. Under the policy, the police were
instructed to interrogate the arrestee in order “to ascertain
the identity of the subject who provided illegal drugs to the
suspect.” Id., at A–63. Other than the provisions describ-
ing the substance abuse treatment to be offered to women
who tested positive, the policy made no mention of any
change in the prenatal care of such patients, nor did it pre-
scribe any special treatment for the newborns.
II
Petitioners are 10 women who received obstetrical care at
MUSC and who were arrested after testing positive for co-
caine. Four of them were arrested during the initial imple-
mentation of the policy; they were not offered the opportu-
nity to receive drug treatment as an alternative to arrest.
The others were arrested after the policy was modified in
1990; they either failed to comply with the terms of the drug
treatment program or tested positive for a second time. Re-
spondents include the city of Charleston, law enforcement
officials who helped develop and enforce the policy, and rep-
resentatives of MUSC.
Petitioners’ complaint challenged the validity of the policy
under various theories, including the claim that warrantless
and nonconsensual drug tests conducted for criminal investi-
gatory purposes were unconstitutional searches. Respond-
ents advanced two principal defenses to the constitutional
claim: (1) that, as a matter of fact, petitioners had consented
to the searches; and (2) that, as a matter of law, the searches
were reasonable, even absent consent, because they were
justified by special non-law-enforcement purposes. The
District Court rejected the second defense because the
searches in question “were not done by the medical univer-
sity for independent purposes. [Instead,] the police came in
and there was an agreement reached that the positive

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74 FERGUSON v. CHARLESTON
Opinion of the Court
screens would be shared with the police.” App. 1248–1249.
Accordingly, the District Court submitted the factual de-
fense to the jury with instructions that required a verdict in
favor of petitioners unless the jury found consent.6 The jury
found for respondents.
Petitioners appealed, arguing that the evidence was not
sufficient to support the jury’s consent finding. The Court
of Appeals for the Fourth Circuit affirmed, but without
reaching the question of consent. 186 F. 3d 469 (1999).
Disagreeing with the District Court, the majority of the ap-
pellate panel held that the searches were reasonable as a
matter of law under our line of cases recognizing that “spe-
cial needs” may, in certain exceptional circumstances, justify
a search policy designed to serve non-law-enforcement ends.7
6 The instructions read: “THERE WERE NO SEARCH WARRANTS
ISSUED BY A MAGISTRATE OR ANY OTHER PROPER JUDICIAL
OFFICER TO PERMIT THESE URINE SCREENS TO BE TAKEN.
THERE NOT BEING A WARRANT ISSUED, THEY ARE UNREA-
SONABLE AND IN VIOLATION OF THE CONSTITUTION OF THE
UNITED STATES, UNLESS THE DEFENDANTS HAVE SHOWN
BY THE GREATER WEIGHT OR PREPONDERANCE OF THE
EVIDENCE THAT THE PLAINTIFFS CONSENTED TO THOSE
SEARCHES.” App. 1314–1315. Under the judge’s instructions, in
order to find that the plaintiffs had consented to the searches, it was neces-
sary for the jury to find that they had consented to the taking of the
samples, to the testing for evidence of cocaine, and to the possible disclo-
sure of the test results to the police. Respondents have not argued, as
Justice Scalia does, that it is permissible for members of the staff of a
public hospital to use diagnostic tests “deceivingly” to obtain incriminat-
ing evidence from their patients. See post, at 94 (dissenting opinion).
7 The term “special needs” first appeared in Justice Blackmun’s opinion
concurring in the judgment in New Jersey v. T. L. O., 469 U. S. 325, 351
(1985). In his concurrence, Justice Blackmun agreed with the Court that
there are limited exceptions to the probable-cause requirement, in which
reasonableness is determined by “a careful balancing of governmental and
private interests,” but concluded that such a test should only be applied
“in those exceptional circumstances in which special needs, beyond
the normal need for law enforcement, make the warrant and probable-
cause requirement impracticable . . . .” Ibid. This Court subsequently

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75 Cite as: 532 U. S. 67 (2001)
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On the understanding “that MUSC personnel conducted the
urine drug screens for medical purposes wholly independent
of an intent to aid law enforcement efforts,” 8 id., at 477, the
majority applied the balancing test used in Treasury Em-
ployees v. Von Raab, 489 U. S. 656 (1989), and Vernonia
School Dist. 47J v. Acton, 515 U. S. 646 (1995), and concluded
that the interest in curtailing the pregnancy complications
and medical costs associated with maternal cocaine use out-
weighed what the majority termed a minimal intrusion on
the privacy of the patients. In dissent, Judge Blake con-
cluded that the “special needs” doctrine should not apply and
adopted the “special needs” terminology in O’Connor v. Ortega, 480 U. S.
709, 720 (1987) (plurality opinion), and Griffin v. Wisconsin, 483 U. S. 868,
873 (1987), concluding that, in limited circumstances, a search unsupported
by either warrant or probable cause can be constitutional when “special
needs” other than the normal need for law enforcement provide sufficient
justification. See also Vernonia School Dist. 47J v. Acton, 515 U. S. 646,
652–653 (1995).
8 The majority stated that the District Court had made such a finding.
186 F. 3d, at 477. The text of the relevant finding, made in the context of
petitioners’ now abandoned Title VI claim, reads as follows: “The policy
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.” App. to Pet. for Cert. A–38. That finding,
however, must be read in light of this comment by the District Court with
respect to the Fourth Amendment claim:
“. . . THESE SEARCHES WERE NOT DONE BY THE MEDICAL
UNIVERSITY FOR INDEPENDENT PURPOSES. IF THEY HAD
BEEN, THEN THEY WOULD NOT IMPLICATE THE FOURTH
AMENDMENT. OBVIOUSLY AS I POINT OUT THERE ON PAGE 4,
NORMALLY URINE SCREENS AND BLOOD TESTS AND THAT
TYPE OF THING CAN BE TAKEN BY HEALTH CARE PROVIDERS
WITHOUT HAVING TO WORRY ABOUT THE FOURTH AMEND-
MENT. THE ONLY REASON THE FOURTH AMENDMENT IS IM-
PLICATED HERE IS THAT THE POLICE CAME IN AND THERE
WAS AN AGREEMENT REACHED THAT THE POSITIVE
SCREENS WOULD BE SHARED WITH THE POLICE. AND THEN
THE SCREEN IS NOT DONE INDEPENDENT OF POLICE, IT’S
DONE IN CONJUNCTION WITH THE POLICE AND THAT IMPLI-
CATES THE FOURTH AMENDMENT.” App. 1248–1249.

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76 FERGUSON v. CHARLESTON
Opinion of the Court
that the evidence of consent was insufficient to sustain the
jury’s verdict. 186 F. 3d, at 487–488.
We granted certiorari, 528 U. S. 1187 (2000), to review the
appellate court’s holding on the “special needs” issue. Be-
cause we do not reach the question of the sufficiency of the
evidence with respect to consent, we necessarily assume for
purposes of our decision—as did the Court of Appeals—that
the searches were conducted without the informed consent
of the patients. We conclude that the judgment should be
reversed and the case remanded for a decision on the con-
sent issue.
III
Because MUSC is a state hospital, the members of its staff
are government actors, subject to the strictures of the
Fourth Amendment. New Jersey v. T. L. O., 469 U. S. 325,
335–337 (1985). Moreover, the urine tests conducted by
those staff members were indisputably searches within the
meaning of the Fourth Amendment. Skinner v. Railway
Labor Executives’ Assn., 489 U. S. 602, 617 (1989).9 Neither
the District Court nor the Court of Appeals concluded that
any of the nine criteria used to identify the women to be
searched provided either probable cause to believe that they
were using cocaine, or even the basis for a reasonable suspi-
cion of such use. Rather, the District Court and the Court
of Appeals viewed the case as one involving MUSC’s right
9 In arguing that the urine tests at issue were not searches, the dissent
attempts to disaggregate the taking and testing of the urine sample from
the reporting of the results to the police. See post, at 92. However, in
our special needs cases, we have routinely treated urine screens taken by
state agents as searches within the meaning of the Fourth Amendment
even though the results were not reported to the police, see, e. g., Chan-
dler v. Miller, 520 U. S. 305 (1997); Vernonia School Dist. 47J v. Acton,
515 U. S. 646 (1995); Skinner v. Railway Labor Executives’ Assn., 489
U. S. 602, 617 (1989); Treasury Employees v. Von Raab, 489 U. S. 656
(1989), and respondents here do not contend that the tests were not
searches. Rather, they argue that the searches were justified by consent
and/or by special needs.

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to conduct searches without warrants or probable cause.10
Furthermore, given the posture in which the case comes to
us, we must assume for purposes of our decision that the
tests were performed without the informed consent of the
patients.11
Because the hospital seeks to justify its authority to con-
duct drug tests and to turn the results over to law enforce-
ment agents without the knowledge or consent of the pa-
tients, this case differs from the four previous cases in which
we have considered whether comparable drug tests “fit
within the closely guarded category of constitutionally per-
missible suspicionless searches.” Chandler v. Miller, 520
U. S. 305, 309 (1997). In three of those cases, we sustained
drug tests for railway employees involved in train accidents,
Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602
(1989), for United States Customs Service employees seeking
promotion to certain sensitive positions, Treasury Employ-
ees v. Von Raab, 489 U. S. 656 (1989), and for high school
students participating in interscholastic sports, Vernonia
School Dist. 47J v. Acton, 515 U. S. 646 (1995). In the fourth
case, we struck down such testing for candidates for desig-
nated state offices as unreasonable. Chandler v. Miller, 520
U. S. 305 (1997).
10 In a footnote to their brief, respondents do argue that the searches
were not entirely suspicionless. Brief for Respondents 23, n. 13. They
do not, however, point to any evidence in the record indicating that any of
the nine search criteria was more apt to be caused by cocaine use than
by some other factor, such as malnutrition, illness, or indigency. More
significantly, their legal argument and the reasoning of the majority panel
opinion rest on the premise that the policy would be valid even if the tests
were conducted randomly.
11 The dissent would have us do otherwise and resolve the issue of con-
sent in favor of respondents. Because the Court of Appeals did not dis-
cuss this issue, we think it more prudent to allow that court to resolve the
legal and factual issues in the first instance, and we express no view on
those issues. See, e. g., Glover v. United States, 531 U. S. 198 (2001); Na-
tional Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).

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78 FERGUSON v. CHARLESTON
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In each of those cases, we employed a balancing test that
weighed the intrusion on the individual’s interest in privacy
against the “special needs” that supported the program. As
an initial matter, we note that the invasion of privacy in this
case is far more substantial than in those cases. In the pre-
vious four cases, there was no misunderstanding about the
purpose of the test or the potential use of the test results,
and there were protections against the dissemination of the
results to third parties.12 The use of an adverse test result
to disqualify one from eligibility for a particular benefit, such
as a promotion or an opportunity to participate in an extra-
curricular activity, involves a less serious intrusion on pri-
vacy than the unauthorized dissemination of such results to
third parties. The reasonable expectation of privacy en-
joyed by the typical patient undergoing diagnostic tests in a
hospital is that the results of those tests will not be shared
with nonmedical personnel without her consent. See Brief
for American Medical Association as Amicus Curiae 11;
Brief for American Public Health Association et al. as Amici
Curiae 6, 17–19.13 In none of our prior cases was there any
intrusion upon that kind of expectation.14
12 Chandler, 520 U. S., at 312, 318; Acton, 515 U. S., at 658; Skinner, 489
U. S., at 621, n. 5, 622, n. 6; Von Raab, 489 U. S., at 663, 666–667, 672, n. 2.
13 There are some circumstances in which state hospital employees, like
other citizens, may have a duty to provide law enforcement officials with
evidence of criminal conduct acquired in the course of routine treatment,
see, e. g., S. C. Code Ann. § 20–7–510 (2000) (physicians and nurses required
to report to child welfare agency or law enforcement authority “when in
the person’s professional capacity the person” receives information that a
child has been abused or neglected). While the existence of such laws
might lead a patient to expect that members of the hospital staff might
turn over evidence acquired in the course of treatment to which the pa-
tient had consented, they surely would not lead a patient to anticipate that
hospital staff would intentionally set out to obtain incriminating evidence
from their patients for law enforcement purposes.
14 In fact, we have previously recognized that an intrusion on that expec-
tation may have adverse consequences because it may deter patients from

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The critical difference between those four drug-testing
cases and this one, however, lies in the nature of the “special
need” asserted as justification for the warrantless searches.
In each of those earlier cases, the “special need” that was
advanced as a justification for the absence of a warrant or
individualized suspicion was one divorced from the State’s
general interest in law enforcement.15 This point was em-
receiving needed medical care. Whalen v. Roe, 429 U. S. 589, 599–600
(1977). Cf. Poland, Dombrowski, Ager, & Sokol, Punishing pregnant drug
users: enhancing the flight from care, 31 Drug and Alcohol Dependence
199–203 (1993).
15 As The Chief Justice recently noted: “The ‘special needs’ doctrine,
which has been used to uphold certain suspicionless searches performed
for reasons unrelated to law enforcement, is an exception to the general
rule that a search must be based on individualized suspicion of wrong-
doing.” Indianapolis v. Edmond, 531 U. S. 32, 54 (2000) (dissenting opin-
ion); see also nn. 16–17, infra. In T. L. O., we made a point of distinguish-
ing searches “carried out by school authorities acting alone and on their
own authority” from those conducted “in conjunction with or at the behest
of law enforcement agencies.” 469 U. S., at 341, n. 7.
The dissent, however, relying on Griffin v. Wisconsin, 483 U. S. 868
(1987), argues that the special needs doctrine “is ordinarily employe[d],
precisely to enable searches by law enforcement officials who, of course,
ordinarily have a law enforcement objective.” Post, at 100. Viewed in
the context of our special needs case law and even viewed in isolation,
Griffin does not support the proposition for which the dissent invokes it.
In other special needs cases, we have tolerated suspension of the Fourth
Amendment’s warrant or probable-cause requirement in part because
there was no law enforcement purpose behind the searches in those cases,
and there was little, if any, entanglement with law enforcement. See
Skinner, 489 U. S., at 620–621; Von Raab, 489 U. S., at 665–666; Acton,
515 U. S., at 658. Moreover, after our decision in Griffin, we reserved the
question whether “routine use in criminal prosecutions of evidence ob-
tained pursuant to the administrative scheme would give rise to an infer-
ence of pretext, or otherwise impugn the administrative nature of the . . .
program.” Skinner, 489 U. S., at 621, n. 5. In Griffin itself, this Court
noted that “[a]lthough a probation officer is not an impartial magistrate,
neither is he the police officer who normally conducts searches against the
ordinary citizen.” 483 U. S., at 876. Finally, we agree with petitioners

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80 FERGUSON v. CHARLESTON
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phasized both in the majority opinions sustaining the pro-
grams in the first three cases,16 as well as in the dissent in
the Chandler case.17 In this case, however, the central and
indispensable feature of the policy from its inception was the
use of law enforcement to coerce the patients into substance
abuse treatment. This fact distinguishes this case from
circumstances in which physicians or psychologists, in the
that Griffin is properly read as limited by the fact that probationers have
a lesser expectation of privacy than the public at large. Id., at 874–875.
16 In Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989),
this Court noted that “[t]he FRA has prescribed toxicological tests, not to
assist in the prosecution of employees, but rather ‘to prevent accidents
and casualties in railroad operations that result from impairment of em-
ployees by alcohol or drugs.’ ” Id., at 620–621 (quoting 49 CFR § 219.1(a)
(1987)). Similarly, in Treasury Employees v. Von Raab, 489 U. S. 656
(1989), we concluded that it was “clear that the Customs Service’s drug-
testing program is not designed to serve the ordinary needs of law en-
forcement. Test results may not be used in a criminal prosecution of the
employee without the employee’s consent.” Id., at 665–666. In the same
vein, in Acton, 515 U. S., at 658, we relied in part on the fact that “the
results of the tests are disclosed only to a limited class of school personnel
who have a need to know; and they are not turned over to law enforcement
authorities or used for any internal disciplinary function” in finding the
searches reasonable.
17 “Today’s opinion speaks of a ‘closely guarded’ class of permissible sus-
picionless searches which must be justified by a ‘special need.’ But this
term, as used in Skinner and Von Raab and on which the Court now relies,
was used in a quite different sense than it is used by the Court today. In
Skinner and Von Raab it was used to describe a basis for a search apart
from the regular needs of law enforcement, Skinner, [489 U. S.], at 620;
Von Raab, [489 U. S.], at 669. The ‘special needs’ inquiry as delineated
there has not required especially great ‘importan[ce],’ [520 U. S.], at 318,
unless one considers ‘the supervision of probationers,’ or the ‘operation of
a government office,’ Skinner, supra, at 620, to be especially ‘important.’
Under our precedents, if there was a proper governmental purpose other
than law enforcement, there was a ‘special need,’ and the Fourth Amend-
ment then required the familiar balancing between that interest and the
individual’s privacy interest.” Chandler v. Miller, 520 U. S., at 325
(Rehnquist, C. J., dissenting).

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course of ordinary medical procedures aimed at helping the
patient herself, come across information that under rules of
law or ethics is subject to reporting requirements, which
no one has challenged here. See, e. g., Council on Ethical
and Judicial Affairs, American Medical Association, Policy-
Finder, Current Opinions E–5.05 (2000) (requiring reporting
where “a patient threatens to inflict serious bodily harm to
another person or to him or herself and there is a reasonable
probability that the patient may carry out the threat”); Ark.
Code Ann. § 12–12–602 (1999) (requiring reporting of inten-
tionally inflicted knife or gunshot wounds); Ariz. Rev. Stat.
Ann. § 13–3620 (Supp. 2000) (requiring “any . . . person hav-
ing responsibility for the care or treatment of children” to
report suspected abuse or neglect to a peace officer or child
protection agency).18
Respondents argue in essence that their ultimate pur-
pose—namely, protecting the health of both mother and
child—is a beneficent one. In Chandler, however, we did
not simply accept the State’s invocation of a “special need.”
Instead, we carried out a “close review” of the scheme at
issue before concluding that the need in question was not
“special,” as that term has been defined in our cases. 520
U. S., at 322. In this case, a review of the M–7 policy plainly
reveals that the purpose actually served by the MUSC
searches “is ultimately indistinguishable from the general in-
terest in crime control.” Indianapolis v. Edmond, 531 U. S.
32, 44 (2000).
In looking to the programmatic purpose, we consider all
the available evidence in order to determine the relevant
primary purpose. See, e. g., id., at 45–47. In this case, as
18 Our emphasis on this distinction should make it clear that, contrary to
the hyperbole in the dissent, we do not view these reporting requirements
as “clearly bad.” See post, at 95–96, n. 3. Those requirements are sim-
ply not in issue here.

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Judge Blake put it in her dissent below, “it . . . is clear
from the record that an initial and continuing focus of the
policy was on the arrest and prosecution of drug-abusing
mothers . . . .” 186 F. 3d, at 484. Tellingly, the document
codifying the policy incorporates the police’s operational
guidelines. It devotes its attention to the chain of custody,
the range of possible criminal charges, and the logistics of
police notification and arrests. Nowhere, however, does the
document discuss different courses of medical treatment for
either mother or infant, aside from treatment for the moth-
er’s addiction.
Moreover, throughout the development and application of
the policy, the Charleston prosecutors and police were exten-
sively involved in the day-to-day administration of the policy.
Police and prosecutors decided who would receive the re-
ports of positive drug screens and what information would
be included with those reports. App. 78–80, 145–146, 1058–
1060. Law enforcement officials also helped determine the
procedures to be followed when performing the screens.19
Id., at 1052–1053. See also id., at 26–27, 945. In the course
of the policy’s administration, they had access to Nurse
Brown’s medical files on the women who tested positive, rou-
tinely attended the substance abuse team’s meetings, and
regularly received copies of team documents discussing the
women’s progress. Id., at 122–124, 609–610. Police took
pains to coordinate the timing and circumstances of the ar-
rests with MUSC staff, and, in particular, Nurse Brown.
Id., at 1057–1058.
While the ultimate goal of the program may well have been
to get the women in question into substance abuse treatment
19 Accordingly, the police organized a meeting with the staff of the police
and hospital laboratory staffs, as well as Nurse Brown, in which the police
went over the concept of a chain of custody system with the MUSC staff.
App. 1052–1053.

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and off of drugs, the immediate objective of the searches
was to generate evidence for law enforcement purposes 20
in order to reach that goal.21 The threat of law enforcement
20 We italicize those words lest our reasoning be misunderstood. See
post, at 86–88 (Kennedy, J., concurring in judgment). In none of our
previous special needs cases have we upheld the collection of evidence for
criminal law enforcement purposes. Our essential point is the same as
Justice Kennedy’s—the extensive entanglement of law enforcement
cannot be justified by reference to legitimate needs.
According to the dissent, the fact that MUSC performed tests prior to
the development of Policy M–7 should immunize any subsequent testing
policy despite the presence of a law enforcement purpose and extensive
law enforcement involvement. See post, at 98–100. To say that any ther-
apeutic purpose did not disappear is simply to miss the point. What mat-
ters is that under the new policy developed by the solicitor’s office and
MUSC, law enforcement involvement was the means by which that thera-
peutic purpose was to be met. Policy M–7 was, at its core, predicated on
the use of law enforcement. The extensive involvement of law enforce-
ment and the threat of prosecution were, as respondents admitted, essen-
tial to the program’s success.
21 Accordingly, this case differs from New York v. Burger, 482 U. S. 691
(1987), in which the Court upheld a scheme in which police officers were
used to carry out administrative inspections of vehicle dismantling busi-
nesses. That case involved an industry in which the expectation of pri-
vacy in commercial premises was “particularly attenuated” given the ex-
tent to which the industry in question was closely regulated. Id., at 700.
More important for our purposes, the Court relied on the “plain adminis-
trative purposes” of the scheme to reject the contention that the statute
was in fact “designed to gather evidence to enable convictions under the
penal laws . . . .” Id., at 715. The discovery of evidence of other viola-
tions would have been merely incidental to the purposes of the administra-
tive search. In contrast, in this case, the policy was specifically designed
to gather evidence of violations of penal laws.
This case also differs from the handful of seizure cases in which we have
applied a balancing test to determine Fourth Amendment reasonableness.
See, e. g., Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 455 (1990);
United States v. Martinez-Fuerte, 428 U. S. 543 (1976). First, those cases
involved roadblock seizures, rather than “the intrusive search of the body
or the home.” See Indianapolis v. Edmond, 531 U. S., at 54–55 (Rehn-
quist, C. J., dissenting); Martinez-Fuerte, 428 U. S., at 561 (“[W]e deal

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84 FERGUSON v. CHARLESTON
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may ultimately have been intended as a means to an end, but
the direct and primary purpose of MUSC’s policy was to en-
sure the use of those means. In our opinion, this distinction
is critical. Because law enforcement involvement always
serves some broader social purpose or objective, under re-
spondents’ view, virtually any nonconsensual suspicionless
search could be immunized under the special needs doctrine
by defining the search solely in terms of its ultimate, rather
than immediate, purpose.22 Such an approach is inconsistent
with the Fourth Amendment. Given the primary purpose
of the Charleston program, which was to use the threat of
arrest and prosecution in order to force women into treat-
ment, and given the extensive involvement of law enforce-
ment officials at every stage of the policy, this case simply
does not fit within the closely guarded category of “special
needs.” 23
The fact that positive test results were turned over to the
police does not merely provide a basis for distinguishing our
prior cases applying the “special needs” balancing approach
to the determination of drug use. It also provides an af-
firmative reason for enforcing the strictures of the Fourth
Amendment. While state hospital employees, like other cit-
izens, may have a duty to provide the police with evidence
neither with searches nor with the sanctity of private dwellings, ordinarily
afforded the most stringent Fourth Amendment protection”). Second,
the Court explicitly distinguished the cases dealing with checkpoints from
those dealing with “special needs.” Sitz, 496 U. S., at 450.
22 Thus, under respondents’ approach, any search to generate evidence
for use by the police in enforcing general criminal laws would be justified
by reference to the broad social benefits that those laws might bring about
(or, put another way, the social harms that they might prevent).
23 It is especially difficult to argue that the program here was designed
simply to save lives. Amici claim a near consensus in the medical commu-
nity that programs of the sort at issue, by discouraging women who use
drugs from seeking prenatal care, harm, rather than advance, the cause of
prenatal health. See Brief for American Medical Association as Amicus
Curiae 6–22; Brief for American Public Health Association et al. as Amici
Curiae 17–21; Brief for NARAL Foundation et al. as Amici Curiae 18–19.

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of criminal conduct that they inadvertently acquire in the
course of routine treatment, when they undertake to obtain
such evidence from their patients for the specific purpose of
incriminating those patients, they have a special obligation
to make sure that the patients are fully informed about their
constitutional rights, as standards of knowing waiver re-
quire.24 Cf. Miranda v. Arizona, 384 U. S. 436 (1966).
As respondents have repeatedly insisted, their motive was
benign rather than punitive. Such a motive, however, can-
not justify a departure from Fourth Amendment protections,
given the pervasive involvement of law enforcement with the
development and application of the MUSC policy. The stark
24 In fact, some MUSC staff made this distinction themselves. See Pl.
Exh. No. 14, Hulsey, 11–17–89, Coke Committee, 1–2 (“The use of medically
indicated tests for substance abuse, obtained in conventional manners,
must be distinguished from mandatory screening and collection of evi-
dence using such methods as chain of custody, etc. . . . The question is
raised as to whether pediatricians should function as law enforcement of-
ficials. While the reporting of criminal activity to appropriate authorities
may be required and/or ethically just, the active pursuit of evidence to be
used against individuals presenting for medical care may not be proper”).
The dissent, however, mischaracterizes our opinion as holding that “ma-
terial which a person voluntarily entrusts to someone else cannot be given
by that person to the police, and used for whatever evidence it may con-
tain.” Post, at 95. But, as we have noted elsewhere, given the posture
of the case, we must assume for purposes of decision that the patients did
not consent to the searches, and we leave the question of consent for the
Court of Appeals to determine. See n. 11, supra.
The dissent further argues that our holding “leaves law enforcement
officials entirely in the dark as to when they can use incriminating evi-
dence obtained from ‘trusted’ sources.” See post, at 95. With all due
respect, we disagree. We do not address a case in which doctors inde-
pendently complied with reporting requirements. Rather, as we point
out above, in this case, medical personnel used the criteria set out in n. 4,
supra, to collect evidence for law enforcement purposes, and law enforce-
ment officers were extensively involved in the initiation, design, and im-
plementation of the program. In such circumstances, the Fourth Amend-
ment’s general prohibition against nonconsensual, warrantless, and
suspicionless searches applies in the absence of consent. We decline to
accept the dissent’s invitation to make a foray into dicta and address other
situations not before us.

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86 FERGUSON v. CHARLESTON
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and unique fact that characterizes this case is that Policy
M–7 was designed to obtain evidence of criminal conduct by
the tested patients that would be turned over to the police
and that could be admissible in subsequent criminal prosecu-
tions. While respondents are correct that drug abuse both
was and is a serious problem, “the gravity of the threat alone
cannot be dispositive of questions concerning what means
law enforcement officers may employ to pursue a given pur-
pose.” Indianapolis v. Edmond, 531 U. S., at 42–43. The
Fourth Amendment’s general prohibition against nonconsen-
sual, warrantless, and suspicionless searches necessarily ap-
plies to such a policy. See, e. g., Chandler, 520 U. S., at 308;
Skinner, 489 U. S., at 619.
Accordingly, the judgment of the Court of Appeals is re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Kennedy, concurring in the judgment.
I agree that the search procedure in issue cannot be sus-
tained under the Fourth Amendment. My reasons for this
conclusion differ somewhat from those set forth by the
Court, however, leading to this separate opinion.
I
The Court does not dispute that the search policy at some
level serves special needs, beyond those of ordinary law en-
forcement, such as the need to protect the health of mother
and child when a pregnant mother uses cocaine. Instead,
the majority characterizes these special needs as the “ulti-
mate goal[s]” of the policy, as distinguished from the policy’s
“immediate purpose,” the collection of evidence of drug use,
which, the Court reasons, is the appropriate inquiry for the
special needs analysis. Ante, at 81–84.
The majority views its distinction between the ultimate
goal and immediate purpose of the policy as critical to its

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87 Cite as: 532 U. S. 67 (2001)
Kennedy, J., concurring in judgment
analysis. Ante, at 83–84. The distinction the Court makes,
however, lacks foundation in our special needs cases. All of
our special needs cases have turned upon what the majority
terms the policy’s ultimate goal. For example, in Skinner
v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989),
had we employed the majority’s distinction, we would have
identified as the relevant need the collection of evidence of
drug and alcohol use by railway employees. Instead, we
identified the relevant need as “[t]he Government’s interest
in regulating the conduct of railroad employees to ensure
[railroad] safety.” Id., at 620. In Treasury Employees v.
Von Raab, 489 U. S. 656 (1989), the majority’s distinction
should have compelled us to isolate the relevant need as the
gathering of evidence of drug abuse by would-be drug inter-
diction officers. Instead, the special needs the Court identi-
fied were the necessities “to deter drug use among those
eligible for promotion to sensitive positions within the
[United States Customs] Service and to prevent the promo-
tion of drug users to those positions.” Id., at 666. In Ver-
nonia School Dist. 47J v. Acton, 515 U. S. 646 (1995), the
majority’s distinction would have required us to identify the
immediate purpose of gathering evidence of drug use by
student-athletes as the relevant “need” for purposes of the
special needs analysis. Instead, we sustained the policy as
furthering what today’s majority would have termed the pol-
icy’s ultimate goal: “[d]eterring drug use by our Nation’s
schoolchildren,” and particularly by student-athletes, be-
cause “the risk of immediate physical harm to the drug user
or those with whom he is playing his sport is particularly
high.” Id., at 661–662.
It is unsurprising that in our prior cases we have concen-
trated on what the majority terms a policy’s ultimate goal,
rather than its proximate purpose. By very definition, in
almost every case the immediate purpose of a search policy
will be to obtain evidence. The circumstance that a particu-
lar search, like all searches, is designed to collect evidence

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88 FERGUSON v. CHARLESTON
Kennedy, J., concurring in judgment
of some sort reveals nothing about the need it serves. Put a
different way, although procuring evidence is the immediate
result of a successful search, until today that procurement
has not been identified as the special need which justifies
the search.
II
While the majority’s reasoning seems incorrect in the re-
spects just discussed, I agree with the Court that the search
policy cannot be sustained. As the majority demonstrates
and well explains, there was substantial law enforcement
involvement in the policy from its inception. None of our
special needs precedents has sanctioned the routine inclusion
of law enforcement, both in the design of the policy and in
using arrests, either threatened or real, to implement the
system designed for the special needs objectives. The spe-
cial needs cases we have decided do not sustain the active
use of law enforcement, including arrest and prosecutions,
as an integral part of a program which seeks to achieve
legitimate, civil objectives. The traditional warrant and
probable-cause requirements are waived in our previous
cases on the explicit assumption that the evidence obtained
in the search is not intended to be used for law enforcement
purposes. Most of those tested for drug use under the pol-
icy at issue here were not brought into direct contact with
law enforcement. This does not change the fact, however,
that, as a systemic matter, law enforcement was a part of
the implementation of the search policy in each of its applica-
tions. Every individual who tested positive was given a let-
ter explaining the policy not from the hospital but from the
solicitor’s office. Everyone who tested positive was told a
second positive test or failure to undergo substance abuse
treatment would result in arrest and prosecution. As the
Court holds, the hospital acted, in some respects, as an insti-
tutional arm of law enforcement for purposes of the policy.
Under these circumstances, while the policy may well have
served legitimate needs unrelated to law enforcement, it had

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89 Cite as: 532 U. S. 67 (2001)
Kennedy, J., concurring in judgment
as well a penal character with a far greater connection to law
enforcement than other searches sustained under our special
needs rationale.
In my view, it is necessary and prudent to be explicit in
explaining the limitations of today’s decision. The begin-
ning point ought to be to acknowledge the legitimacy of the
State’s interest in fetal life and of the grave risk to the life
and health of the fetus, and later the child, caused by cocaine
ingestion. Infants whose mothers abuse cocaine during
pregnancy are born with a wide variety of physical and neu-
rological abnormalities. See Chiriboga, Brust, Bateman, &
Hauser, Dose-Response Effect of Fetal Cocaine Exposure
on Newborn Neurologic Function, 103 Pediatrics 79 (1999)
(finding that, compared with unexposed infants, cocaine-
exposed infants experienced higher rates of intrauterine
growth retardation, smaller head circumference, global hy-
pertonia, coarse tremor, and extensor leg posture). Pre-
natal exposure to cocaine can also result in developmen-
tal problems which persist long after birth. See Arendt,
Angelopoulos, Salvator, & Singer, Motor Development of
Cocaine-exposed Children at Age Two Years, 103 Pediatrics
86 (1999) (concluding that, at two years of age, children who
were exposed to cocaine in utero exhibited significantly less
fine and gross motor development than those not so exposed);
Chasnoff et al., Prenatal Exposure to Cocaine and Other
Drugs: Outcome at Four to Six Years, 846 Annals of the New
York Academy of Sciences 314, 319–320 (J. Harvey and B.
Kosofsky eds. 1998) (finding that 4- to 6-year-olds who were
exposed to cocaine in utero exhibit higher instances of de-
pression, anxiety, social, thought, and attention problems,
and delinquent and aggressive behaviors than their unex-
posed counterparts). There can be no doubt that a mother’s
ingesting this drug can cause tragic injury to a fetus and a
child. There should be no doubt that South Carolina can
impose punishment upon an expectant mother who has so
little regard for her own unborn that she risks causing him

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90 FERGUSON v. CHARLESTON
Kennedy, J., concurring in judgment
or her lifelong damage and suffering. The State, by taking
special measures to give rehabilitation and training to expec-
tant mothers with this tragic addiction or weakness, acts
well within its powers and its civic obligations.
The holding of the Court, furthermore, does not call into
question the validity of mandatory reporting laws such as
child abuse laws which require teachers to report evidence
of child abuse to the proper authorities, even if arrest and
prosecution is the likely result. That in turn highlights the
real difficulty. As this case comes to us, and as reputable
sources confirm, see K. Farkas, Training Health Care and
Human Services Personnel in Perinatal Substance Abuse, in
Drug & Alcohol Abuse Reviews, Substance Abuse During
Pregnancy and Childhood 13, 27–28 (R. Watson ed. 1995);
U. S. Dept. of Health and Human Services, Substance Abuse
and Mental Health Services Administration, Pregnant,
Substance-Using Women 48 (1993), we must accept the
premise that the medical profession can adopt acceptable cri-
teria for testing expectant mothers for cocaine use in order
to provide prompt and effective counseling to the mother
and to take proper medical steps to protect the child. If
prosecuting authorities then adopt legitimate procedures to
discover this information and prosecution follows, that ought
not to invalidate the testing. One of the ironies of the case,
then, may be that the program now under review, which
gives the cocaine user a second and third chance, might be
replaced by some more rigorous system. We must, how-
ever, take the case as it comes to us; and the use of handcuffs,
arrests, prosecutions, and police assistance in designing and
implementing the testing and rehabilitation policy cannot be
sustained under our previous cases concerning mandatory
testing.
III
An essential, distinguishing feature of the special needs
cases is that the person searched has consented, though the
usual voluntariness analysis is altered because adverse con-

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91 Cite as: 532 U. S. 67 (2001)
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sequences (e. g., dismissal from employment or disqualifica-
tion from playing on a high school sports team) will follow
from refusal. The person searched has given consent, as de-
fined to take into account that the consent was not voluntary
in the full sense of the word. See Skinner, 489 U. S., at 615;
Von Raab, 489 U. S., at 660–661; Acton, 515 U. S., at 650–651.
The consent, and the circumstances in which it was given,
bear upon the reasonableness of the whole special needs
program.
Here, on the other hand, the question of consent, even with
the special connotation used in the special needs cases, has
yet to be decided. Indeed, the Court finds it necessary to
take the unreal step of assuming there was no voluntary con-
sent at all. Thus, we have erected a strange world for de-
ciding the case.
My discussion has endeavored to address the permissibil-
ity of a law enforcement purpose in this artificial context.
The role played by consent might have affected our assess-
ment of the issues. My concurrence in the judgment, fur-
thermore, should not be interpreted as having considered or
resolved the important questions raised by Justice Scalia
with reference to whether limits might be imposed on the
use of the evidence if in fact it were obtained with the pa-
tient’s consent and in the context of the special needs pro-
gram. Had we the prerogative to discuss the role played by
consent, the case might have been quite a different one. All
are in agreement, of course, that the Court of Appeals will
address these issues in further proceedings on remand.
With these remarks, I concur in the judgment.
Justice Scalia, with whom The Chief Justice and
Justice Thomas join as to Part II, dissenting.
There is always an unappealing aspect to the use of doc-
tors and nurses, ministers of mercy, to obtain incriminating
evidence against the supposed objects of their ministration—
although here, it is correctly pointed out, the doctors and

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92 FERGUSON v. CHARLESTON
Scalia, J., dissenting
nurses were ministering not just to the mothers but also to
the children whom their cooperation with the police was
meant to protect. But whatever may be the correct social
judgment concerning the desirability of what occurred here,
that is not the issue in the present case. The Constitution
does not resolve all difficult social questions, but leaves the
vast majority of them to resolution by debate and the demo-
cratic process—which would produce a decision by the citi-
zens of Charleston, through their elected representatives, to
forbid or permit the police action at issue here. The ques-
tion before us is a narrower one: whether, whatever the
desirability of this police conduct, it violates the Fourth
Amendment’s prohibition of unreasonable searches and sei-
zures. In my view, it plainly does not.
I
The first step in Fourth Amendment analysis is to identify
the search or seizure at issue. What petitioners, the Court,
and to a lesser extent the concurrence really object to is
not the urine testing, but the hospital’s reporting of positive
drug-test results to police. But the latter is obviously not a
search. At most it may be a “derivative use of the product
of a past unlawful search,” which, of course, “work[s] no new
Fourth Amendment wrong” and “presents a question, not of
rights, but of remedies.” United States v. Calandra, 414
U. S. 338, 354 (1974). There is only one act that could con-
ceivably be regarded as a search of petitioners in the present
case: the taking of the urine sample. I suppose the testing
of that urine for traces of unlawful drugs could be considered
a search of sorts, but the Fourth Amendment protects only
against searches of citizens’ “persons, houses, papers, and ef-
fects”; and it is entirely unrealistic to regard urine as one of
the “effects” (i. e., part of the property) of the person who
has passed and abandoned it. Cf. California v. Greenwood,
486 U. S. 35 (1988) (garbage left at curb is not property pro-
tected by the Fourth Amendment). Some would argue,

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I suppose, that testing of the urine is prohibited by some
generalized privacy right “emanating” from the “penum-
bras” of the Constitution (a question that is not before us);
but it is not even arguable that the testing of urine that has
been lawfully obtained is a Fourth Amendment search. (I
may add that, even if it were, the factors legitimizing the
taking of the sample, which I discuss below, would likewise
legitimize the testing of it.)
It is rudimentary Fourth Amendment law that a search
which has been consented to is not unreasonable. There is
no contention in the present case that the urine samples
were extracted forcibly. The only conceivable bases for say-
ing that they were obtained without consent are the conten-
tions (1) that the consent was coerced by the patients’ need
for medical treatment, (2) that the consent was uninformed
because the patients were not told that the tests would in-
clude testing for drugs, and (3) that the consent was unin-
formed because the patients were not told that the results
of the tests would be provided to the police.1 (When the
court below said that it was reserving the factual issue of
consent, see 186 F. 3d 469, 476 (CA4 1999), it was referring
at most to these three—and perhaps just to the last two.)
1 The Court asserts that it is improper to “disaggregate the taking and
testing of the urine sample from the reporting of the results to the police,”
because “in our special needs cases, we have routinely treated urine
screens taken by state agents as searches within the meaning of the
Fourth Amendment.” Ante, at 76, n. 9. But in all of those cases, the
urine was obtained involuntarily. See Chandler v. Miller, 520 U. S. 305
(1997); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995); Skinner
v. Railway Labor Executives’ Assn., 489 U. S. 602 (1989); Treasury Em-
ployees v. Von Raab, 489 U. S. 656 (1989). Where the taking of the urine
sample is unconsented (and thus a Fourth Amendment search), the subse-
quent testing and reporting of the results to the police are obviously part
of (or infected by) the same search; but where, as here, the taking of the
sample was not a Fourth Amendment search, it is necessary to consider
separately whether the testing and reporting were.

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94 FERGUSON v. CHARLESTON
Scalia, J., dissenting
Under our established Fourth Amendment law, the last
two contentions would not suffice, even without reference to
the special-needs doctrine. The Court’s analogizing of this
case to Miranda v. Arizona, 384 U. S. 436 (1966), and its
claim that “standards of knowing waiver” apply, ante, at 85,
are flatly contradicted by our jurisprudence, which shows
that using lawfully (but deceivingly) obtained material for
purposes other than those represented, and giving that ma-
terial or information derived from it to the police, is not
unconstitutional. In Hoffa v. United States, 385 U. S. 293
(1966), “[t]he argument [was] that [the informant’s] failure to
disclose his role as a government informant vitiated the con-
sent that the petitioner gave” for the agent’s access to evi-
dence of criminal wrongdoing, id., at 300. We rejected that
argument, because “the Fourth Amendment [does not pro-
tect] a wrongdoer’s misplaced belief that a person to whom
he voluntarily confides his wrongdoing will not reveal it.”
Id., at 302. Because the defendant had voluntarily provided
access to the evidence, there was no reasonable expectation
of privacy to invade. Abuse of trust is surely a sneaky and
ungentlemanly thing, and perhaps there should be (as there
are) laws against such conduct by the government. See,
e. g., 50 U. S. C. § 403–7 (1994 ed., Supp. IV) (prohibiting the
“Intelligence Community[’s]” use of journalists as agents).
That, however, is immaterial for Fourth Amendment pur-
poses, for “however strongly a defendant may trust an appar-
ent colleague, his expectations in this respect are not pro-
tected by the Fourth Amendment when it turns out that the
colleague is a government agent regularly communicating
with the authorities.” United States v. White, 401 U. S. 745,
749 (1971) (emphasis added). The Hoffa line of cases, I may
note, does not distinguish between operations meant to catch
a criminal in the act, and those meant only to gather evi-
dence of prior wrongdoing. See, e. g., United States v.
Miller, 425 U. S. 435, 440–443 (1976); cf. Illinois v. Perkins,
496 U. S. 292, 298 (1990) (relying on Hoffa in holding the

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95 Cite as: 532 U. S. 67 (2001)
Scalia, J., dissenting
Miranda rule did not require suppression of an inmate con-
fession given an agent posing as a fellow prisoner).
Until today, we have never held—or even suggested—that
material which a person voluntarily entrusts to someone else
cannot be given by that person to the police, and used for
whatever evidence it may contain.2 Without so much as dis-
cussing the point, the Court today opens a hole in our Fourth
Amendment jurisprudence, the size and shape of which is
entirely indeterminate. Today’s holding would be remark-
able enough if the confidential relationship violated by the
police conduct were at least one protected by state law. It
would be surprising to learn, for example, that in a State
which recognizes a spousal evidentiary privilege the police
cannot use evidence obtained from a cooperating husband or
wife. But today’s holding goes even beyond that, since
there does not exist any physician-patient privilege in South
Carolina. See, e. g., Peagler v. Atlantic Coast R. R. Co., 232
S. C. 274, 101 S. E. 2d 821 (1958). Since the Court declines
even to discuss the issue, it leaves law enforcement officials
entirely in the dark as to when they can use incriminating
evidence obtained from “trusted” sources.3 Presumably the
2 Hoffa did say that the Fourth Amendment can be violated by “guileful
as well as by forcible intrusions into a constitutionally protected area.”
385 U. S., at 301. The case it cited for that proposition, however, shows
what it meant: Gouled v. United States, 255 U. S. 298 (1921), found a
Fourth Amendment violation where a Government agent who had ob-
tained access to the defendant’s office on pretext of a social visit carried
away private papers. “Guile” (rather than force) had been used to go
beyond the scope of the consented access to evidence. Whereas the search
in Gouled was invalidated, the search was approved in Lewis v. United
States, 385 U. S. 206 (1966), where an equally guileful agent stayed within
the bounds of the access to defendant’s home, carrying away only a pack-
age of drugs that had been voluntarily provided.
3 The Court contends that its opinion does not leave law enforcement
officials in the dark as to when they can use incriminating evidence from
trusted sources, since it “do[es] not address a case in which doctors inde-
pendently complied with reporting requirements,” ante, at 85, n. 24. I
find it hard to understand how not addressing that point fails to leave

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96 FERGUSON v. CHARLESTON
Scalia, J., dissenting
lines will be drawn in the case-by-case development of a
whole new branch of Fourth Amendment jurisprudence, tak-
ing yet another social judgment (which confidential relation-
ships ought not be invaded by the police) out of democratic
control, and confiding it to the uncontrolled judgment of this
Court—uncontrolled because there is no common-law prece-
dent to guide it. I would adhere to our established law,
which says that information obtained through violation of a
relationship of trust is obtained consensually, and is hence
not a search.4
it enshrouded in darkness—unless the Court means that such reporting
requirements are clearly bad. (If voluntary betrayal of a trust in mere
cooperation with the police constitutes a Fourth Amendment search,
surely betrayal of a trust at the direction of the legislature must be.) But
in any event, reporting requirements are an infinitesimal part of the prob-
lem. What about a doctor’s—or a spouse’s—voluntary provision of infor-
mation to the police, without the compulsion of a statute?
4 The Court contends that I am “mischaracteriz[ing]” its opinion, since
the Court is merely “assum[ing] for purposes of decision that the patients
did not consent to the searches, and [leaves] the question of consent for
the Court of Appeals to determine.” Ibid. That is not responsive. The
“question of consent” that the Court leaves open is whether the patients
consented, not merely to the taking of the urine samples, but to the drug
testing in particular, and to the provision of the results to the police.
Consent to the taking of the samples alone—or even to the taking of the
samples plus the drug testing—does not suffice. The Court’s contention
that the question of the sufficiency of that more limited consent is not
before us because respondents did not raise it, see ante, at 74, n. 6, is
simply mistaken. Part II of respondents’ brief, entitled “The Petitioners
consented to the searches,” argues that “Petitioners . . . freely and volun-
tarily . . . provided the urine samples”; that “each of the Petitioners signed
a consent to treatment form which authorized the MUSC medical staff to
conduct all necessary tests of those urine samples—including drug tests”;
and that “[t]here is no precedent in this Court’s Fourth Amendment search
and seizure jurisprudence which imposes any . . . requirement that the
searching agency inform the consenting party that the results of the
search will be turned over to law enforcement.” Brief for Respondents
38–39. The brief specifically takes issue with the District Court’s charge
to the jury—which the Court chooses to accept as an unexaminable
“given,” see ante, at 74, n. 6—that “the Respondents were required to

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There remains to be considered the first possible basis for
invalidating this search, which is that the patients were co-
erced to produce their urine samples by their necessitous
circumstances, to wit, their need for medical treatment of
their pregnancy. If that was coercion, it was not coercion
applied by the government—and if such nongovernmental
coercion sufficed, the police would never be permitted to use
the ballistic evidence obtained from treatment of a patient
with a bullet wound. And the Fourth Amendment would
invalidate those many state laws that require physicians to
report gunshot wounds,5 evidence of spousal abuse,6 and (like
the South Carolina law relevant here, see S. C. Code Ann.
§ 20–7–510 (2000)) evidence of child abuse.7
show that the Petitioners consented to MUSC disclosing the information
to law enforcement.” Brief for Respondents 39.
In sum, I think it clear that the Court’s disposition requires the holding
that violation of a relationship of trust constitutes a search. The opinion
itself implies that in its description of the issue left for the Court of Ap-
peals on remand, see ante, at 77, n. 11: whether “the tests were performed
without the informed consent of the patients,” ante, at 77 (emphasis
added)—informed, that is, that the urine would be tested for drugs and
that the results would be given to the police. I am happy, of course, to
accept the Court’s illogical assurance that it intends no such holding, and
urge the Court of Appeals on remand to do the same.
5 See, e. g., Cal. Penal Code Ann. § 11160 (West Supp. 2001); N. Y. Penal
Law § 265.25 (McKinney 2000); S. C. Code Ann. § 16–3–1072 (Supp. 2000).
6 See, e. g., Cal. Penal Code Ann. § 11160 (West Supp. 2001); Colo. Rev.
Stat. § 12–36–135 (2000).
7 The Court contends that I “would have us . . . resolve the issue of
consent in favor of respondents,” whereas the Court’s opinion “more pru-
dent[ly] allow[s] [the Court of Appeals] to resolve the legal and factual
issues in the first instance, and . . . express[es] no view on those issues.”
Ante, at 77, n. 11. That is not entirely so. The Court does not resolve
the factual issue whether there was consent to the drug testing and to
providing the results to the police; and neither do I. But the Court does
resolve the legal issue whether that consent was necessary, see ante, at
77, 84–85, and n. 24; and so do I. Since the Court concludes it was neces-
sary, the factual inquiry is left for the Fourth Circuit on remand. Since I
conclude it was not necessary (and since no one contends that the taking

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98 FERGUSON v. CHARLESTON
Scalia, J., dissenting
II
I think it clear, therefore, that there is no basis for saying
that obtaining of the urine sample was unconstitutional.
The special-needs doctrine is thus quite irrelevant, since it
operates only to validate searches and seizures that are oth-
erwise unlawful. In the ensuing discussion, however, I shall
assume (contrary to legal precedent) that the taking of the
urine sample was (either because of the patients’ necessitous
circumstances, or because of failure to disclose that the urine
would be tested for drugs, or because of failure to disclose
that the results of the test would be given to the police)
coerced. Indeed, I shall even assume (contrary to common
sense) that the testing of the urine constituted an uncon-
sented search of the patients’ effects. On those assump-
tions, the special-needs doctrine would become relevant; and,
properly applied, would validate what was done here.
The conclusion of the Court that the special-needs doctrine
is inapplicable rests upon its contention that respondents
“undert[ook] to obtain [drug] evidence from their patients”
not for any medical purpose, but “for the specific purpose
of incriminating those patients.” Ante, at 85 (emphasis in
original). In other words, the purported medical rationale
was merely a pretext; there was no special need. See Skin-
ner v. Railway Labor Executives’ Assn., 489 U. S. 602, 621,
n. 5 (1989). This contention contradicts the District Court’s
finding of fact that the goal of the testing policy “was not to
arrest patients but to facilitate their treatment and protect
both the mother and unborn child.” App. to Pet. for Cert.
A–38.8 This finding is binding upon us unless clearly erro-
of the urine sample was unconsented), there is on my analysis no factual
consent issue remaining.
8 The Court believes that this finding “must be read in light of ” the
District Court’s comment that “ ‘these searches were not done by the med-
ical university for independent purposes. . . . [T]he police came in and
there was an agreement reached that the positive screens would be shared
with the police. And then the screen is not done independent of police,

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99 Cite as: 532 U. S. 67 (2001)
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neous, see Fed. Rule Civ. Proc. 52(a). Not only do I find it
supportable; I think any other finding would have to be
overturned.
The cocaine tests started in April 1989, neither at police
suggestion nor with police involvement. Expectant moth-
ers who tested positive were referred by hospital staff
for substance-abuse treatment, ante, at 70 (opinion of the
Court)—an obvious health benefit to both mother and child.
See App. 43 (testimony that a single use of cocaine can cause
fetal damage). And, since “[i]nfants whose mothers abuse
cocaine during pregnancy are born with a wide variety of
physical and neurological abnormalities,” ante, at 89 (Ken-
nedy, J., concurring in judgment), which require medical at-
tention, see Brief in Opposition A76–A77, the tests were of
additional medical benefit in predicting needed postnatal
treatment for the child. Thus, in their origin—before the
police were in any way involved—the tests had an immedi-
ate, not merely an “ultimate,” ante, at 82 (opinion of the
Court), purpose of improving maternal and infant health.
Several months after the testing had been initiated, a nurse
discovered that local police were arresting pregnant users of
cocaine for child abuse, the hospital’s general counsel wrote
the county solicitor to ask “what, if anything, our Medical
Center needs to do to assist you in this matter,” App. 499
(South Carolina law requires child abuse to be reported, see
S. C. Code Ann. § 20–7–510), the police suggested ways to
avoid tainting evidence, and the hospital and police in con-
junction used the testing program as a means of securing
what the Court calls the “ultimate” health benefit of coercing
drug-abusing mothers into drug treatment. See ante, at 70–
73, 82. Why would there be any reason to believe that, once
it’s done in conjunction with the police and that implicates the Fourth
Amendment.’ ” Ante, at 75, n. 8, quoting App. 1247–1249. But all this
shows is that the explicit finding of medical purpose was not a finding of
exclusive medical purpose. As discussed later in text, the special-needs
doctrine contains no such exclusivity requirement.

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100 FERGUSON v. CHARLESTON
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this policy of using the drug tests for their “ultimate” health
benefits had been adopted, use of them for their original,
immediate, benefits somehow disappeared, and testing some-
how became in its entirety nothing more than a “pretext”
for obtaining grounds for arrest? On the face of it, this
is incredible. The only evidence of the exclusively arrest-
related purpose of the testing adduced by the Court is that
the police-cooperation policy itself does not describe how to
care for cocaine-exposed infants. See ante, at 73, 82. But
of course it does not, since that policy, adopted months after
the cocaine testing was initiated, had as its only health object
the “ultimate” goal of inducing drug treatment through
threat of arrest. Does the Court really believe (or even
hope) that, once invalidation of the program challenged here
has been decreed, drug testing will cease?
In sum, there can be no basis for the Court’s purported
ability to “distinguis[h] this case from circumstances in which
physicians or psychologists, in the course of ordinary medical
procedures aimed at helping the patient herself, come across
information that . . . is subject to reporting requirements,”
ante, at 80–81, unless it is this: That the addition of a law-
enforcement-related purpose to a legitimate medical purpose
destroys applicability of the “special-needs” doctrine. But
that is quite impossible, since the special-needs doctrine was
developed, and is ordinarily employed, precisely to enable
searches by law enforcement officials who, of course, ordi-
narily have a law enforcement objective. Thus, in Griffin v.
Wisconsin, 483 U. S. 868 (1987), a probation officer received
a tip from a detective that petitioner, a felon on probation,
possessed a firearm. Accompanied by police, he conducted
a warrantless search of petitioner’s home. The weapon was
found and used as evidence in the probationer’s trial for
unlawful possession of a firearm. See id., at 870–872. Af-
firming denial of a motion to suppress, we concluded that the
“special need” of assuring compliance with terms of release

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101 Cite as: 532 U. S. 67 (2001)
Scalia, J., dissenting
justified a warrantless search of petitioner’s home. Notably,
we observed that a probation officer is not
“the police officer who normally conducts searches
against the ordinary citizen. He is an employee of the
State Department of Health and Social Services who,
while assuredly charged with protecting the public in-
terest, is also supposed to have in mind the welfare of
the probationer . . . . In such a setting, we think it
reasonable to dispense with the warrant requirement.”
Id., at 876–877.
Like the probation officer, the doctors here do not “ordinarily
conduc[t] searches against the ordinary citizen,” and they are
“supposed to have in mind the welfare of the [mother and
child].” That they have in mind in addition the provision of
evidence to the police should make no difference. The Court
suggests that if police involvement in this case was in some
way incidental and after-the-fact, that would make a differ-
ence in the outcome. See ante, at 80–84. But in Griffin,
even more than here, police were involved in the search from
the very beginning; indeed, the initial tip about the gun came
from a detective. Under the factors relied upon by the
Court, the use of evidence approved in Griffin would have
been permitted only if the parole officer had been untrained
in chain-of-custody procedures, had not known of the possi-
bility a gun was present, and had been unaccompanied by
police when he simply happened upon the weapon. Why
any or all of these is constitutionally significant is baffling.
Petitioners seek to distinguish Griffin by observing that
probationers enjoy a lesser expectation of privacy than does
the general public. That is irrelevant to the point I make
here, which is that the presence of a law enforcement pur-
pose does not render the special-needs doctrine inapplicable.
In any event, I doubt whether Griffin’s reasonable expec-
tation of privacy in his home was any less than petition-
ers’ reasonable expectation of privacy in their urine taken,

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102 FERGUSON v. CHARLESTON
Scalia, J., dissenting
or in the urine tests performed, in a hospital—especially
in a State such as South Carolina, which recognizes no
physician-patient testimonial privilege and requires the phy-
sician’s duty of confidentiality to yield to public policy, see
McCormick v. England, 328 S. C. 627, 633, 640–642, 494 S. E.
2d 431, 434, 438–439 (App. 1997); and which requires medi-
cal conditions that indicate a violation of the law to be re-
ported to authorities, see, e. g., S. C. Code Ann. § 20–7–510
(2000) (child abuse). Cf. Whalen v. Roe, 429 U. S. 589, 597–
598 (1977) (privacy interest does not forbid government to
require hospitals to provide, for law enforcement purposes,
names of patients receiving prescriptions of frequently
abused drugs).
The concurrence makes essentially the same basic error as
the Court, though it puts the point somewhat differently:
“The special needs cases we have decided,” it says, “do not
sustain the active use of law enforcement . . . as an integral
part of a program which seeks to achieve legitimate, civil
objectives.” Ante, at 88. Griffin shows that is not true.
Indeed, Griffin shows that there is not even any truth in
the more limited proposition that our cases do not support
application of the special-needs exception where the “legiti-
mate, civil objectives” are sought only through the use of
law enforcement means. (Surely the parole officer in Griffin
was using threat of reincarceration to assure compliance
with parole.) But even if this latter proposition were true, it
would invalidate what occurred here only if the drug testing
sought exclusively the “ultimate” health benefits achieved by
coercing the mothers into drug treatment through threat of
prosecution. But in fact the drug testing sought, independ-
ently of law enforcement involvement, the “immediate”
health benefits of identifying drug-impaired mother and child
for necessary medical treatment. The concurrence concedes
that if the testing is conducted for medical reasons, the fact
that “prosecuting authorities then adopt legitimate proce-
dures to discover this information and prosecution follows

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103 Cite as: 532 U. S. 67 (2001)
Scalia, J., dissenting
. . . ought not to invalidate the testing.” Ante, at 90 (empha-
sis added). But here the police involvement in each case did
take place after the testing was conducted for independ-
ent reasons. Surely the concurrence cannot mean that no
police-suggested procedures (such as preserving the chain of
custody of the urine sample) can be applied until after the
testing; or that the police-suggested procedures must have
been designed after the testing. The facts in Griffin (and
common sense) show that this cannot be so. It seems to me
that the only real distinction between what the concurrence
must reasonably be thought to be approving, and what we
have here, is that here the police took the lesser step of ini-
tially threatening prosecution rather than bringing it.
* * *
As I indicated at the outset, it is not the function of this
Court—at least not in Fourth Amendment cases—to weigh
petitioners’ privacy interest against the State’s interest in
meeting the crisis of “crack babies” that developed in the
late 1980’s. I cannot refrain from observing, however, that
the outcome of a wise weighing of those interests is by no
means clear. The initial goal of the doctors and nurses who
conducted cocaine testing in this case was to refer pregnant
drug addicts to treatment centers, and to prepare for neces-
sary treatment of their possibly affected children. When
the doctors and nurses agreed to the program providing test
results to the police, they did so because (in addition to the
fact that child abuse was required by law to be reported)
they wanted to use the sanction of arrest as a strong incen-
tive for their addicted patients to undertake drug-addiction
treatment. And the police themselves used it for that be-
nign purpose, as is shown by the fact that only 30 of 253
women testing positive for cocaine were ever arrested, and
only 2 of those prosecuted. See App. 1125–1126. It would
not be unreasonable to conclude that today’s judgment,
authorizing the assessment of damages against the county

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104 FERGUSON v. CHARLESTON
Scalia, J., dissenting
solicitor and individual doctors and nurses who participated
in the program, proves once again that no good deed goes
unpunished.
But as far as the Fourth Amendment is concerned: There
was no unconsented search in this case. And if there was,
it would have been validated by the special-needs doctrine.
For these reasons, I respectfully dissent.