CNN.com: “Police want bullet in teen’s forehead”

On CNN.com this evening is this story: Police want bullet in teen’s forehead:

In the middle of Joshua Bush’s forehead, two inches above his eyes, lies the evidence that prosecutors say could send the teenager to prison for attempted murder: a 9 mm bullet, lodged just under the skin.

Prosecutors say it will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.

But Bush and his lawyer are fighting the removal, in a legal and medical oddity that raises questions about patient privacy and how far the government can go to solve crimes without running afoul of the constitutional protection against unreasonable searches and seizures.

“It’s unfortunate this arguably important piece of evidence is in a place where it can’t be easily retrieved,” said Seth Chandler, a professor at the University of Houston Law Center. “You have to balance our desire to convict the guilty against the government not poking around our bodies on a supposition.”

The relevant case is Winston v. Lee, 470 U.S. 753, 760 (1983):

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. In a given case, the question whether the community’s need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers. We believe that Schmerber, however, provides the appropriate framework of analysis for such cases.

Winston involved a search by surgery, but the search in that case was more intrusive than this one appears, and the Supreme Court held that the search was unreasonable because of the risks to the patient. The truth seeking function of the criminal justice system had to take a back seat to the rights of the individual in Winston’s case.

Will Mr. Bush get the same ruling? From what I’ve read, likely not.

As an aside, and a matter of history, when I was in the Prosecuting Attorney’s Office in Little Rock in the 1970’s, we sought removal of a bullet from the body of a police officer accused of a sexual assault. The eyewitness testimony was shaky, because it was night and involved a home intrusion. The assault victim’s father heard the attack and shot the assailant with a .22, and the bullet in this person was under the skin on the opposite side from the entry wound, apparently having travelled around the ribcage to the other side of the body. After I researched the issue, the search warrant was pursued in an adversary proceeding naming the person to be searched as a respondent. Ultimately, the warrant was upheld, and he was ordered in for the surgery which would be under a local anesthetic. By then, there was a scar where the bullet was, and no bullet. We believed he just cut it out himself since a doctor would have to report the gunshot wound.

As a baby lawyer, that was how I learned about intrusive searches of the body for physical evidence in a significant crime.