98
Scalia, J., dissenting
II
I think it clear, therefore, that there is no basis for saying that obtaining of the urine sample was unconstitutional. The special-needs doctrine is thus quite irrelevant, since it operates only to validate searches and seizures that are otherwise unlawful. In the ensuing discussion, however, I shall assume (contrary to legal precedent) that the taking of the urine sample was (either because of the patients' necessitous circumstances, or because of failure to disclose that the urine would be tested for drugs, or because of failure to disclose that the results of the test would be given to the police) coerced. Indeed, I shall even assume (contrary to common sense) that the testing of the urine constituted an unconsented search of the patients' effects. On those assumptions, the special-needs doctrine would become relevant; and, properly applied, would validate what was done here.
The conclusion of the Court that the special-needs doctrine is inapplicable rests upon its contention that respondents "undert[ook] to obtain [drug] evidence from their patients" not for any medical purpose, but "for the specific purpose of incriminating those patients." Ante, at 85 (emphasis in original). In other words, the purported medical rationale was merely a pretext; there was no special need. See Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 621, n. 5 (1989). This contention contradicts the District Court's finding of fact that the goal of the testing policy "was not to arrest patients but to facilitate their treatment and protect both the mother and unborn child." App. to Pet. for Cert. A-38.8 This finding is binding upon us unless clearly erroof the urine sample was unconsented), there is on my analysis no factual consent issue remaining.
8 The Court believes that this finding "must be read in light of" the District Court's comment that " 'these searches were not done by the medical university for independent purposes. . . . [T]he police came in and there was an agreement reached that the positive screens would be shared with the police. And then the screen is not done independent of police,
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