96
Scalia, J., dissenting
lines will be drawn in the case-by-case development of a whole new branch of Fourth Amendment jurisprudence, taking yet another social judgment (which confidential relationships ought not be invaded by the police) out of democratic control, and confiding it to the uncontrolled judgment of this Court—uncontrolled because there is no common-law precedent to guide it. I would adhere to our established law, which says that information obtained through violation of a relationship of trust is obtained consensually, and is hence not a search.4
it enshrouded in darkness—unless the Court means that such reporting requirements are clearly bad. (If voluntary betrayal of a trust in mere cooperation with the police constitutes a Fourth Amendment search, surely betrayal of a trust at the direction of the legislature must be.) But in any event, reporting requirements are an infinitesimal part of the problem. What about a doctor's—or a spouse's—voluntary provision of information to the police, without the compulsion of a statute?
4 The Court contends that I am "mischaracteriz[ing]" its opinion, since the Court is merely "assum[ing] for purposes of decision that the patients did not consent to the searches, and [leaves] the question of consent for the Court of Appeals to determine." Ibid. That is not responsive. The "question of consent" that the Court leaves open is whether the patients consented, not merely to the taking of the urine samples, but to the drug testing in particular, and to the provision of the results to the police. Consent to the taking of the samples alone—or even to the taking of the samples plus the drug testing—does not suffice. The Court's contention that the question of the sufficiency of that more limited consent is not before us because respondents did not raise it, see ante, at 74, n. 6, is simply mistaken. Part II of respondents' brief, entitled "The Petitioners consented to the searches," argues that "Petitioners . . . freely and voluntarily . . . provided the urine samples"; that "each of the Petitioners signed a consent to treatment form which authorized the MUSC medical staff to conduct all necessary tests of those urine samples—including drug tests"; and that "[t]here is no precedent in this Court's Fourth Amendment search and seizure jurisprudence which imposes any . . . requirement that the searching agency inform the consenting party that the results of the search will be turned over to law enforcement." Brief for Respondents 38-39. The brief specifically takes issue with the District Court's charge to the jury—which the Court chooses to accept as an unexaminable "given," see ante, at 74, n. 6—that "the Respondents were required to
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