Ferguson v. City of Charleston, South Carolina: "Fetal abuse," drug testing, and the Fourth Amendment

This note analyzes Ferguson v. City of Charleston, South Carolina, a Fourth Amendment case before the Supreme Court this term. Ferguson's appeal conte nds that the lower court did not properly apply the "special needs" excepti on to a discretionary drug-testing program that targeted pregnant hospital patients and was created by police and prosecutors primarily for law enforc ement purposes. This note attempts to place Ferguson's arrest in the contex t of a rash of similar prosecutions for "fetal abuse," and reviews the deve lopment of the "special needs " exception. It then focuses on the Fourth Ci rcuit's dissent in Ferguson and the Seventh Circuit's majority opinion in C ity of Indianapolis v. Edmond, another Fourth Amendment case before the Cou rt this term. This note concludes that the Court should seize this opportun ity to clarify and narrow the "special needs " exception by requiring a thr eshold inquiry into the purpose of the search. A court should move on to th e "special needs " balancing test only, if the purpose of the search is cle arly related to concerns other than ordinary crime detection, such as the e nforcement of civil regulatory prorams. If the purpose is to gather evidenc e for use in arrest or prosecution, however, the ordinary wart ant and prob able cause requirements should apply.