Andrews v. Love

BUSSEY, Judge,

specially concurring:

It is well settled that the Fourth Amendment protects an individual’s reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Assuredly, I do not suggest that a compelled surgical intrusion into an individual’s body for evidence does not implicate expectations of privacy. However, the Fourth Amendment neither forbids nor permits all such intrusions; rather, the Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). When this standard is applied to the facts of this case, I believe the removal of the bullet is reasonable and proper, and the district court’s order should be sustained.

The State’s case is admittedly circumstantial. On March 3, 1988, Hatten Lee Ledford was fatally wounded in his home. There were no eyewitnesses. Mrs. J.R. Dial has testified that she talked to Led-ford as he lay on the floor dying, and he claimed that John D. Miser, a neighbor, had shot him. Ledford also stated to Mrs. Dial that he had returned fire against his attacker. A .22 rifle with spent shell casings was found lying next to Ledford’s body.

Within one hour of the shooting, petitioner was found approximately a quarter of a mile from Ledford’s house. Petitioner had been shot in the chest, and it was determined that a bullet was lodged in his arm. Subsequent investigation uncovered a .20 gauge shotgun in a pond approximately three-tenths of a mile from Ledford’s house.

Dr. Edward Lee testified that the removal of the bullet from petitioner’s arm can be accomplished with routine, minor surgical procedures, under local anesthetic, without any significant danger to the health or safety of the petitioner. The bullet is located in the fleshy part of the arm, approximately one and a half centimeters deep, near a major artery, but Dr. Lee testified that if done properly, the bullet can be removed without injury to the vessel. Dr. Lee stated that there is a 99.9 percent chance that the surgery would be an uncomplicated, minor procedure that poses no risk of long-term injury to the petitioner. Finally, the sought-after bullet does not appear to be fragmented or corroded, and OSBI agent Allen Selman testified that Ledford’s gun leaves identifying markings on the bullets that it fires.

In United States v. Crowder, 543 F.2d 312 (D.C.Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977), *716the court held that an operation performed under a local anesthetic, removing a bullet-like object located immediately under the skin in Crowder’s forearm, was a reasonable search under the Fourth Amendment. In support of its decision, the court provided the following factors:

1) the evidence sought was relevant, could have been obtained in no other way, and there was probable cause to believe that the operation would produce it;
2) the operation was minor, was performed by a skilled surgeon, and every possible precaution was taken to guard against any surgical complications, so that the risk of permanent injury was minimal;
3) before the operation was performed, the district court held an adversary hearing at which the defendant appeared with counsel; and
4) thereafter and before the operation was performed the defendant was afforded an opportunity for appellate review. Id. at 316.

Applying these factors to the present case, it is clear that the evidence sought is relevant, can be obtained in no other way, and there is probable cause to believe that the operation would produce it. The operation is minor and would be performed by a skilled surgeon under a local anesthetic. The risk of permanent injury is minimal, and further x-rays would be taken to ensure petitioner’s safety. Finally, petitioner has been afforded both an adversary hearing and appellate review.

The Supreme Court addressed surgical intrusion in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). Lee involved a surgical procedure under a general anesthetic for the removal of a bullet lodged in the muscular tissue of the chest, approximately three centimeters deep. In medical terms, it seems fairly obvious that the surgery contemplated in Lee entailed a greater risk of permanent injury than the surgery involved in Crowder or the present case.

In Lee, the Supreme Court restated the procedural requirements of Schmerber, supra, that being, probable cause and a search warrant. The court then established a balancing test weighing the extent to which the procedure may threaten the individual’s safety or health, the extent of intrusion upon the individual’s dignity interests in personal privacy and bodily integrity, and the community’s interest in fairly and accurately determining guilt or innocence. Id. 470 U.S. at 758-60, 105 S.Ct. at 1615-16.

In affirming the lower court’s denial of the surgery, the court pointed to the conflicting testimony regarding the medical risks of the surgery, and of particular concern was the use of the general anesthetic. The court also expressed doubt about the probative value of the bullet due to corrosion while inside Lee’s body, and the availability of alternative evidence against Lee. Id. 470 U.S. at 766 n. 10, 105 S.Ct. at 1619 n. 10.

Applying these factors to the present case, I find the following: (1) probable cause is established by the petitioner’s close proximity to the scene of the homicide; (2) the procedure is not life-threatening; (3) the surgery would be performed under local anesthetic; (4) the community has a strong interest in determining petitioner’s guilt or innocence to the charge of murder; (5) the bullet is still intact inside petitioner’s arm; and (6) there is no other alternative evidence.

The Supreme Court declared in Lee that the reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach. Id. 470 U.S. at 760, 105 S.Ct. at 1616. Obviously, reasonableness is a matter of degree, and I do not suggest that a court may order any challenged operation in any given case. However, this is a case of murder in the first degree. If we were to disallow bodily intrusion based on the presence of any risk, no matter how slight, then no such operation could ever be authorized by a court. I do not believe this is or should be the law.

Based on the totality of the circumstances in this case, and applying the balancing standards above, I find that the State has demonstrated a compelling need for the *717bullet, with minimal risk to the petitioner, and the district court’s order should be affirmed.