Ferguson v. City of Charleston - Oral Argument - October 04, 2000

Ferguson v. City of Charleston

Media for Ferguson v. City of Charleston

Audio Transcription for Opinion Announcement - March 21, 2001 in Ferguson v. City of Charleston

Audio Transcription for Oral Argument - October 04, 2000 in Ferguson v. City of Charleston

William H. Rehnquist:

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

Ms. Smith.

Priscilla J. Smith:

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

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

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

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

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

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

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

David H. Souter:

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

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

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

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

Priscilla J. Smith:

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

David H. Souter:


Priscilla J. Smith:


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

David H. Souter:


Priscilla J. Smith:

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

David H. Souter:

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

That is correct, isn't it?

Priscilla J. Smith:

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

In some cases--

David H. Souter:

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

Didn't they do it routinely?

Priscilla J. Smith:

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

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

They had just started to do testing--


Priscilla J. Smith:

--pursuant to a listed protocol.