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 operated by the Medical University of South Carolina
(MUSC) became concerned 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 developed a
policy which set forth procedures for identifying and testing
pregnant patients suspected of drug use; required that a chain of
custody be followed when obtaining and testing patients' urine
samples; provided for education and treatment referral for patients
testing positive; 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 patients arrested after
testing positive for cocaine, filed this suit challenging 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 appealed, 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 evidence of a patient's criminal conduct for law
enforcement purposes is an unreasonable search if the patient has
not consented to the procedure. 68 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 authorized by a valid warrant. Pp.
76-86.

															(a) Because MUSC is a state hospital, its staff members are
government actors subject to the Fourth Amendment's strictures. New Jersey v. T. L. 0., 469 U. S. 325 , 335-337.
Moreover, the urine tests at issue were indisputably searches
within that Amendment's meaning. Skinner v. Railway Labor
Executives' Assn., 489 U. S. 602 , 617.
Furthermore, 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' knowledge 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. -'+ 7 J 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 privacy 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 indispensable feature from its
inception was the use of law enforcement to coerce patients into
substance abuse treatment. Respondents' assertion 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 "special needs." The fact that positive test
results were turned over to the 69 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 informed 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 opinion 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 patient'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, Martha F. Davis, Yolanda S. Wu, and Roslyn Powell;
for the American Medical 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. 70 unreasonable search if the patient has not consented to the
procedure. More narrowly, the question is whether the interest in
using the threat of criminal sanctions to deter pregnant women from
using cocaine can justify a departure from the general rule that an
official nonconsensual search is unconstitutional 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 apparent increase
in the use of cocaine by patients who were receiving prenatal
treatment. 1 In response to this perceived 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 treatment. However, despite the referrals, the incidence of
cocaine 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 Carolina, 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 general 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). 71 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 participate, 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 included representatives of MUSC, the police, the
County Substance 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 pregnant
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 cocaine 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. 72 be followed when obtaining and testing urine samples, presumably
to make sure that the results could be used in subsequent 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 Respondents 8. That threat was, as respondents candidly
acknowledge, 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 identification 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 positive drug test, the police were to be
notified (and the patient arrested) only if the patient tested
positive for cocaine a second 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 positive during a prenatal care visit, an opportunity to
avoid arrest 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 policy was in its initial stages, a positive test was
immediately reported to the police, who then promptly arrested the
patient. 73 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 describing 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 prescribe 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 cocaine. Four of
them were arrested during the initial implementation of the policy;
they were not offered the opportunity 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.
Respondents include the city of Charleston, law enforcement
officials who helped develop and enforce the policy, and
representatives 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 investigatory
purposes were unconstitutional searches. Respondents 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 university
for independent purposes. [Instead,] the police came in and there
was an agreement reached that the positive 74 screens would be shared with the police." App. 1248-1249.
Accordingly, the District Court submitted the factual defense 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 appellate panel held that the searches were reasonable as a
matter of law under our line of cases recognizing that "special
needs" may, in certain exceptional circumstances, justify a search
policy designed to serve non-law-enforcement ends.7

															6The 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 UNREASONABLE 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 necessary 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 disclosure 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 incriminating evidence
from their patients. See post, at 94 (dissenting
opinion).

															7The term "special needs" first appeared in Justice Blackmun's
opinion concurring in the judgment in New Jersey v. T. L.
0., 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 probablecause
requirement impracticable .... " Ibid. This Court
subsequently 75 On the understanding "that MUSe personnel conducted the urine
drug screens for medical purposes wholly independent of an intent
to aid law enforcement efforts,"S id., at 477, the majority applied
the balancing test used in Treasury Employees v. Von
Raab, 489 U. S.
656 (1989), and Vernonia School Dist. J,7Jv. Acton, 515 U.
S. 646 (1995), and concluded that the interest in curtailing
the pregnancy complications and medical costs associated with
maternal cocaine use outweighed what the majority termed a minimal
intrusion on the privacy of the patients. In dissent, Judge Blake
concluded 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 AMENDMENT. THE ONLY REASON THE FOURTH AMENDMENT IS
IMPLICATED 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 IMPLICATES THE
FOURTH AMENDMENT." App. 1248-1249. 76 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. Because 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 consent 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. 0., 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
suspicion 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., 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, 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. 77 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.ll

															Because the hospital seeks to justify its authority to conduct
drug tests and to turn the results over to law enforcement agents
without the knowledge or consent of the patients, 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 permissible 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 Employees v. Von
Raab, 489 U. S.
656 (1989), and for high school students participating in
interscholastic sports, Vernonia School Dist. J, 7 J v. Acton, 515 U.
S. 646 (1995). In the fourth case, we struck down such testing
for candidates for designated 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 consent in favor of respondents. Because the Court of Appeals
did not discuss 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); National Collegiate Athletic Assn. v. Smith, 525 U. S. 459 , 470
(1999). 78 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 previous 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 extracurricular activity, involves
a less serious intrusion on privacy than the unauthorized
dissemination of such results to third parties. The reasonable
expectation of privacy enjoyed 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

															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 patient 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 expectation may have adverse consequences because it may deter
patients from 79 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 wrongdoing." Indianapolis v. Edmond, 531 U.
S. 32 , 54 (2000) (dissenting opinion); see also nn. 16-17, infra. In T. L. Q, we made a point of distinguishing
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 obtained pursuant to the
administrative scheme would give rise to an inference 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 80 phasized both in the majority opinions sustaining the programs
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 employees 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
drugtesting program is not designed to serve the ordinary needs of
law enforcement. 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 suspicionless 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 Amendment 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). 81 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, PolicyFinder, 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 intentionally inflicted knife or
gunshot wounds); Ariz. Rev. Stat. Ann. § 13-3620 (Supp. 2000)
(requiring "any ... person having 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 purpose-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 interest
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 simply not in issue here. 82 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 mother's addiction.

															Moreover, throughout the development and application of the
policy, the Charleston prosecutors and police were extensively
involved in the day-to-day administration of the policy. Police and
prosecutors decided who would receive the reports of positive drug
screens and what information would be included with those reports.
App. 78-80, 145-146, 10581060. 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, routinely 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 arrests
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. 83 and off of drugs, the immediate objective of the searches was to
generate evidence for law enforcement purposes 20 in order
to reach that goapl The threat of law enforcement

															20We 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 therapeutic purpose did not disappear is
simply to miss the point. What matters is that under the new policy
developed by the solicitor's office and MUSC, law enforcement
involvement was the means by which that therapeutic purpose was to
be met. Policy M-7 was, at its core, predicated on the use of law
enforcement. The extensive involvement of law enforcement and the
threat of prosecution were, as respondents admitted, essential 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 businesses. That case involved an industry
in which the expectation of privacy in commercial premises was
"particularly attenuated" given the extent to which the industry in
question was closely regulated. Id., at 700. More important
for our purposes, the Court relied on the "plain administrative
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 violations would have been merely incidental to
the purposes of the administrative 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 (REHNQUIST, C. J.,
dissenting); Martinez-Fuerte, 428 U. S., at 561 ("[W]e
deal 84 may ultimately have been intended as a means to an end, but the
direct and primary purpose of MUSC's policy was to ensure 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 respondents' 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 treatment, 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 "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 affirmative reason
for enforcing the strictures of the Fourth Amendment. While state
hospital employees, like other citizens, 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 community 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; Brieffor NARAL Foundation et al. as Amici
Curiae 18-19. 85 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 require.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, cannot 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 PI.

															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 evidence using such methods as chain of
custody, etc .... The question is raised as to whether
pediatricians should function as law enforcement officials. 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 "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." 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 evidence obtained from 'trusted' sources." See post, at 95. With all due respect, we disagree. We do not
address a case in which doctors independently 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 enforcement officers were extensively involved in the
initiation, design, and implementation of the program. In such
circumstances, the Fourth Amendment'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. 86 KENNEDY, J., concurring in judgment

															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 prosecutions. 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 purpose." Indianapolis v. Edmond, 531 U. S.,
at 42-43. The Fourth Amendment's general prohibition against
nonconsensual, warrantless, and suspicionless searches necessarily
applies 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 reversed,
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 sustained
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 enforcement,
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 "ultimate 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 87 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 interdiction officers. Instead, the special needs the
Court identified 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 promotion of
drug users to those positions." Id., at 666. In Vernonia
School Dist. J,7J 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
to day's majority would have termed the policy's ultimate goal:
"[d]eterring drug use by our Nation's schoolchildren," and
particularly by student-athletes, because "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 concentrated
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 particular search, like all searches, is
designed to collect evidence 88 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 respects
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 special 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 policy 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
applications. Every individual who tested positive was given a
letter 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 institutional 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 89 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 to day's decision. The beginning
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 neurological 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, cocaineexposed infants experienced higher rates of
intrauterine growth retardation, smaller head circumference, global
hypertonia, coarse tremor, and extensor leg posture). Prenatal
exposure to cocaine can also result in developmental 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 depression, anxiety,
social, thought, and attention problems, and delinquent and
aggressive behaviors than their unexposed 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 90 KENNEDY, J., concurring in judgment

															or her lifelong damage and suffering. The State, by taking
special measures to give rehabilitation and training to expectant
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 criteria 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, however,
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- 91 sequences (e. g., dismissal from employment or disqualification
from playing on a high school sports team) will follow from
refusal. The person searched has given consent, as defined 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 consent at all. Thus, we
have erected a strange world for deciding the case.

															My discussion has endeavored to address the permissibility of a
law enforcement purpose in this artificial context. The role played
by consent might have affected our assessment of the issues. My
concurrence in the judgment, furthermore, 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
patient's consent and in the context of the special needs program.
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 doctors and
nurses, ministers of mercy, to obtain incriminating evidence
against the supposed objects of their ministrationalthough here, it
is correctly pointed out, the doctors and 92 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 democratic process-which would produce
a decision by the citizens of Charleston, through their elected
representatives, to forbid or permit the police action at issue
here. The question 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 seizures. 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 conceivably 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 effects"; 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 protected by the Fourth
Amendment). Some would argue, 93 I suppose, that testing of the urine is prohibited by some
generalized privacy right "emanating" from the "penumbras" 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 saying that they were obtained
without consent are the contentions (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 include testing for drugs, and (3) that the consent was
uninformed 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 Employees v. Von Raab, 489 U. S. 656 (1989).
Where the taking of the urine sample is unconsented (and thus a
Fourth Amendment search), the subsequent 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. 94 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 material 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 consent that the
petitioner gave" for the agent's access to evidence of criminal
wrongdoing, id., at 300. We rejected that argument, because "the
Fourth Amendment [does not protect] 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 purposes, for "however strongly a defendant may trust an apparent
colleague, his expectations in this respect are not protected 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 evidence 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 95 Miranda rule did not require suppression of an inmate
confession 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 discussing 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 remarkable 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
obtained 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 package 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 independently complied with
reporting requirements," ante, at 85, n. 24. I find it hard
to understand how not addressing that point fails to leave 96 lines will be drawn in the case-by-case development of a whole
new branch of Fourth Amendment jurisprudence, taking yet another
social judgment (which confidential relationships 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 precedent 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 problem.
What about a doctor's--or a spouse's-voluntary provision of
information 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 voluntarily ... 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 97 There remains to be considered the first possible basis for
invalidating this search, which is that the patients were coerced
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 Appeals 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).

															7The Court contends that I "would have us ... resolve the issue
of consent in favor of respondents," whereas the Court's opinion
"more prudent[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 necessary, 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 98 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 otherwise 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 unconsented search of the patients' effects. On
those assumptions, 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 Skinner 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 medical 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, 99 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 mothers 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 (KENNEDY, J., concurring in judgment), which
require medical attention, 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 immediate, 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
conjunction 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 7073,
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. 100 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 somehow
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 arrestrelated 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
lawenforcement-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, ordinarily 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. Affirming denial of a motion to suppress, we
concluded that the "special need" of assuring compliance with terms
of release 101 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 interest, 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 difference 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 possibility 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 purpose does not render
the special-needs doctrine inapplicable. In any event, I doubt
whether Griffin's reasonable expectation of privacy in his home was
any less than petitioners' reasonable expectation of privacy in
their urine taken, 102 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 physician'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 medical conditions that
indicate a violation of the law to be reported to authorities, see, e. g., S. C. Code Ann. § 20-7-510 (2000) (child abuse). Cf. Whalen v. Roe, 429 U. S. 589 , 597598
(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 "legitimate, 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, independently 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 procedures to discover this information and prosecution
follows 103 ... ought not to invalidate the testing." Ante, at 90
(emphasis added). But here the police involvement in each case did take place after the testing was conducted for independent
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 initially 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 necessary 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
incentive for their addicted patients to undertake drug-addiction
treatment. And the police themselves used it for that benign
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 to day's judgment, authorizing the assessment of
damages against the county 104 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.