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The United States has a black president and a glamorous first lady who is a descendant of slaves. Stevenson said. These little manifestations of black artistry and athleticism and excellence have always existed. If current trends continue, one in three black men are expected to spend time in prison at some point in their lives.
There are 1. Pull back even farther into history, experts say, and the picture gets starker. Black people were overwhelmingly excluded from the largest opportunities for wealth creation in the 20th century, from federally subsidized homeownership after World War II to the job training programs that created millions of middle-class livelihoods. The Confederate flag still flies at the state capitol in Columbia, S. Black people across the South live on streets named for heroes of the side of the Civil War that opposed the end to slavery.
For many black people, Charleston is of a piece with the story of black life in America. Greg Tate, a black writer and musician, said black people could not help but feel that they are under siege in a society afflicted with amnesia about its own history. Tate said. We see with Dylann Roof there is already a rush to not only dissociate other white Americans from his violence but to distance he himself from his own stated investment in white supremacist ideology.
The era of instantaneously shared images holds out hope for change. In , the prosecutor's office added an "amnesty" component to the policy: women testing positive for cocaine were given the "option" of drug treatment to avoid arrest. If they failed to follow through on treatment or if they tested positive a second time, however, they were arrested. Department of Health and Human Services began investigating whether the hospital in carrying out the policy had violated the civil rights of its African American patients, MUSC dropped its program. In total, 30 women were arrested under the policy; 29 were African American.
Punishing women who use drugs during pregnancy deters them from seeking critical prenatal care and entering drug treatment programs. If the goal is to protect fetuses and to help women become drug-free mothers, punitive measures have the opposite effect. Recent studies done in hospitals and health-care centers in San Diego, Chicago, and Detroit, for example, indicate that when pregnant women fear that they will be prosecuted for their drug use, they do not seek prenatal care and will even choose to deliver their babies at home D.
Indeed, MUSC's policy appears to have driven drug-using women out of the health-care system in that region, isolating them in their drug use rather than helping them have healthy pregnancies and healthy babies L. The punitive approach to drug use during pregnancy also stops women from participating in drug-treatment programs. In another high-profile South Carolina case, involving the Easely Baptist Medical Center, a young woman, Cornelia Whitner, was arrested for "endangering the life of her unborn child" and sentenced to eight years in prison after she gave birth to a healthy baby boy whose urine, nonetheless, tested positive for cocaine.
Following the publicity surrounding this case, two drug-treatment programs in Columbia, SC, reported a precipitous drop in the number of pregnant women entering their facilities. One clinic found that between and , it admitted 80 percent fewer pregnant women than it had a year earlier; the other saw 54 percent fewer pregnant women during the same time period L. Recognizing that criminalizing maternal drug use is bad medicine and bad public policy, with potentially tragic consequences for pregnant women, their fetuses, and their families, numerous medical and public-health organizations have denounced the practice.
Pregnant women enjoy the same constitutional rights as other competent adults. Pregnant women have as great a right to privacy, bodily integrity, and autonomy as other free adults. This means that the state cannot subject women to warrantless, suspicionless, nonconsensual searches just because they are pregnant. MUSC's drug testing policy did just that. Imagine if the tides were turned, and the state began testing men of child-bearing age for illegal drug use because they did not have annual physicals or had a history of substance abuse.
Imagine further that officials arrest and take into custody in the name of their unborn children those men with positive toxicology reports. Given that recent studies have linked male drug use to sperm abnormalities that can cause birth defects, this is not such a far-fetched scenario I.
It is doubtful, however, that law enforcement working in tandem with medical providers would consider implementing such a practice. And surely if they did, the courts would rightfully hold such policies unconstitutional. The rules, however, seem to change when it comes to pregnant women, though the Constitution does not. It is hard to imagine subjecting fathers or soon-to-be fathers to the same level of state interference in their private lives as we do pregnant women. We do not strip fathers of their constitutional rights, even when their behavior may have deleterious effects on their offspring.
We do not, for example, arrest fathers and remove them from their families if they smoke two packs of cigarettes a day around their children and their pregnant wives, though there is ample evidence that exposure -- even prenatal exposure -- to second-hand smoke can have serious long-term health effects. Pregnant women, on the other hand, have been arrested or threatened with arrest for consuming not just illegal substances, such as cocaine, but legal substances as well. There are at least two recent incidents of state authorities arresting women for consuming alcohol during pregnancy: one in South Carolina, the other in Wyoming Paltrow, ; R.
And in case the message to pregnant women was not clear, officials in the South Carolina Department of Alcohol and Other Drug Abuse Services recently distributed literature advising pregnant women that "it's. These and other state policies aimed at policing pregnant women assume that pregnant women are different from other competent adults, that in becoming pregnant, women somehow become wards of the state or forfeit their constitutional rights. The Constitution, however, protects all of us, pregnant women included.
Guy F. Atkinson Co. 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 rational jury could find that Nicholson gave her informed consent to the search.
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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.
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 Appellants 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. 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 concerns only a question of constitutional procedure: whether Appellants gave their informed consent to be searched, i. It is to that question that we now turn. The Fourth Amendment prohibits unreasonable searches, see U. IV, and searches conducted without a warrant are per se unreasonable unless a valid exception to the warrant requirement applies, see Schneckloth v.
Bustamonte , U. Voluntary consent to a search is such an exception. In determining whether consent to search was freely and voluntarily given, the factfinder must examine the totality of the circumstances surrounding the consent. 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.
Pamela Ferguson, NP
Of particular relevance here, the factfinder must consider "the possibly vulnerable subjective state of the person who consents. 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. 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 factual 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 circumstances, 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 law enforcement involvement in the Policy is critical to the existence of informed consent. The Court admonished that "when [medical personnel] undertake to obtain Arizona , U. 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, critical 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 purposes, but rather by agents of law enforcement for purposes of crime detection.
Appellees assert that the tests were, in fact, done for medical purposes. Insofar as the intent of the Policy was to provide medical assistance 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.
Ferguson II , U. 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. See Trulock v. Freeh , F. 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 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. 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 purposes. Rather, to the extent the forms alerted Appellants to the possibility 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 circumstances 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 contrary, 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 consent to the searches. Stoner v. California , U.
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Because neither the general nor the ambulatory consent form establishes express consent to a search for evidence of criminal activity for law enforcement purposes, we must consider whether Appellants gave implied consent, i. Courts generally are reluctant to infer consent from mere notice followed by voluntary conduct.
See McGann v. Northeast Ill. Reg'l Commuter R. For the reasons set forth below, we conclude that the evidence 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 finding of knowledge of the critical portions of the Policy—namely, that the Policy involved searches of patients' urine for evidence of criminal 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 purposes of the Fourth Amendment, to treatment at MUSC.
Griffin was searched under the Policy during a hospital admission for preterm labor in early October And, no testimony 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. Powell's urine tested positive for cocaine when she delivered her son in October 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. Singleton first tested positive for cocaine in connection with the birth of a child in November 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.
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 purposes. Appellees note that Singleton "was arrested after another Appellant's well-publicized arrest.
Even assuming that Singleton's knowledge of this arrest would be sufficient for a rational jury to infer her knowledge of the critical provisions of the Policy, there is no evidence that Singleton was aware of the arrest. The mere fact that an arrest was "well-publicized" provides no indication that a particular individual was aware of the publicity. 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 , 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 Singleton 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 urine drug screen was going to be performed for law enforcement purposes.
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. This evidence is sufficient to support a finding of knowledge by a rational jury. Hale delivered a baby at MUSC in December , having received no prenatal care during her pregnancy. Hale's urine was 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.
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" provided 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, Ferguson 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 information, its text — which informed readers that law enforcement authorities would become involved only after continued drug-use problems — actively negates any such reading. In any event, there is no evidence 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, , she viewed the video on substance abuse and signed the Solicitor'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 provided by the video, which was simply a general production regarding the dangers of prenatal drug use and which included no discussion of 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 purposes.
Rather, the only reference to the involvement of law enforcement 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.
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 rational jury could infer that Joseph had knowledge of the critical aspects 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.
For the reasons set forth above, we conclude that a rational jury could have found the requisite knowledge of the Policy only as to Singleton and Pear. As to the other Appellants, the evidence does not support a finding of knowledge. In addition to knowledge, Appellees also bore the burden of proving 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 voluntariness under the totality of the circumstances is "the possibly vulnerable subjective state of the person who consents. 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 immediately prior to the search in two cases, by emergency cesarian section.
Another three searches including the second search of Pear were performed on patients experiencing preterm labor, and two searches — the June searches of Theresa Joseph — were performed 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 , F. No evidence bearing on this issue was presented by Appellees. More generally, we note that Appellants were all insured by Medicaid 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 delivery, the record conclusively demonstrates that they had no choice but to seek such services at MUSC. And, Appellees presented no evidence 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 distress, this is a matter on which Appellees voluntarily assumed the burden of proof.
Appellees' failure to present evidence on this point requires us to assume that Appellants did not have the option of refusing to be searched and still obtaining medical treatment.
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The choice to be searched or forego necessary medical treatment "is the antithesis of free choice" to consent or refuse. New Jersey , U. This voluntariness inquiry is particularly important as to Singleton 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 search at which time she had knowledge of the critical aspects of the policy , 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 without submitting to a search of her urine, or that she could have foregone such care altogether.
We therefore conclude that even though Singleton at the time of the November search and Pear possessed the requisite knowledge of the policy, a rational jury could not find voluntariness. It may be the case, as Justice Scalia suggested, that the outcome of this appeal is evidence "that no good deed goes unpunished. It is certainly disheartening that, as a result of our holding today, damages may be imposed on those who acted with the best interest of Appellants and their children at heart.
But, however noble Appellees' intentions, the regrettable and inescapable conclusion remains that Appellees did not bear their burden of proving that they obtained constitutionally valid consent. Because Knight suffered no constitutional violation, we affirm as to her. On remand, the district court should conduct proceedings regarding Darlene Nicholson's standing and Appellants' damages. 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 appellants, 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 standard, 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. The district court rejected MUSC's claim that the purported 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. On appeal, we affirmed, but not on the issue of consent. We concluded that the searches themselves were reasonable under the "special 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.
Dep't of State Police v. Sitz , U. Wisconsin , U. 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 purposes.
Ferguson , F. On review by certiorari, the Supreme Court reversed our judgment and remanded the case for further proceedings. 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 prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs.
The Court then reiterated 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. 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. 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 standards of knowing waiver require.
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 information, regardless of whether the act was knowing or intelligent or whether the inducement was complete, true, or accurate.
See, e. 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 , U. 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 agrees with this observation. See ante at n. 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 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 judgment, 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 knowledge, provide the urine samples voluntarily.
Because there is no evidence 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. 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 unreasonable and in violation of the Constitution of the United States, unless the defendants have shown by the greater weight or preponderance of the evidence that the plaintiffs consented to those searches. 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 plaintiff and reach a decision on the question of consent.
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After telling the jury that the State carried the burden of proving consent, the court then proceeded to explain how the jury was to conclude 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.