Ferguson v. City of Charleston

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CRYSTAL M. FERGUSON; PAULA S. 
HALE; ELLEN L. KNIGHT; PATRICIA R.
WILLIAMS; LORI GRIFFIN; PAMELA
PEAR; SANDRA POWELL; LAVERNE
SINGLETON; THERESA JOSEPH;
DARLENE M. NICHOLSON,
Plaintiffs-Appellants,
and
STATE-RECORD COMPANY,
INCORPORATED; THE EVENING POST
PUBLISHING COMPANY,
Intervenors-Plaintiffs,
v.
CITY OF CHARLESTON, South  No. 97-2512
Carolina; HARRISON L. PEOPLES, Dr.;
THOMAS C. ROWLAND, JR., Dr.;
STANLEY C. BAKER, JR., Dr.;
CHARLES B. HANNA, Dr.;
COTESWORTH P. FISHBURNE, Dr.; E.
CONYERS O’BRYAN, Dr.; MELVYN
BERLINSKY; PATRICIA T. SMITH; M. J.
COOPER; HERBERT C. GRANGER;
ROBERT C. LAKE, JR.; PHILLIP D.
SASSER; CLAUDIA W. PEOPLES;
CARROLL V. BING, JR., Dr., as
Trustees of the Medical University
of South Carolina in their official
capacities; REUBEN GREENBERG;

2 FERGUSON v. CITY OF CHARLESTON

CHARLES MOLONY CONDON; DAVID 
SCHWACKE; SHIRLEY BROWN, R.N.;
EDGAR O. HORGER, III, M.D.;
VICTOR DEL BENE; JOHN SANDERS;
WILLIAM B. PITTARD, M.D.; ROGER
NEWMAN, M.D.; HAROLD BIVENS,
M.D.; MELESIA HENRY, R.N.,
personally and in their official
capacities,
Defendants-Appellees.
CENTER FOR CONSTITUTIONAL RIGHTS;
SOUTH CAROLINA MEDICAL
ASSOCIATION; AMERICAN PUBLIC
HEALTH ASSOCIATION; AMERICAN
ACADEMY ON PHYSICIAN AND PATIENT;
SOCIETY OF GENERAL INTERNAL
MEDICINE; AMERICAN ACADEMY OF
ADDICTION PSYCHIATRY;

ASSOCIATION OF MATERNAL AND
CHILD HEALTH PROGRAMS; NATIONAL
MEDICAL ASSOCIATION; GLOBAL
LAWYERS AND PHYSICIANS; ADRIENNE
ASCH, Ph.D., M.S.; JOHN ARRAS,
Ph.D.; JEFFREY BLUSTEIN, Ph.D.;
JAMES CAMPBELL; ARTHUR CAPLAN,
Ph.D.; NANCY NEVELOFF DUBLER,
J.D.; RUTH FADEN, Ph.D., M.P.H.;
JOHN FLETCHER, Ph.D.; JEANINE
GAGE, M.S., R.N., C.S.; LEONARD
GLANTZ, J.D.; SUSAN DORR GOOLD,
M.D., M.H.S.A., M.A.; MICHAEL
GRODIN, M.D., F.A.A.P.; JEFFREY
KAHN, Ph.D., M.P.H.; JAY KATZ,
M.D.; LORETTA KOPELMANN, Ph.D.;

 FERGUSON v. CITY OF CHARLESTON 3

STEVEN LEUTHNER, M.D., M.A.; 
RUTH MACKLIN, Ph.D.; MARY FAITH
MARSHALL, Ph.D.; ANNA C.
MASTROIANNI, J.D., M.P.H.; STEVEN
H. MILES, M.D.; LAWRENCE J.
NELSON, Ph.D.; ROBERT M. NELSON, 
M.D., Ph.D.; LINDA FARBER POST,
B.S.N., M.A., J.D.; HOWARD B.
RADEST, Ph.D.; SALLY WEBB, M.D.,
Amicus Curiae.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
C. Weston Houck, District Judge.
(CA-93-2624-2-12)

Argued: January 22, 2002

Decided: October 17, 2002

Before WILKINS and NIEMEYER, Circuit Judges, and
Catherine C. BLAKE, United States District Judge for the District
of Maryland, sitting by designation.

Affirmed in part and reversed and remanded in part by published
opinion. Judge Wilkins wrote the majority opinion, in which Judge
Blake joined. Judge Niemeyer wrote an opinion concurring in the
judgment and dissenting in part.

COUNSEL

ARGUED: Priscilla Joyce Smith, CENTER FOR REPRODUCTIVE
LAW AND POLICY, New York, New York, for Appellants. Robert
Holmes Hood, HOOD LAW FIRM, L.L.C., Charleston, South Caro-
4 FERGUSON v. CITY OF CHARLESTON
lina, for Appellees. ON BRIEF: Julie Rikelman, CENTER FOR
REPRODUCTIVE LAW AND POLICY, New York, New York;
Susan K. Dunn, Charleston, South Carolina; David Rudovsky,
KAIRYS, RUDOVSKY, EPSTEIN, MESSING & RAU, Philadel-
phia, Pennsylvania; Lynn Paltrow, NATIONAL ADVOCATES FOR
PREGNANT WOMEN, New York, New York; Seth Kreimer, Phila-
delphia, Pennsylvania; Susan Frietsche, David Cohen, WOMEN’S
LAW PROJECT, Philadelphia, Pennsylvania, for Appellants. Barbara
W. Showers, Mary Agnes Hood Craig, Deborah Harrison Sheffield,
HOOD LAW FIRM, L.L.C., Charleston, South Carolina, for Appel-
lees. Kimani Paul-Emile, Barbara Olshansky, CENTER FOR CON-
STITUTIONAL RIGHTS, New York, New York, for Amicus Curiae
Center. Daniel N. Abrahamson, San Francisco, California, for Amici
Curiae Medical Association, et al.

OPINION

WILKINS, Circuit Judge:

In 1989, the Medical University of South Carolina (MUSC) estab-
lished, in cooperation with local law enforcement officials, a policy
(the Policy) intended to reduce cocaine use by pregnant women. As
implemented, the Policy involved the testing of patients’ urine to
gather evidence of cocaine use and the disclosure of evidence so
obtained to law enforcement authorities. Appellants are ten former
obstetrical patients at MUSC whose urine was tested pursuant to the
Policy; they brought this action claiming, inter alia, that the testing
of their urine for cocaine constituted a warrantless, unreasonable
search in violation of the Fourth Amendment.1
1
The complaint filed by Appellants named as defendants the City of
Charleston, South Carolina; the trustees of MUSC; Charleston City
Police Chief Reuben Greenberg; former Ninth Circuit Solicitor Charles
Condon; then-current Ninth Circuit Solicitor David Schwacke; Nurse
Shirley Brown; Nurse Melesia Henry; and several physicians and MUSC
officials involved in obstetrical and neonatal care at MUSC. We will
refer to the defendants collectively as "Appellees."
 FERGUSON v. CITY OF CHARLESTON 5
Following trial, the district court submitted to the jury the question
of whether Appellants had consented to the urine drug screens. The
jury found in favor of Appellees. We now must decide whether the
district court erred in denying Appellants’ subsequent motion for
judgment as a matter of law. For the reasons set forth below, we hold
that no rational jury could conclude, from the evidence presented at
trial, that Appellants gave their informed consent to the taking and
testing of their urine for evidence of criminal activity for law enforce-
ment purposes. Our holding encompasses two determinations: first,
that as to most of the Appellants, the record evidence does not support
a finding that Appellants knew that their urine was being analyzed for
evidence of criminal activity for law enforcement purposes; and sec-
ond, that the record evidence does not support a finding that Appel-
lants, for Fourth Amendment purposes, voluntarily submitted to the
searches. Excluded from our holding is Ellen Knight, who, as
explained below, suffered no Fourth Amendment violation. Addition-
ally, we remand for further proceedings as to Darlene Nicholson, who
may not have been searched pursuant to the Policy. In sum, we affirm
in part and reverse and remand in part.

I.

Because we are reviewing the denial of Appellants’ motion for
judgment as a matter of law, we must view the evidence in the light
most favorable to Appellees and draw all reasonable inferences in
their favor without weighing the evidence or assessing the witnesses’
credibility. See Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998).
Viewed in light of that standard, the evidence at trial demonstrated the
following facts.

A. FACTS REGARDING THE POLICY

In the fall of 1989, MUSC instituted a policy providing for the test-
ing of the urine of pregnant women for cocaine use and for the report-
ing, under certain circumstances, of test results to law enforcement
officials. The Policy was implemented both at the MUSC hospital and
at the MUSC clinic.2 The impetus for the Policy came from Nurse
2
Although both are part of the MUSC system, the MUSC hospital and
the MUSC clinic appear to be administratively separate. Pregnant women
received outpatient prenatal care at the clinic; the hospital provided inpa-
tient services, including delivery.
6 FERGUSON v. CITY OF CHARLESTON
Shirley Brown, a case manager in the obstetrics department at the
MUSC hospital. In the previous year, personnel in the obstetrics
department had noted an increase in cocaine use by pregnant women.
Although these women were referred to substance abuse treatment,
such referrals were ineffective in stemming the tide of "cocaine
babies" being born at the MUSC hospital. After hearing a report
regarding a program in place elsewhere in South Carolina, which
involved bringing charges of child abuse against women who used
cocaine during pregnancy, Brown spoke with an MUSC official, who
in turn contacted the Ninth Circuit Solicitor (chief prosecuting attor-
ney) concerning the development of a program for application at
MUSC to detect and deter cocaine use by pregnant women.3

Eventually, a task force was formed that included Nurse Brown,
the Solicitor, the Chief of the Charleston City Police Department
(CCPD), representatives from the Charleston County Substance
Abuse Commission (CCSAC), and doctors from various departments
at MUSC involved in perinatal care. By mid-October 1989, these
meetings had produced the initial version of the Policy at issue in this
litigation. According to the terms of the initial Policy, MUSC mater-
nity patients were to be tested if any of nine criteria was met.4 The
initial Policy provided that if a patient had not yet delivered her baby,
she was to be given a referral to CCSAC and counseling regarding the
harmful effects of drug use during pregnancy. Upon a second positive
test or a failure to comply with treatment obligations, the patient
would be arrested.5 If a patient tested positive for cocaine upon deliv-
3
Arguably, the development of such a program was unnecessary;
MUSC personnel could have reported positive urine drug screens
obtained during the normal course of medical treatment to law enforce-
ment personnel under the South Carolina child abuse and neglect report-
ing statute, S.C. Code Ann. § 20-7-510 (Law. Co-op. Supp. 2001). Such
a course of action was not followed, however.
4
Those criteria were: (1) separation of the placenta from the uterine
wall; (2) intrauterine fetal death; (3) no prenatal care; (3) late prenatal
care (beginning after 24 weeks gestation); (4) incomplete prenatal care
(fewer than five visits); (6) preterm labor with no obvious cause; (7) a
history of cocaine use; (8) unexplained birth defects; and (9) intrauterine
growth retardation with no obvious cause.
5
Although documents related to the Policy indicate that arrests were
not to be made until a patient had tested positive a second time or failed
 FERGUSON v. CITY OF CHARLESTON 7
ering a child, she was to be arrested "as soon as medically possible."
J.A. 1448.

In early 1990, the Policy was amended to focus more on patient
education. To that end, two of the doctors involved with the Policy
drafted a letter to be given to all women who received prenatal care
at the MUSC clinic. Known as the "To Our Patients" letter, it warned
patients of the dangers of prenatal drug use and further stated:

If you are using drugs, please stop! If you are unable to
stop, please let your doctor know. We want to help mothers
get off drugs for the benefit of both you and your baby. We
will provide you counseling about the harms of drug abuse
and will make arrangements for you to be seen at the Sub-
stance Abuse Clinic. We realize that drug abuse is a very
difficult problem and we will do all that we can to help you.

If, however, we continue to detect evidence of drug abuse
or a failure to follow recommended treatment, we will take
action to protect your unborn child. The Charleston Police,
the solicitor’s office, and the Protective Service Division of
[the Department of Social Services] are also committed to
the protection of unborn and newborn children from the
harms of illegal drug abuse.

We hope that you can understand the tragedy which is
being caused by the continued use of illegal drugs during
pregnancy. This policy of providing warning, counseling
and treatment for pregnant women using illegal drugs is the
best way for us to help. For those women who fail this treat-
ment, we must ask for help to protect the life and health of
our most innocent unborn children.

to comply with treatment obligations, the actual application of the Policy
was not so lenient. Several women were arrested during the initial stages
of the Policy after a single positive drug screen. See Ferguson v. City of
Charleston, 532 U.S. 67, 72 n.5 (2001).
8 FERGUSON v. CITY OF CHARLESTON
6
Id. at 1437. Additionally, patients were shown a video regarding the
dangers of drug abuse during pregnancy.

In an effort to publicize the Policy, the Solicitor recorded a public
service announcement (PSA) that was aired on local television sta-
tions for several months beginning in March 1990. The text of the
PSA was as follows:

When you’re pregnant, just one line of cocaine, a single hit
of crack, rushes to your baby’s body and brain. Within min-
utes your body can be jolted into premature labor risking a
still developing child to stroke, even death. And not only
will you live with the guilt, you could be arrested.

But this is a tragedy you can prevent. If you have a problem
with drugs talk to your doctor or call MUSC at 792-6437.
Trained counselors will guide you through drug rehabilita-
tion and advise you about good prenatal care. And if you
stay with the program you will not be arrested or prose-
cuted.

Wake up from the nightmare. Think about your baby first.

Supp. J.A. 1.

The Policy as revised in 1990 also included a greater "amnesty"
component. Under the revised Policy, all pregnant women who tested
positive for cocaine, including those whose first positive test occurred
in conjunction with the delivery of their children, were referred to
substance abuse treatment. A patient was not arrested unless she
tested positive a second time or failed to fulfill treatment require-
ments. This aspect of the Policy was explained in a letter from the
Solicitor ("the Solicitor’s letter"), which was given to patients after a
positive urine drug screen. In the case of a woman who tested positive
during prenatal care, the letter provided:
6
Appellees assert that the "To Our Patients" letter was in use from the
outset of the Policy, i.e., as early as October 1989. However, Brown’s
testimony established that the letters were not immediately available.
Rather, it appears that the "To Our Patients" letter came into use in Janu-
ary 1990.
 FERGUSON v. CITY OF CHARLESTON 9
During your recent examination you tested positive for
drugs. You have been counseled about the harmful effects
of drugs to you and your baby and referred to Substance
Abuse and Pre-Natal Care by the Medical University. By
these referrals you are being afforded an opportunity to
rehabilitate yourself for the good of yourself and your baby.
Please understand that by using drugs during pregnancy you
are risking death or at least severe long-term harmful effects
to your baby. If you fail to attend Substance Abuse and Pre-
Natal Care you will be arrested by Charleston City Police
and prosecuted by the Office of Solicitor.

J.A. 1432 (first emphasis added). A similar letter was given to women
who tested positive for cocaine use upon the birth of a baby; this letter
informed the patient that a referral had been made to the Department
of Social Services in addition to the CCSAC. This version of the letter
advised women that they would be arrested and prosecuted "[i]f you
fail to complete Substance Abuse Counselling [sic], fail to cooperate
with the Department of Social Services . . . , or if you fail to maintain
clean urine specimens during your Substance Abuse rehabilitation."7
Id. at 1433. Women were requested to sign the Solicitor’s letter as a
means of acknowledging receipt, but a signature on the letter did not
signify agreement to anything.

In addition to the documents related to the Policy, women receiv-
ing perinatal care at MUSC were generally asked to sign one or both
of two consent-to-treatment forms. The first form ("the ambulatory
consent form") was signed by women who received prenatal care at
the MUSC clinic. This form provided, in pertinent part:

The intention hereof is to grant full authority to such physi-
cians and surgeons and the Medical University Clinics . . .
to administer and perform all and singular any drugs, treat-
ment, tests or diagnostic procedures. . . . I further consent
to the testing for drugs if deemed advisable by or necessary
in the professional judgement of the physician or surgeon.
...
7
There is no evidence that any Appellant was searched after receiving
this version of the Solicitor’s letter.
10 FERGUSON v. CITY OF CHARLESTON
Id. at 1443 (emphasis added). Women admitted to the hospital signed
a consent form ("the general consent form") that included the follow-
ing language:

I acknowledge that I am suffering from a condition requir-
ing Medical/Hospital care and thereby voluntarily consent to
such Medical/Hospital care encompassing diagnostic proce-
dures and medical treatment by my physician, assistants or
designees, as may be necessary in his or her judgment
. . . . I further consent to the testing of drugs if deemed
advisable by my physician.

Id. at 1442 (emphasis added). These forms were the same forms
signed by every patient of the MUSC clinic and hospital; they were
not altered in any way to account for the Policy.

B. FACTS REGARDING INDIVIDUAL APPELLANTS 8

1. Lori Griffin

During the initial stages of her pregnancy, Griffin received prenatal
care at a clinic in McClellanville, South Carolina; that clinic referred
her to the MUSC clinic. In connection with her prenatal care at the
MUSC clinic, Griffin signed an ambulatory consent form on June 28,
1989. The following day, her urine tested positive for cocaine. During
her testimony at trial, Griffin denied being informed that she had
tested positive.

On October 7, Griffin was admitted to the MUSC hospital in pre-
mature labor. She did not sign a general consent form in connection
with this admission. See id. at 1523. During this admission, Griffin’s
urine again tested positive for cocaine. Griffin was arrested on Octo-
ber 10, just as she was released from the hospital. She remained incar-
cerated for the next three weeks, until she delivered her baby on
October 26.
8
At the outset, we note that none of the Appellants were subjected to
forcible extraction of their urine. Throughout this litigation, the parties
have proceeded on the premise that all urine samples were provided at
the request of MUSC personnel.
 FERGUSON v. CITY OF CHARLESTON 11
In January 1990, Griffin was indicted on one count of possession
of cocaine and one count of distribution of cocaine to a person under
the age of 18. She was not prosecuted.

2. Sandra Powell

Powell initially received prenatal care from a physician in McClel-
lanville, who referred her to the MUSC clinic because of her high
blood pressure. Powell signed an ambulatory consent form on May
24, 1989. Powell attended her prenatal appointments until late Sep-
tember, when Hurricane Hugo struck the Charleston area. On October
13, Powell went into labor and was transported to the MUSC hospital
by ambulance. A general consent form was signed by Powell’s
mother. Powell delivered her baby shortly after arriving at the hospi-
tal; both Powell’s and the infant’s urine tested positive for cocaine.
Powell was subsequently arrested, but she was not prosecuted.

3. Ellen Knight

During her pregnancy, Knight received prenatal care at the MUSC
clinic. In connection with this care, Knight signed an ambulatory con-
sent form on October 11, 1989. On the morning of November 6, 1989,
Knight was admitted to the MUSC hospital in labor and subsequently
delivered her baby. The record does not contain a general consent
form signed in connection with this admission.

Knight’s baby’s urine tested positive for cocaine; the record does
not indicate that Knight’s urine was tested. Based on the positive test
from her infant, Knight was arrested on November 8. The charges
were dismissed after she successfully completed a drug treatment pro-
gram.

4. Laverne Singleton

Singleton delivered two children at MUSC during the existence of
the Policy. During the first of these pregnancies, in 1989, Singleton
received no prenatal care. She delivered a son on November 9 at the
MUSC hospital after signing a general consent form upon her admis-
sion to the hospital. Singleton was in active labor when she signed the
12 FERGUSON v. CITY OF CHARLESTON
form and delivered her baby shortly thereafter. At that time, her urine
tested positive for cocaine. Singleton told Nurse Brown that she con-
sented to a urine drug screen "because she thought she was clean." Id.
at 1862 (internal quotation marks omitted). Singleton was arrested on
November 10. In July 1990, she was charged with child neglect; she
was not prosecuted.

In November 1990, Singleton delivered another baby, this time in
the ambulance en route to the MUSC hospital. She later signed a gen-
eral consent form. In connection with her post-partum care, Singleton
again tested positive for cocaine. As an alternative to arrest, Singleton
voluntarily admitted herself to inpatient treatment at the MUSC Insti-
tute of Psychiatry (IOP).

5. Pamela Pear

In the summer of 1990, when she was six or seven months preg-
nant, Pear was referred to the MUSC clinic because she was at high
risk for preterm labor. Pear signed an ambulatory consent form for
care at the clinic on July 13, 1990. At that visit, her urine tested posi-
tive for cocaine. Following the positive test, Pear reviewed and signed
the Solicitor’s letter, reviewed the "To Our Patients" letter,9 and
watched the video on substance abuse during pregnancy. She was
provided with an appointment for substance abuse counseling. In late
August, Pear was admitted to the MUSC hospital in preterm labor and
again tested positive for cocaine. Pear signed a general consent form
in connection with this admission. Pear was arrested upon her dis-
charge on September 1 and spent the remainder of her pregnancy in
jail. She delivered her child on September 14. Although Pear was
charged with distributing cocaine to a person under the age of 18, the
charge was subsequently nolle prossed.
9
Nurse Brown testified that all obstetrical patients in the MUSC clinic
were given the "To Our Patients" letter prior to their urine being
searched, and we must accept this testimony as true as to those patients
who received treatment in the MUSC clinic during the time that the "To
Our Patients" letter was in use. However, Pear’s medical file includes
nursing notes specifically stating that Pear was not given the "To Our
Patients" letter until after the July 1990 search. This conflict in the evi-
dence is immaterial to our resolution of the appeal.
 FERGUSON v. CITY OF CHARLESTON 13
During her trial testimony, Pear acknowledged that she had been
aware, during her pregnancy, that MUSC was testing women for drug
use and that those who tested positive were arrested.

6. Paula Hale

Hale delivered a baby at the MUSC hospital on December 13,
1990, having received no prenatal care during her pregnancy. The
record does not contain a general consent form signed in connection
with this admission. Both Hale and the baby tested positive for
cocaine. Hale was informed of the hazards of drug use and signed the
Solicitor’s letter. She was not arrested at that time, but a warrant for
Hale’s arrest was issued in March 1991, and Hale was arrested in
June of that year. Given the terms of the Policy, we assume that
Hale’s arrest was triggered by her failure to comply with treatment
obligations. As with the other Appellants, however, Hale was not
prosecuted.

7. Crystal Ferguson

Ferguson began receiving prenatal care at the North Charleston
Health Department in early or mid-1991. At some point prior to or
during her pregnancy, Ferguson saw the PSA. At her request, she was
referred to the MUSC clinic after admitting to Health Department per-
sonnel that she was using cocaine. Ferguson signed an ambulatory
consent form in connection with her first visit to the clinic on June
19, 1991. When she signed the form, Ferguson was experiencing pre-
term labor. At that visit, Ferguson tested positive for cocaine. She
thereafter viewed the video on substance abuse and signed the Solici-
tor’s letter. Ferguson was encouraged to enter inpatient substance
abuse treatment but refused because she lacked adequate child care.

On August 4, Ferguson underwent an emergency cesarian section
based on her doctor’s suspicion, later confirmed, that the placenta was
separating from the uterine wall. Ferguson signed a consent form spe-
cific to the surgery, but the record does not include a general consent
form related to Ferguson’s admission to the hospital. Ferguson again
tested positive for cocaine. Although the terms of the Policy provided
that Ferguson was to be arrested at that time, she was allowed to go
home to attend to the details of her mother’s funeral. Ferguson was
14 FERGUSON v. CITY OF CHARLESTON
arrested on August 19 and charged with distributing drugs to a person
under the age of 18; this charge was based on the positive urine drug
screen on June 20. The charge was dismissed in 1993.

8. Theresa Joseph

Joseph saw the PSA while she was pregnant in 1991. Joseph did
not seek prenatal care because she was using cocaine and heroin; in
view of the PSA, she was afraid of being arrested. On June 6, when
she was approximately 15 weeks pregnant, Joseph was admitted to
the MUSC hospital for treatment of a severe infection in her right
foot. Joseph was in dire need of medical treatment; hospital employ-
ees warned her that failure to complete treatment could result in
amputation of her foot or even death. The record does not include a
general consent form signed by Joseph in connection with this admis-
sion. Joseph’s urine tested positive for cocaine. Nursing notes from
Joseph’s medical records indicate that a transfer to the IOP was con-
templated and that Joseph was to be shown the video and the Solici-
tor’s letter prior to this transfer. However, Joseph left the hospital
against medical advice on June 7.

Joseph returned to the hospital on June 14 because of excruciating
pain in her foot; at that time, she signed a general consent form. She
again tested positive for cocaine. Joseph was shown the video, given
the Solicitor’s letter, and advised that she had appointments for prena-
tal care and substance abuse counseling. Joseph was informed that
failure to attend either of these appointments could result in her arrest.

When Joseph was 32 weeks pregnant, she was admitted to the
MUSC hospital for performance of an emergency cesarian section,
and she signed a general consent form. She again tested positive for
cocaine and was arrested on October 23, the day she was discharged
from the hospital. As with the other Appellants, Joseph was not prose-
cuted.

9. Patricia Williams

Williams began receiving prenatal care at the North Charleston
Health Department in December 1991, when she was five or six
 FERGUSON v. CITY OF CHARLESTON 15
months pregnant. At her request, she was transferred to the MUSC
clinic for assistance with her cocaine problem. Williams requested the
transfer because she had heard of the Policy and understood that
MUSC was trying to help pregnant women with their drug problems.
Williams signed an ambulatory consent form at her first visit to the
MUSC clinic on January 15, 1992. She tested positive for cocaine at
that time, whereupon she signed the Solicitor’s letter and watched the
video. She also was referred to substance abuse counseling. Williams
tested positive for cocaine several more times during her pregnancy
but was not arrested (the record does not indicate why). She delivered
her baby at the MUSC hospital on March 10, and again tested positive
for cocaine. The record does not contain a general consent form
signed by Williams in connection with this admission. She was
arrested on March 12 and was charged with distributing cocaine to a
person under the age of 18 based on one incident of prenatal cocaine
use. Williams was not prosecuted, apparently because she success-
fully completed an inpatient drug treatment program.

10. Darlene Nicholson

During her pregnancy in the latter part of 1993, Nicholson received
prenatal care at the MUSC clinic. On October 20, Nicholson signed
an ambulatory consent form in connection with her prenatal care; at
this visit, her urine tested positive for cocaine. During a subsequent
prenatal visit on December 17, she was informed that she was dehy-
drated and needed to be admitted to the hospital. Nicholson signed a
general consent form in connection with this admission. During that
admission, Nicholson’s urine again tested positive for cocaine. At that
time, she was given a choice between voluntary and involuntary com-
mitment to the IOP. Nicholson voluntarily admitted herself to the IOP
for inpatient drug treatment and remained there until January 7, 1994.

After her release, Nicholson continued to use drugs. On February
7, she was involuntarily committed to the IOP by the CCSAC. She
was released two days later, on February 9. Less than a week later,
Nicholson readmitted herself to the IOP for another 30-day course of
substance abuse treatment. On February 21, Nicholson was temporar-
ily released from the IOP and admitted to the MUSC hospital for the
birth of her child; after two days of recovery, she was readmitted to
the IOP and completed her course of treatment.
16 FERGUSON v. CITY OF CHARLESTON
C. PROCEDURAL HISTORY

Appellants filed this action on October 5, 1993, claiming, inter
alia, that the performance of the urine drug screens violated their
Fourth Amendment right to be free from unreasonable searches and
seizures. In response, Appellees contended that the searches were jus-
tified by the special needs doctrine, see Nat’l Treasury Employees
Union v. Von Raab, 489 U.S. 656, 665-66 (1989), or, alternatively,
that Appellants had consented to the searches.

The district court rejected the special needs theory, concluding that
the involvement of law enforcement personnel in the formulation of
the Policy precluded the application of the special needs doctrine.
Following trial, the district court submitted the Fourth Amendment
claim to the jury. The court instructed the jury that it should find for
Appellees if it concluded, after considering the totality of the circum-
stances, that Appellants had consented to the searches. However, the
court also instructed the jury that neither the general consent form nor
the ambulatory consent form was adequate to establish voluntary con-
sent to the searches.

The jury found in favor of Appellees. Appellants moved for judg-
ment as a matter of law, maintaining that a rational jury could not
find, from the evidence presented, that any of the Appellants had con-
sented to the searches. The district court denied the motion, stating
that "[t]here is evidence in the record from which the jury could rea-
sonably conclude that the plaintiff[s] consented to these searches." Id.
at 2728. However, the district court did not specify what evidence
supported the verdict.

On appeal, a majority of this panel affirmed on the basis that the
searches were sustainable under the special needs doctrine. See Fer-
guson v. City of Charleston, 186 F.3d 469, 476-79 (4th Cir. 1999)
(Ferguson I); cf. id. at 486-89 (Blake, J., dissenting). This ruling was
subsequently reversed by the Supreme Court, which concluded that
because "the immediate objective of the searches was to generate evi-
dence for law enforcement purposes," the special needs doctrine did
not apply. Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001)
(Ferguson II). The Court therefore vacated our decision and
remanded for consideration of whether there was sufficient evidence
 FERGUSON v. CITY OF CHARLESTON 17
to support the finding of consent by the jury. See id. at 86. Specifi-
cally, the Court instructed us to determine whether Appellants gave
their "informed consent" to the searches. Id. at 76.

II.

We review the denial of judgment as a matter of law de novo. See
Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 279 (4th Cir. 1999).
In so doing, we must view the evidence in the light most favorable
to Appellees and draw all reasonable inferences in their favor without
weighing the evidence or assessing the witnesses’ credibility. See
Sales, 158 F.3d at 775. "The question is whether a jury, viewing the
evidence in the light most favorable to [Appellees], could have prop-
erly reached the conclusion reached by this jury." Benesh v. Amp-
henol Corp. (In re Wildewood Litig.), 52 F.3d 499, 502 (4th Cir.
1995). We may reverse only if "there can be but one reasonable con-
clusion as to the verdict," Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); if reasonable minds could differ, we must affirm, see
Sales, 158 F.3d at 775.

A.

Before considering the merits of the ruling of the district court, it
is necessary to consider some preliminary matters.

1.

At the outset, we must define with some specificity the Fourth
Amendment event with which we are concerned. One could argue
that the reach of the Fourth Amendment extends only to the process
by which the urine sample was obtained and that any subsequent han-
dling or testing of that sample does not have Fourth Amendment ram-
ifications. This is the position taken by Justice Scalia in his dissent in
Ferguson II. See Ferguson II, 532 U.S. at 92 (Scalia, J., dissenting)
("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.").10
10
Justice Scalia further argued that once the urine sample had been
obtained, any deception practiced upon Appellants by MUSC personnel
was irrelevant to the question of consent. See id. at 94-95 (Scalia, J., dis-
senting). However, Appellees have never contended that they properly
used deception to obtain and test Appellants’ urine.
18 FERGUSON v. CITY OF CHARLESTON
At the other end of the spectrum, one may consider all law enforce-
ment activities related to the urine sample—i.e., the taking of the sam-
ple, the testing of it for evidence of drug use, and the reporting of the
results to law enforcement officials—as covered by the Fourth
Amendment. This seems to be the view taken by the Supreme Court,
see id. at 77, and it is the way the complaint was framed by Appel-
lants and presented to the jury. In the middle is the position that the
Fourth Amendment event at issue comprises the taking and testing of
the urine but not the reporting of results to law enforcement officers.

For purposes of resolving this appeal, it is sufficient to reject the
first possibility—that the only Fourth Amendment event was the
obtaining of the sample. In the special needs context, where the Court
has most often addressed the constitutional implications of urine drug
screens, the Court has uniformly addressed the constitutionality of the
taking of a urine sample and the testing of that sample for evidence
of drug use.11 See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646, 652 (1995); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,
617 (1989). Because there was, as we explain below, insufficient evi-
dence from which a rational jury could conclude that any Appellant
(excluding Ellen Knight and Darlene Nicholson, discussed infra Part
II.A.2) validly consented to the taking and testing of her urine for law
enforcement, as opposed to medical, purposes, we do not consider
whether the disclosure of test results to law enforcement authorities
also implicated the Fourth Amendment.

2.

Additionally, we must address Appellees’ arguments that two of
the Appellants do not have any claim under the Fourth Amendment.
These Appellants are Ellen Knight, who was arrested based on a
search of her newborn’s urine, and Darlene Nicholson, whose urine
was tested, according to Appellees, after the Policy had been sus-
pended.

11
Moreover, the majority in Ferguson II implicitly rejected Justice
Scalia’s position.
 FERGUSON v. CITY OF CHARLESTON 19
a. Ellen Knight

As noted in the statement of facts, Knight herself was never
searched pursuant to the Policy; rather, a search was conducted on the
urine of her newborn child.12 Appellees assert that because Knight did
not have a reasonable expectation of privacy in her child’s urine, she
lacks standing to claim a violation of the Fourth Amendment. See
Rakas v. Illinois, 439 U.S. 128, 139-40 (1978) (explaining that term
"standing" refers, in Fourth Amendment context, to question of
whether party’s own expectation of privacy has been infringed).

We agree with Appellees that Knight suffered no violation of her
Fourth Amendment rights. "Fourth Amendment rights are personal
rights which, like some other constitutional rights, may not be vicari-
ously asserted."13 Alderman v. United States, 394 U.S. 165, 174
(1969); see United States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991)
(noting that "the Supreme Court [has] explicitly rejected concepts of
‘vicarious’ or ‘target’ standing to assert fourth amendment rights").
We are aware of no decision holding, or even suggesting, that a
mother has a reasonable expectation of privacy in her newborn child’s
bodily fluids. Indeed, such a holding would conflict with the general
rule that an expectation of privacy does not arise from one’s relation-
ship to the person searched. See 5 Wayne R. LaFave, Search and
Seizure § 11.3(i), at 223-24 (3d ed. 1996). Accordingly, we affirm as
to Knight.

b. Darlene Nicholson

Nicholson’s urine was tested for cocaine in October and December
1993. Appellees assert that the Policy had been discontinued by this
time, and thus any such test was not a search because it was not per-
12
This lawsuit does not include a claim by or on behalf of Knight’s
child.
13
This is true notwithstanding that Knight may have suffered damages
as a result of information obtained from the urine drug screen performed
on her child. See Rakas, 439 U.S. at 134 ("A person who is aggrieved
by an illegal search and seizure only through the introduction of damag-
ing evidence secured by a search of a third person’s premises or property
has not had any of his Fourth Amendment rights infringed.").
20 FERGUSON v. CITY OF CHARLESTON
formed by MUSC personnel acting in conjunction with law enforce-
ment authorities. It is not clear to us whether Appellees made this
assertion before the district court; if they did not, the argument is for-
feited. See Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 665
(4th Cir. 1993). If, however, the question was raised by Appellees but
not resolved by the district court, the court must address the issue
before allowing Nicholson to seek damages. Therefore, we remand
for the district court to determine (1) whether Appellees’ claim that
Nicholson was not searched under the Policy was forfeited; (2) if not,
whether Appellees’ assertion is correct; and (3) if not, whether a ratio-
nal jury could find that Nicholson gave her informed consent to the
search. If it reaches the last question, the district court should be
guided in its determination by the reasoning of this opinion. Finally,
if the district court determines that Nicholson does have a Fourth
Amendment claim and that the finding of consent by the jury is not
supported by the evidence presented at trial, a jury should be allowed
to consider Nicholson’s claim for damages.

3.

Also before proceeding to the merits, it will be helpful to note two
issues with which we are not concerned. First, this appeal does not
turn on whether any Appellant was prosecuted or on whether Appel-
lants were arrested only after a second (or subsequent) positive test.
While these questions might be relevant to Appellants’ damages, the
consent question addresses only the search—i.e., the taking and test-
ing of Appellants’ urine for law enforcement purposes—not any
events that followed from the search.

This case is also not about the motives of those involved. There can
be little doubt from the record that the creation and implementation
of the Policy were motivated by the sincere desire of all involved to
help pregnant women and their babies. Our ruling is in no way an
indication that the MUSC personnel responsible for the Policy
engaged in purposefully wrongful conduct. Rather, our ruling con-
cerns only a question of constitutional procedure: whether Appellants
gave their informed consent to be searched, i.e., whether Appellants
gave their informed consent to the taking and testing of their urine for
law enforcement purposes.
 FERGUSON v. CITY OF CHARLESTON 21
B.

It is to that question that we now turn. The Fourth Amendment pro-
hibits unreasonable searches, see U.S. Const. amend. IV, and searches
conducted without a warrant are per se unreasonable unless a valid
exception to the warrant requirement applies, see Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). Voluntary consent to a search
is such an exception. See id. In determining whether consent to search
was freely and voluntarily given, the factfinder must examine the
totality of the circumstances surrounding the consent. See id. at 227.
"[T]wo competing concerns must be accommodated in determining
the meaning of a ‘voluntary’ consent—the legitimate need for such
searches and the equally important requirement of assuring the
absence of coercion." Id.

In considering the totality of the circumstances, the factfinder must
take into account the characteristics of the person from whom consent
is sought, such as age, maturity, education, and experience. See
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en
banc). Of particular relevance here, the factfinder must consider "the
possibly vulnerable subjective state of the person who consents." Sch-
neckloth, 412 U.S. at 229.

In addition to the characteristics of the consenter, the factfinder
must also look to the circumstances of the request for consent. See
Lattimore, 87 F.3d at 650. Indeed, the remand by the Supreme Court
in Ferguson II, requiring us to determine whether Appellants gave
their informed consent to the searches, rests upon the particular fac-
tual circumstances of this case. Simply put, the circumstances of the
encounter between Appellants and those conducting the searches were
unusual. In the vast majority of cases, consent to search is requested
by one known to the suspect to be a law enforcement officer. Here,
in contrast, any request for consent was made by medical personnel
acting (unknown to Appellants) as agents of law enforcement.

In remanding for further consideration of the consent issue, the
Supreme Court set specific parameters tailored to these unique cir-
cumstances, as indicated by its decision to use the term "informed
consent," language that does not appear in the Court’s other consent-
to-search cases. Under these parameters, Appellants’ knowledge of
22 FERGUSON v. CITY OF CHARLESTON
law enforcement involvement in the Policy is critical to the existence
of informed consent. The Court admonished that "when [medical per-
sonnel] undertake to obtain . . . 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." Id. at 85 (citing Miranda v. Arizona, 384 U.S.
436 (1966), by comparison); see id. at 78 (noting that in special needs
cases involving urine drug screens, "there was no misunderstanding
about the purpose of the test"); id. at 78 n.13 (stating that nothing in
mandatory reporting laws "would . . . lead a patient to anticipate that
hospital staff would intentionally set out to obtain incriminating evi-
dence . . . for law enforcement purposes"). Thus, the Court made
abundantly clear in Ferguson II that any finding of informed consent
must rest on a determination that Appellants had knowledge, from
some source, that no medical purpose supported the testing of their
urine for cocaine; further, Appellants must have understood that the
tests were being conducted for the law enforcement purpose of
obtaining incriminating evidence. Phrased somewhat differently, criti-
cal to the question of whether Appellants voluntarily consented to the
searches is the antecedent question of whether they understood that
the request was not being made by medical personnel for medical pur-
poses, but rather by agents of law enforcement for purposes of crime
detection.14 See Gouled v. United States, 255 U.S. 298, 305-06 (1921)
(holding that suspect did not consent to search of his office by grant-
ing admission to friend who claimed to be making social call but in
fact, unbeknownst to suspect, was a government agent).
14
The Ferguson II opinion went so far as to suggest that, in addition
to the heightened burden of proving informed consent, Appellees should
also be required to demonstrate that Appellants were aware of their con-
stitutional right to refuse to consent. See id. at 85. This language is in
some tension with Schneckloth, in which the Court held that "[w]hile
knowledge of the right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge as the sine
qua non of an effective consent." Schneckloth, 412 U.S. at 227. We need
not decide whether the Court truly intended to impose this additional
burden, because Appellees cannot meet the burden of demonstrating
Appellants’ informed consent to the searches even under the more lenient
standard discussed above.
 FERGUSON v. CITY OF CHARLESTON 23
Appellees assert that the tests were, in fact, done for medical pur-
poses. Insofar as the intent of the Policy was to provide medical assis-
tance to the women and their unborn and newly born children, this
may be an accurate statement. In the context of Appellants’ Fourth
Amendment claim, however, to say that the searches were motivated
by medical purposes is to say that the collection and testing of the
urine was done independently of the Policy. We emphasize that there
was no evidence introduced into this record to support the conclusion
that any of the searches here would have been conducted in the
absence of the Policy; for that reason, we are compelled to proceed
on the basis that the primary purpose of the urine drug screens was
crime detection, not medical treatment. Cf. Ferguson II, 532 U.S. at
78 n.13 (noting difference between reporting of information "acquired
in the course of routine treatment" and "intentionally set[ting] out to
obtain incriminating evidence . . . for law enforcement purposes").

We note also that the parties agree that Appellees bore the burden
of proving, by a preponderance of the evidence, that Appellants had
consented to each of the searches.15 There is some dispute among the
courts of appeals regarding which party bears the burden of proving
consent, or the absence thereof, in a civil suit alleging a violation of
the Fourth Amendment. See Trulock v. Freeh, 275 F.3d 391, 401 n.4
(4th Cir. 2001) (citing cases). Because this case was litigated by all
parties on the premise that Appellees had voluntarily assumed the
burden of proof, we will assume for purposes of this decision that the
burden of proof rested on Appellees.

With these principles in mind, we proceed to an examination of the
15
While the district court instructed the jury to consider each Appellant
individually, it did not charge the jury that it must consider each search
individually to determine whether that Appellant gave informed consent
to that particular search. Such an instruction should have been given,
since each taking and testing of a patient’s urine under the Policy consti-
tuted a separate search for purposes of the Fourth Amendment. We
appreciate the difficulty faced by the district court in issuing clear, con-
cise instructions in a multi-party, multi-issue lawsuit. Nevertheless, on
remand the district court should present the damages issue to the jury in
a way that allows the jurors to assess damages for each Fourth Amend-
ment violation suffered by each Appellant.
24 FERGUSON v. CITY OF CHARLESTON
evidence pertaining to each Appellant to determine whether a rational
jury could have found that that Appellant consented to the taking and
testing of her urine by agents of law enforcement for the purpose of
obtaining evidence of criminal activity. Initially, we consider whether
either the ambulatory consent form or the general consent form was
adequate to establish Appellants’ informed consent.16 As noted above,
the relevant language of the forms provided that the patient consented
"to . . . testing for drugs if deemed advisable by or necessary in the
professional judgement of the physician or surgeon," J.A. 1443
(ambulatory consent form), or that the patient consented "to the test-
ing of drugs if deemed advisable by my physician," id. at 1442 (gen-
eral consent form). Neither this language, nor anything else in either
form, advised or even suggested to Appellants that their urine might
be searched for evidence of criminal activity for law enforcement pur-
poses. Rather, to the extent the forms alerted Appellants to the possi-
bility that their urine would be tested for drugs, Appellants were led
to believe that such tests would be conducted only if an Appellant’s
treating physician deemed such a test advisable in the particular cir-
cumstances of that Appellant’s medical care. As discussed above,
there is no evidence that any of the urine drug screens were conducted
as a result of a doctor’s independent medical judgment; to the con-
trary, it appears that all of the tests were performed pursuant to the
strictures of the Policy. We therefore conclude that, as a matter of
law, neither the ambulatory consent form nor the general consent
form could serve as sufficient evidence of Appellants’ informed con-
sent to the searches.17 Cf. Stoner v. California, 376 U.S. 483, 489-90
16
Appellees assert that once an Appellant signed either the ambulatory
or the general consent form, informed consent was established for all
future searches of that Appellant. Since we conclude that neither form
was adequate to establish informed consent for Fourth Amendment pur-
poses, we do not address this argument. We note, however, that Appel-
lees are essentially claiming that consent to one search necessarily
establishes consent to all future searches. This is, to say the least, a dubi-
ous assertion.
17
Even if informed consent could be inferred from the signing of the
general consent form, the legitimacy of such an inference would be
doubtful as to some of the Appellants. Sandra Powell, for example, never
signed a general consent form when she was admitted to the MUSC hos-
pital for the delivery of her child. Rather, because Powell was in active
labor, the form was signed by her mother. Appellees maintain that Pow-
ell’s mother had authority to consent to a search of her daughter’s body,
but we are aware of no evidence in the record supporting such a conclu-
sion.
 FERGUSON v. CITY OF CHARLESTON 25
(1964) (holding that express or implied consent of hotel guest for
entry by maids, janitors, or repairmen did not extend to entry by
police officers to search for evidence of crime).

Because neither the general nor the ambulatory consent form estab-
lishes express consent to a search for evidence of criminal activity for
law enforcement purposes, we must consider whether Appellants
gave implied consent, i.e., whether Appellants had knowledge of the
Policy from one or more sources and implicitly consented to the
searches by thereafter going to MUSC for treatment. Courts generally
are reluctant to infer consent from mere notice followed by voluntary
conduct. See McGann v. Northeast Ill. Reg’l Commuter R.R. Corp.,
8 F.3d 1174, 1180-81 (7th Cir. 1993) (stating that notice and volun-
tary conduct are "necessary but not sufficient conditions" for implied
consent). For the reasons set forth below, we conclude that the evi-
dence presented at trial was insufficient for a rational jury to find that
Appellants implicitly consented to the searches. First, as to many of
the Appellants, there simply is not enough evidence to justify a find-
ing of knowledge of the critical portions of the Policy—namely, that
the Policy involved searches of patients’ urine for evidence of crimi-
nal activity for law enforcement purposes. Second, even if all of the
Appellants could be found to have had such knowledge, no rational
jury could conclude that Appellants voluntarily submitted, for pur-
poses of the Fourth Amendment, to treatment at MUSC.

1. Knowledge of the Policy

a. Lori Griffin

Griffin was searched under the Policy during a hospital admission
for preterm labor in early October 1989.18 When Griffin was subjected
18
Griffin’s urine also tested positive for cocaine in June, during a pre-
natal appointment at the MUSC clinic. Since the Policy had not been
developed at that time, that test does not fall within the ambit of this law-
suit, which challenges only searches conducted pursuant to the Policy.
Appellees argue that the Policy did not exist until it was adopted by
the MUSC Executive Committee in early November 1989, and thus the
search of Griffin’s urine—along with the searches of Sandra Powell’s
26 FERGUSON v. CITY OF CHARLESTON
to the Policy, neither the Solicitor’s letter nor the "To Our Patients"
letter was in use, and the PSA had not yet begun to air. And, no testi-
mony was elicited from Griffin regarding any knowledge she had of
the Policy. There was therefore no evidence from which a rational
jury could infer that Griffin had knowledge of the terms of the Policy.

b. Sandra Powell

Powell’s urine tested positive for cocaine when she delivered her
son in October 1989.19 As with Griffin, Powell was not provided with
any documents related to the Policy and was searched under the Pol-
icy before the PSA began to air. Furthermore, there is no evidence
that Powell was aware of the Policy prior to the search of her urine.
We accordingly conclude that the evidence was insufficient for a
rational jury to find that Powell had knowledge of the Policy.

c. Laverne Singleton

Singleton first tested positive for cocaine in connection with the
birth of a child in November 1989. When confronted with the positive
test, Singleton informed Nurse Brown that she had given permission
for the urine screen "because she thought she was clean." J.A. 1862
(internal quotation marks omitted). This statement clearly indicates a
before-the-fact awareness by Singleton that her urine would be tested
for cocaine. However, the question for the jury was not simply
whether Singleton knew that her urine would be tested; rather, the
question was whether Singleton knew that her urine would be
searched for evidence of criminal conduct for law enforcement pur-

and Laverne Singleton’s urine—are not within the scope of this lawsuit.
The evidence at trial, however, established that the Policy, including the
involvement of law enforcement (as evidenced by the arrests of Griffin
and Powell for positive urine screens in early October 1989), was opera-
tional even before its adoption by the Executive Committee.
19
Powell’s urine also tested positive for cocaine in May during a prena-
tal appointment at the MUSC clinic. This test does not fall within the
ambit of this lawsuit.
Powell’s son also tested positive for cocaine in October 1989. This
lawsuit does not include a claim by or on behalf of Powell’s son.
 FERGUSON v. CITY OF CHARLESTON 27
poses. Appellees note that Singleton "was arrested after another
Appellant’s well-publicized arrest." Supplemental Br. of Appellees at
25. Even assuming that Singleton’s knowledge of this arrest would be
sufficient for a rational jury to infer her knowledge of the critical pro-
visions of the Policy, there is no evidence that Singleton was aware
of the arrest. The mere fact that an arrest was "well-publicized" pro-
vides no indication that a particular individual was aware of the pub-
licity. We therefore conclude that there is no evidence from which a
rational jury could infer Singleton’s knowledge of the critical portions
of the Policy.

Singleton’s urine was searched again in November 1990, after she
delivered a baby in an ambulance en route to MUSC. Although it is
a close question, we conclude that a rational jury could infer that Sin-
gleton had knowledge of the critical aspects of the Policy when she
gave this sample of her urine. A year earlier, Singleton had been
arrested by law enforcement officers after her urine tested positive for
cocaine. The connection between the positive urine drug screen and
the arrest could not have escaped Singleton’s notice, and a rational
jury could determine that the connection between the urine drug
screen and the arrest was sufficient to apprise Singleton that the
November 1990 urine drug screen was going to be performed for law
enforcement purposes.

d. Pamela Pear

Pear’s urine was searched under the Policy during a prenatal
appointment at the MUSC clinic in July 1990 and during an admis-
sion to the MUSC hospital for preterm labor in August 1990. At trial,
Pear testified that she was aware, at the time of these searches, that
women were being arrested based on positive urine drug screens. Spe-
cifically, Pear agreed that "before going to MUSC for . . . prenatal
care [she was] aware that MUSC was testing pregnant women for ille-
gal drugs" and that "there was a policy regarding arresting pregnant
women [who] used illegal drugs during . . . pregnancy." J.A. 444.
This evidence is sufficient to support a finding of knowledge by a
rational jury.

e. Paula Hale

Hale delivered a baby at MUSC in December 1990, having
received no prenatal care during her pregnancy. Hale’s urine was
28 FERGUSON v. CITY OF CHARLESTON
searched and tested positive for cocaine. There is no evidence in the
record from which a rational jury could infer that Hale had knowledge
of the Policy.

f. Crystal Ferguson

Ferguson requested a transfer to the MUSC clinic after viewing the
PSA. Accordingly, we must consider whether Ferguson’s viewing of
the PSA is evidence from which a rational jury could infer knowledge
of the critical aspects of the Policy. We conclude that it is not. The
PSA simply informed viewers that cocaine was harmful to fetuses and
that MUSC would provide help to pregnant women who used
cocaine. Nothing in the PSA provided any notice that the "help" pro-
vided by MUSC involved searches of patients’ urine for evidence of
criminal activity for law enforcement purposes.

According to Nurse Brown’s trial testimony, see supra note 6, Fer-
guson would have received the "To Our Patients" letter before her
urine was searched. We determine, however, that no rational jury
could infer that Ferguson gained knowledge of the critical aspects of
the Policy from reading this document. As discussed previously, in
order to be considered informed of the critical aspects of the Policy,
Appellants had to understand that MUSC personnel were working
with and for law enforcement in testing Appellants’ urine for cocaine.
Not only does the "To Our Patients" letter not impart such informa-
tion, its text—which informed readers that law enforcement authori-
ties would become involved only after continued drug-use problems
—actively negates any such reading. In any event, there is no evi-
dence that Ferguson read the "To Our Patients" letter or, having read
it, that she came away with the necessary understanding of the Policy.
Any such finding by a jury would be speculative.

After Ferguson’s urine tested positive for cocaine on June 19,
1991, she viewed the video on substance abuse and signed the Solici-
tor’s letter. In August, when Ferguson delivered her child, she was
again searched pursuant to the Policy, raising the question of whether
the video or the Solicitor’s letter imparted to Ferguson knowledge of
the critical aspects of the Policy. Clearly, no such knowledge was pro-
vided by the video, which was simply a general production regarding
the dangers of prenatal drug use and which included no discussion of
 FERGUSON v. CITY OF CHARLESTON 29
the Policy. And, similar to the "To Our Patients" letter, the Solicitor’s
letter provided no information regarding the coordinated efforts of
MUSC and law enforcement personnel. Certainly, a reader could infer
from the Solicitor’s letter that positive urine drug screens would be
reported to law enforcement authorities. Critically, however, the
Solicitor’s letter does not inform the reader that the urine drug screen
which prompted the letter had been a search conducted in conjunction
with law enforcement personnel or, even more importantly, that any
subsequent urine drug screen would be done for law enforcement pur-
poses. Rather, the only reference to the involvement of law enforce-
ment personnel concerns the consequences of a patient’s failure to
attend substance abuse counseling or prenatal care appointments.
Accordingly, neither of these items provided evidence from which a
rational jury could infer Ferguson’s knowledge of the Policy.

g. Theresa Joseph

Like Ferguson, Joseph also saw the PSA during her pregnancy. For
the same reasons that apply to Ferguson, we conclude that Joseph’s
viewing of the PSA did not provide her with knowledge of the critical
aspects of the Policy. The same is true of Joseph’s later review of the
Solicitor’s letter. And, there is no other evidence from which a ratio-
nal jury could infer that Joseph had knowledge of the critical aspects
of the Policy.20

h. Patricia Williams

Like Ferguson, Williams requested prenatal care at the MUSC
clinic after learning of the Policy. According to her testimony at trial,
Williams’ understanding of the Policy did not include any awareness
that MUSC was searching patients’ urine for evidence of criminal
activity for law enforcement purposes. And, there is no other evidence
from which a rational jury could infer that Williams had knowledge
of the critical aspects of the Policy.
20
Joseph did not receive prenatal care from the MUSC clinic, and so
would not have seen the "To Our Patients" letter. In any event, as dis-
cussed above, that document did not provide information regarding the
critical aspects of the Policy.
30 FERGUSON v. CITY OF CHARLESTON
i. Summary

For the reasons set forth above, we conclude that a rational jury
could have found the requisite knowledge of the Policy only as to Sin-
gleton and Pear. As to the other Appellants, the evidence does not
support a finding of knowledge.

2. Voluntary Conduct

In addition to knowledge, Appellees also bore the burden of prov-
ing voluntary conduct—as earlier stated, a burden they assumed
throughout trial and on appeal. The conduct of Singleton and Pear
particularly, and the remaining Appellants generally, in presenting
themselves to MUSC for treatment cannot be considered "voluntary"
in a constitutional sense.

As noted previously, one of the critical factors in assessing volun-
tariness under the totality of the circumstances is "the possibly vulner-
able subjective state of the person who consents." Schneckloth, 412
U.S. at 229. Singleton was searched for the second time immediately
after she had given birth in an ambulance. The second search of Pear
was performed when she was in preterm labor. Beyond these specific
searches, we note that of the 13 searches discussed in the previous
section, six (including the two searches of Singleton) were performed
on patients who were in active labor or who had given birth immedi-
ately prior to the search (in two cases, by emergency cesarian sec-
tion). Another three searches (including the second search of Pear)
were performed on patients experiencing preterm labor, and two
searches—the June 1991 searches of Theresa Joseph—were per-
formed on a patient who was seriously ill and in excruciating pain.

Medical distress may create a vulnerable subjective state that is
inimical to voluntary consent in two ways. First, a patient who is in
dire need of medical treatment will feel less free to question or refuse
certain portions of that treatment, even if she is physically capable of
doing so. Second, the physical strain of labor, birth, or serious illness
will have a deleterious effect on the patient’s mental process, limiting
her ability to rationally consider whatever choices she has. While it
is true that physical distress does not invariably vitiate consent, see
United States v. Mason, 966 F.2d 1488, 1494 (D.C. Cir. 1992),
 FERGUSON v. CITY OF CHARLESTON 31
Appellees assumed and thus bore the burden of proving that despite
their physical condition, Appellants possessed sufficient mental facul-
ties and awareness to allow them to give informed consent. No evi-
dence bearing on this issue was presented by Appellees.

More generally, we note that Appellants were all insured by Med-
icaid and that MUSC was the only medical system in the Charleston
area that accepted Medicaid as a form of payment. Furthermore, the
MUSC hospital and clinic were responsible for treating high-risk
pregnancies, into which category most or all of Appellants fell. Thus,
if Appellants wished to receive prenatal care and assistance at deliv-
ery, the record conclusively demonstrates that they had no choice but
to seek such services at MUSC. And, Appellees presented no evi-
dence that Appellants would have been treated if they had refused to
provide a urine sample. While we cannot imagine that such treatment
would have been denied, especially for those patients in medical dis-
tress, this is a matter on which Appellees voluntarily assumed the bur-
den of proof. Appellees’ failure to present evidence on this point
requires us to assume that Appellants did not have the option of refus-
ing to be searched and still obtaining medical treatment. The choice
to be searched or forego necessary medical treatment "is the antithesis
of free choice" to consent or refuse.21 Garrity v. New Jersey, 385 U.S.
4997 (1967); cf. id. at 496-97 (holding that choice between forfeiture
of Fifth Amendment right to remain silent and loss of employment
rendered confession involuntary).

This voluntariness inquiry is particularly important as to Singleton
21
It is no answer to suggest that Appellants could simply have foregone
prenatal care, much less assistance at delivery, in order to avoid applica-
tion of the Policy. This much is established by the terms of the Policy
itself and the emphasis MUSC personnel placed on prenatal care. For
example, under the terms of the Policy a pregnant woman whose urine
had once tested positive for cocaine could be arrested for failing to attend
prenatal care appointments. Furthermore, it is not inconceivable that a
woman who fails to obtain prenatal care could be subject to prosecution
for child neglect. Cf. David Abel, Pregnant Sect Member in State Cus-
tody, Boston Globe, Sept. 1, 2000, at A1 (describing case of pregnant
woman incarcerated in part because of refusal to submit to medical
examination).
32 FERGUSON v. CITY OF CHARLESTON
and Pear, the only two Appellants as to whom a rational jury could
find knowledge of the critical aspects of the Policy. Singleton was in
significant physical distress at the time of the November 1990 search
(at which time she had knowledge of the critical aspects of the pol-
icy), which was performed very shortly after she had given birth. The
second search of Pear occurred when she was in preterm labor. There
is no evidence in the record to indicate that Singleton and Pear were
in a condition to voluntarily consent to a search. And, even though
Pear was not in any physical distress the first time her urine was
searched, Appellees failed to present evidence that would have
allowed a jury to find that she could have received prenatal care with-
out submitting to a search of her urine, or that she could have fore-
gone such care altogether. We therefore conclude that even though
Singleton (at the time of the November 1990 search) and Pear pos-
sessed the requisite knowledge of the policy, a rational jury could not
find voluntariness.

III.

It may be the case, as Justice Scalia suggested, that the outcome of
this appeal is evidence "that no good deed goes unpunished." Fergu-
son II, 532 U.S. at 104 (Scalia, J., dissenting). It is certainly disheart-
ening that, as a result of our holding today, damages may be imposed
on those who acted with the best interest of Appellants and their chil-
dren at heart. But, however noble Appellees’ intentions, the regretta-
ble and inescapable conclusion remains that Appellees did not bear
their burden of proving that they obtained constitutionally valid con-
sent.22 We therefore must reverse the denial of the motion for judg-
ment as a matter of law as to all Appellants except Ellen Knight, and
22
We note that our review of this case has been hampered in several
respects by sparse evidence in the record. For example, Appellants did
not present evidence regarding what they believed would happen if they
refused to provide samples of their urine; Appellees, for their part, failed
to present evidence that Appellants could pick and choose among treat-
ment options. We are mindful of the complexity of this litigation, and we
do not suggest that counsel are to be faulted for failing to have perfect
foresight. We simply observe that complex cases are difficult not only
for the parties and the district court, but also for appellate courts, which
must rely on the record created by the parties.
 FERGUSON v. CITY OF CHARLESTON 33
remand for further proceedings. Because Knight suffered no constitu-
tional violation, we affirm as to her. On remand, the district court
should conduct proceedings regarding Darlene Nicholson’s standing
and Appellants’ damages.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

NIEMEYER, Circuit Judge, concurring in the judgment in part and
dissenting in part:

Under the limited review that we are now directed to conduct by
the remand order of the Supreme Court and that is required by the
deferential standard applicable to that review — taking the facts in a
light most favorable to the Medical University of South Carolina —
I would affirm the jury’s verdict. Even if I were to apply the new
legal standard for consent articulated in dictum by the Supreme Court
in its remand order, I would affirm with respect to nine of the appel-
lants, either because the facts support a finding that the search under
Policy M-7 was consented to with full knowledge or because the
appellant’s claim did not implicate the Policy. Under this new stan-
dard, I would reverse the judgment only as to Laverne Singleton
because of an insufficiency of evidence to demonstrate her knowledge
of the consequences of her voluntarily supplying a urine sample. My
reasons follow.

I

The ten women who are plaintiffs in this action contend that Policy
M-7 of the Medical University of South Carolina ("MUSC") — pro-
viding that urine samples, given by certain pregnant women, be
screened for the presence of illicit drugs and that the results be for-
warded to law-enforcement authorities for prosecution — violated
their right against unreasonable searches, as protected by the Fourth
Amendment. The district court rejected MUSC’s claim that the pur-
ported searches were justified by the "special needs" exception to the
Fourth Amendment, but, following a trial, a jury found that each of
the ten plaintiffs consented to the searches, and therefore the Fourth
Amendment was not implicated.
34 FERGUSON v. CITY OF CHARLESTON
On appeal, we affirmed, but not on the issue of consent. We con-
cluded that the searches themselves were reasonable under the "spe-
cial needs" doctrine, which justifies certain searches designed to serve
non-law-enforcement ends — in this case the medical interests of the
mothers and the babies — even though law-enforcement means were
employed. Ferguson v. City of Charleston, 186 F.3d 469, 477 n.7, 479
(4th Cir. 1999); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646, 652-53 (1995); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444,
451-55 (1990); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). We
grounded our holding on the conclusion that the urine drug screens
conducted under the Policy were, in fact, for medical purposes wholly
independent of the incidental law-enforcement efforts and that the
law-enforcement efforts were intended to reinforce the medical pur-
poses. Ferguson, 186 F.3d at 477.

On review by certiorari, the Supreme Court reversed our judgment
and remanded the case for further proceedings. Ferguson v. City of
Charleston, 532 U.S. 67, 86 (2001). The only issue decided by the
Supreme Court was whether the MUSC policy was a search justified
by the "special needs" doctrine. On this issue, the Court concluded:

While the ultimate goal of the program may well have been
to get the women in question into substance abuse treatment
and off of drugs, the immediate objective of the searches
was to generate evidence for law enforcement purposes in
order to reach that goal. The threat of law enforcement 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. . . . Given the primary purpose of the Charleston
program, which was to use the threat of arrest and prosecu-
tion 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."

Id. at 82-84. Distinguishing its earlier cases in which it justified drug
testing, the Court said that "[i]n each of those earlier cases, the ‘spe-
cial need’ that was advanced as a justification for the absence of a
warrant or individualized suspicion was one divorced from the State’s
 FERGUSON v. CITY OF CHARLESTON 35
general interest in law enforcement." Id. at 79. The Court then reiter-
ated its basis for concluding differently in this case, stating that "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." Id. at 80.

The Court explicitly did not review the question of whether the
patients gave their consent to the searches, as the jury had found.
Rather, on this point, the Court said, "[W]e 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." Id. at 76; see also id. at 77. After reversing on the one issue
that it did decide, the Court remanded the case for our review on the
previously unreviewed question of whether the jury had evidence to
support its finding of consent. As dictum, the Court explained that
hospital employees have "a special obligation to make sure that the
patients are fully informed about their constitutional rights, as stan-
dards of knowing waiver require." Id. at 85. In making that statement,
however, the Court did not review its jurisprudence of consent, nor
did it appear to be adopting a new standard for giving consent and
thereby overruling the pre-existing law. Under the pre-existing law,
consent to waive a Fourth Amendment right did not depend on a
knowing and intelligent decision or on full or accurate information
but rather whether the defendant "voluntarily" provided the informa-
tion, regardless of whether the act was knowing or intelligent or
whether the inducement was complete, true, or accurate. See, e.g.,
Schneckloth v. Bustamonte, 412 U.S. 218, 235-46 (1973); Hoffa v.
United States, 385 U.S. 293, 300-02 (1966). Were it otherwise, the
procedures of law enforcement would have been dramatically
changed, and doubt would be cast upon virtually every consent that
is routinely given today without full knowledge of the consequences.
See Schneckloth, 412 U.S. at 243 (noting that it would be "next to
impossible" to apply such a standard).

If mere "voluntariness" remains the correct standard for waiving a
governmental search, then it is beyond dispute that the jury had, in
each instance in this case, sufficient evidence to support its finding of
voluntariness. There is no evidence that any patient was compelled to
provide a urine sample or that any patient objected to providing one
when requested to do so by medical authorities. And the majority
36 FERGUSON v. CITY OF CHARLESTON
agrees with this observation. See ante at 10 n.8. Indeed, even before
adoption of Policy M-7, it was established medical protocol to obtain
urine samples for medical purposes when the patient presented signs
that she may have been on drugs during her pregnancy. As testified
to by Nurse Shirley Brown, the Obstetrics Case Manager at MUSC,
MUSC had been following such a medical protocol before adoption
of Policy M-7, and the adoption of Policy M-7 in October and
November of 1989 was only intended to put teeth into the pre-existing
protocol by systematically subjecting the patient to the possibility of
prosecution for the abuse of drugs revealed by the drug screen tests.

But even if the standard suggested by the Supreme Court by dictum
turns out unwittingly to be a new standard, the evidence, in my judg-
ment, supports the jury’s finding of consent in favor of MUSC in at
least five of the instances presented. Under this "new" standard, the
inquiry stated by the majority is the appropriate one: (1) did the
patient have knowledge that the urine screens could be used as a basis
for arresting the patient and (2) did the patient, having that knowl-
edge, provide the urine samples voluntarily. Because there is no evi-
dence that the urine samples were coerced, the only factual question
is whether the patients provided those samples with knowledge that
the test results might be used for prosecutorial purposes.

II

In reviewing the jury’s findings in this case, it is important first to
understand the law that the jury was applying. The district court, after
telling the jury that there were no search warrants in this case,
instructed the jury that any finding of a constitutional search
depended on the patient’s consent. The court said:

There not being a warrant issued, [the searches] 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.

***
 FERGUSON v. CITY OF CHARLESTON 37
[I]t is conceded by the parties that if the searches were con-
sented to then they are constitutional. And again you may
reach a different conclusion as to consent from plaintiff to
plaintiff. That doesn’t have to be so, that’s dictated by the
facts. But it doesn’t mean that if there is consent in one case
that there is necessarily consent in the other or vice versa.
Again, you have to look at the facts that relate to each plain-
tiff and reach a decision on the question of consent.

After telling the jury that the State carried the burden of proving con-
sent, the court then proceeded to explain how the jury was to con-
clude whether each defendant consented:

The matter of consent more often than not is discussed in
terms of voluntariness and willingness to give the consent.
But before there can be any voluntariness, before there can
be any consent, there must be knowledge. The person giving
the consent must have knowledge of what she is doing. It’s
basic that before you can consent to something, you have
got to know what it is. You have to have enough informa-
tion to know what is being done before you can consent to
it. And the scope of the consent must be broad enough to
include the search in question. Consent for one purpose may
be broad enough to cover one actor, but may not be broad
enough to cover another actor.

The written consent in this case may be sufficient to
cover the taking of a urine sample and the testing thereof by
Medical University of South Carolina officials alone, but it
is not sufficient to cover the sharing of that information with
law enforcement officials. That written consent is not suffi-
cient consent to warrant a search where the search informa-
tion is furnished to law enforcement officers. There must be
something in addition to that written consent before you can
say that these were consent searches.

***

And therefore to show that there is a valid consent in this
case there must be something else that convinces you that
38 FERGUSON v. CITY OF CHARLESTON
the plaintiffs consented not only to the taking of this urine
for the use by the medical people, but also the sharing of it
with law enforcement people for the possibility of prosecu-
tion for drug offenses.

(Emphasis added).

Thus the district court instructed the jury to decide both whether
the plaintiff-patients had knowledge that their urine screens could be
used to prosecute them and whether their giving urine samples, in
light of this knowledge, was voluntary. And applying these instruc-
tions to the facts, the jury found that each of the appellants knowingly
and voluntarily consented to the searches.

III

Recognizing that the jury was not misinstructed, even under the
"new" standard, we need only concern ourselves with the question of
whether there was evidence from which the jury could reasonably
have reached the conclusion that consent was in fact given. Benesh
v. Amphenol Corp. (In re Wildewood Litig.), 52 F.3d 499, 502 (4th
Cir. 1995). In applying this standard of review, we take the evidence
in a light most favorable to MUSC. Id.

The record shows that before Policy M-7 was adopted in mid-
October or November 1989, MUSC utilized a medical protocol solely
for medical reasons to test urine samples of pregnant women who
presented themselves with certain medical conditions. Nurse Brown
testified that, under this pre-Policy medical protocol, "if people met
certain criteria that were listed that were published by the faculty, you
know, to go out into the clinics that the following are indicators and
would need to be screened, you know, for medical evaluation, then
they would have [been screened]." She explained that the urine screen
for drugs would be prescribed under the protocol if the patient had
"no prenatal care, late prenatal care, abruptio placentae, intrauterine
fetal death, preterm labor, and there was one other one that was sup-
posed to be screened prenatally or at delivery." This protocol was
adhered to by all physicians and was communicated to medical resi-
dents by memorandum. Thus, when a patient was abrupting, "the pla-
centa was separating, [and] it was putting her life and [the] baby’s life
 FERGUSON v. CITY OF CHARLESTON 39
in jeopardy, . . . the physician order[ed] a [urine drug] test as part of
many tests that they order." Under the protocol, if the drug screen
proved positive for drug abuse, the woman was counseled about the
harmful effects of drugs on her and her child and was referred to sub-
stance abuse treatment. No one has argued that this pre-Policy medi-
cal protocol involved an unconstitutional search.

Policy M-7, the subject of this case, was agreed upon by MUSC,
the police, and the solicitor (chief prosecuting attorney) on or about
October 12, 1989, when the police department sent Nurse Brown a
proposed form of the Policy to which the various entities had agreed
orally. This communication was followed by a memorandum dated
October 17 actually announcing the "policies concerning drug abus-
ing pregnant women." And, thereafter, Policy M-7 was formally
adopted as part of the MUSC medical center policy manual on
November 27, 1989. As announced and informally adopted, Policy
M-7 included a form solicitor’s letter dated October 18, 1989,
addressed to patients and candidly warning them of their potential
arrest: "Please understand that by using drugs during pregnancy, you
are risking death or at least severe long-term harmful effects to your
baby. If you fail to obtain Substance Abuse and Pre-Natal Care, you
will be arrested by Charleston City Police and prosecuted by the
Office of Solicitor." The date of the solicitor’s letter, which was to be
employed as part of the Policy, confirms when Policy M-7 was infor-
mally implemented, as does the testimony of Nurse Brown. Summa-
rizing her testimony, the district judge stated, "She has testified, as I
understand it, to two things. She said late October of ’89 or the first
part of November of ’89 the policy was first adopted," and the plain-
tiffs’ attorney agreed with that summary. (J.A. 587.) In short, on or
about October 17 or 18, 1989, Policy M-7 was first adopted, albeit
informally, and beginning then, it authorized drug screening, the
results of which could be used to support arrests of pregnant women.

A modification of Policy M-7, providing a second chance to
patients testing positive for drugs if they successfully completed treat-
ment, was adopted in January 1990. And during this period, a public
service announcement was developed and broadcast publicly and pri-
vately to patients. That announcement stated:

When you’re pregnant, just one line of cocaine, a single hit
of crack, rushes to your baby’s body and brain. Within min-
40 FERGUSON v. CITY OF CHARLESTON
utes your body can be jolted into premature labor risking a
still developing child to stroke, even death. And not only
will you live with the guilt, you could be arrested.

But this is a tragedy you can prevent. If you have a problem
with drugs talk to your doctor or call MUSC at 792-6437.
Trained counselors will guide you through drug rehabilita-
tion and advise you about good prenatal care. And if you
stay with the program, you will not be arrested or prose-
cuted.

Wake up from the nightmare. Think about your baby first.

It is against these facts about when Policy M-7 was adopted and
implemented that we must consider the personal circumstances of the
appellants in this case.

IV

The record evidence shows that Lori Griffin and Sandra Powell
each gave urine samples to MUSC under MUSC’s medical treatment
protocol as it existed before adoption of Policy M-7 and thus the
screens were not searches implicating the Fourth Amendment. Griffin
signed an ambulatory consent form on June 28, 1989, then gave a
urine sample, and tested positive for cocaine. On October 7, 1989,
again before Policy M-7 was adopted, Griffin went to MUSC for pre-
term labor. During this admission, she gave another urine sample that
tested positive for cocaine. As she was released from the hospital, she
was arrested on the basis of the positive showing and remained in cus-
tody until she delivered her baby on October 26. In January 1990,
Griffin was indicted for possession of cocaine and distribution of
cocaine to a minor on October 6 and 7, 1989, as revealed by medical
testing conducted before the implementation of Policy M-7.

Powell similarly signed an ambulatory consent form on May 24,
1989, when she came to MUSC for prenatal care before Policy M-7
came into effect. On October 13, 1989, she was taken to MUSC in
an ambulance when she went into labor, and at the time of that admis-
sion, a urine sample was provided. It tested positive for cocaine, and
 FERGUSON v. CITY OF CHARLESTON 41
the next day, Powell was arrested on the basis of that medical record
for her cocaine abuse. Again, all of this occurred before adoption of
Policy M-7.

With respect to each of these patients, I submit that, and certainly
the jury could have found that, the urine tests were conducted pursu-
ant to the medical protocol in existence before Policy M-7 and that
the urine samples were voluntarily provided for medical reasons. No
appellant has contended that the medical protocol as it existed before
the adoption of Policy M-7 in mid-October and early November 1989
was conducted for prosecutorial purposes and thereby violated the
Fourth Amendment.

With respect to the urine samples provided by Pamela Pear, Paula
Hale, Crystal Ferguson, Theresa Joseph, and Patricia Williams, Policy
M-7 was fully in effect. But in each case, when a sample was taken
and tested, the prosecutorial potential was explained to the patient.
Indeed, the majority opinion agrees that Pear was aware that MUSC
was testing pregnant women for illegal drugs and that she knew that
MUSC had a policy regarding arresting women who used illegal
drugs during pregnancy. Hale similarly had full knowledge of the Pol-
icy. She came to MUSC on December 13, 1990, and delivered a baby.
Urine samples provided at her delivery tested positive for cocaine.
She signed a copy of the solicitor’s letter specifically warning of
arrest and has admitted to knowing at the time that drug screens at
MUSC were being used to support arrests of pregnant women. And
Ferguson likewise had full knowledge. She came to MUSC because
she was using drugs and needed help. She signed the consent form,
viewed the public service announcement warning of dangers of using
drugs and warning that she could be arrested, and signed the solici-
tor’s letter, which specifically warned patients that they could be
arrested. Again, Joseph also saw the public service announcement
and, on presenting herself to MUSC, signed a consent form. In addi-
tion, she signed the solicitor’s letter specifically warning her of the
potential for arrest. Finally, Williams specifically asked to be trans-
ferred from North Charleston Health Department to MUSC for prena-
tal care because of her drug problem. She had heard about the MUSC
policy and admitted knowing that MUSC was testing women for the
presence of drugs. When she presented herself at MUSC, she signed
the consent form and tested positive. She was then shown the video
42 FERGUSON v. CITY OF CHARLESTON
on substance abuse, given a copy of the solicitor’s letter and sched-
uled for an appointment at the Charleston County Substance Abuse
Center. With this information, Williams gave urine samples on two
occasions thereafter, as well as an additional time at the delivery of
her baby. On each of these three occasions, she tested positive for
drug abuse. Thus, with respect to each of these five appellants, the
record amply supports the jury’s conclusion that the patients were
fully informed of prosecutorial purposes when they provided their
urine samples for drug testing.

The facts relating to Laverne Singleton are distinguishable from
these five and do not support a finding that she consented to use of
test results for prosecutorial purposes. Singleton delivered two chil-
dren through the medical assistance of MUSC. In connection with her
first child, delivered on November 9, 1989, a postpartum urine screen
tested positive for cocaine. She had received no prenatal services at
the obstetrics clinic. She admitted at the time that she consented to the
urine drug screen because she "thought she was clean." Based on the
November 9 test, she was arrested. During the course of a second
pregnancy in 1990, she had two positive drug screens. When she was
admitted for delivery in November 1990, she again tested positive for
cocaine. As an alternative to arrest for drug abuse, Singleton voluntar-
ily admitted herself to inpatient treatment at the MUSC Institute of
Psychiatry. While her arrest in 1989 shows her knowledge of the Pol-
icy when she submitted samples with respect to her second pregnancy
and delivery in 1990, the record fails to support a finding that she had
knowledge of the Policy or of prosecutorial purposes when she was
tested in 1989. Accordingly, under the "new" standard under which
we are now considering Singleton’s claim, I would conclude that a
reasonable jury could not find that Singleton consented to the search
in 1989 that led to her arrest.

With respect to Ellen Knight, the majority opinion concludes that
she does not have standing to assert a claim because only her child’s
urine was tested. I agree. And with respect to Darlene Nicholson, the
majority opinion concludes that she was tested after the Policy had
been discontinued. While the majority opinion would remand Nichol-
son’s claim to determine whether in fact she was searched under the
Policy, I respectfully submit that the burden is on Nicholson to dem-
 FERGUSON v. CITY OF CHARLESTON 43
onstrate that she was searched pursuant to the Policy, and she has
failed to carry that burden.

V

In adopting, modifying, and implementing Policy M-7, MUSC has
made a serious effort to address a serious problem — a problem that
exists not only in South Carolina but also nationwide. Drug abuse by
pregnant women harms the woman as well as the fetus that she car-
ries, permanently injuring the fetus and imposing on the baby a life-
time of problems from birth. Far beyond the problems of the mother
and child are the enormous social problems borne by the community.
Even as well-intended as Policy M-7 may be, it must nonetheless
comport with constitutional constraints. The Supreme Court has con-
cluded that coupling the medically necessary drug testing of women
who present evidence of drug abuse with the concomitant purpose of
prosecuting them based on the results of the drug tests is not justified
by a "special needs" exception to the Fourth Amendment. The Court
held that only if such testing were, as a factual matter, consented to
could such a search be made, and on the consent question, the Court
committed the issue to us to resolve.

I respectfully submit that the record amply supports the jury’s find-
ing that all of the women voluntarily supplied urine samples for test-
ing. And, if we must require an informed consent, the record amply
supports the jury’s finding that five of the women — Pamela Pear,
Paula Hale, Crystal Ferguson, Theresa Joseph, and Patricia Williams
— knowingly consented to the searches and that four other women do
not have claims because three — Lori Griffin, Sandra Powell, and
Darlene Nicholson — submitted urine samples under a purely medi-
cal protocol, and Ellen Knight was never personally tested under the
Policy. Only as to Laverne Singleton does the evidence fail to support
the district court’s judgment under this standard.

Accordingly, on remand from the Supreme Court, I would affirm,
or, alternately, I would reverse the judgment of the district court as
to Singleton and affirm as to the other appellants.