US SUPREME COURT DECISIONS

A shopkeeper was wounded by gunshot during an attempted robbery but, also being armed with a gun, apparently wounded his assailant in his left side, and the assailant then ran from the scene. Shortly after the victim was taken to a hospital, police officers found respondent, who was suffering from a gunshot wound to his left chest area, eight blocks away from the shooting. He was also taken to the hospital, where the victim identified him as the assailant. After an investigation, the police charged respondent with, inter alia, attempted robbery and malicious wounding. Thereafter the Commonwealth of Virginia moved in state court for an order directing respondent to undergo surgery to remove a bullet lodged under his left collarbone, asserting that the bullet would provide evidence of respondent's guilt or innocence. On the basis of expert testimony that the surgery would require an incision of only about one-half inch, could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed," the court granted the motion, and the Virginia Supreme Court denied respondent's petition for a writ of prohibition and/or a writ of habeas corpus. Respondent then brought an action in Federal District Court to enjoin the pending operation on Fourth Amendment grounds, but the court refused to issue a preliminary injunction. Subsequently, X rays taken just before surgery was scheduled showed that the bullet was lodged substantially deeper than had been thought when the state court granted the motion to compel surgery, and the surgeon concluded that a general anesthetic would be desirable. Respondent unsuccessfully sought a rehearing in the state trial court, and the Virginia Supreme Court affirmed. However, respondent then returned to the Federal District Court, which, after an evidentiary hearing, enjoined the threatened surgery. The Court of Appeals affirmed.

Held. The proposed surgery would violate respondent's right to be secure in his person and the search would be "unreasonable" under the Fourth Amendment. Pp. 470 U. S. 758-767.

(a) A compelled surgical intrusion into an individual's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence chanrobles.com-red

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of a crime. The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence. The appropriate framework of analysis for such cases is provided in Schmerber v. California, 384 U. S. 757, which held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect's Fourth Amendment rights. Beyond the threshold requirements as to probable cause and warrants, Schmerber's inquiry considered other factors for determining "reasonableness" -- including the extent to which the procedure may threaten the individual's safety or health, the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the community's interest in fairly and accurately determining guilt or innocence. Pp. 470 U. S. 758-763.

(b) Under the Schmerber balancing test, the lower federal courts reached the correct result here. The threats to respondent's safety posed by the surgery were the subject of sharp dispute, and there was conflict in the testimony concerning the nature and scope of the operation. Thus, the resulting uncertainty about the medical risks was properly taken into account. Moreover, the intrusion on respondent's privacy interests and bodily integrity can only be characterized as severe. Surgery without the patient's consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient's ordinary control over surgical probing beneath his skin. On the other hand, the Commonwealth's assertions of compelling need to intrude into respondent's body to retrieve the bullet are not persuasive. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted the victim. Pp. 470 U. S. 763-766.

717 F.2d 888, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J.,filed a concurring opinion, post, p. 470 U. S. 767. BLACKMUN and REHNQUIST, JJ., concurred in the judgment. chanrobles.com-red

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