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.

Randolph does not require the police to seek out every potential objector to a search before seeking consent from a co-tenant. United States v. Brown, 2006 U.S. Dist. LEXIS 91484 (N.D. Ga. December 18, 2006). Comment: This was the subject of a comment by me five days ago at the bottom of the December 16th post. This is going to keep coming up, but defense counsel should give up on raising this issue.

State search warrant led to federal prosecution. The fact that state officials were the primary investigating agency and federal agents came along and even talked about taking the case federal did not require that a federal judicial officer had to have issued the warrant under Rule 41. It was a state warrant, and the feds were along for the ride to see what they might do, and that does not require issuance of a warrant under Rule 41. United States v. Jones, 2006 U.S. App. LEXIS 31285 (8th Cir. December 20, 2006):

Alternatively, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there still would have been no significant federal participation in the search. Jones contends that the search in the instant case had significant federal involvement based on United States v. Tavares, 223 F.3d 911 (8th Cir. 2000). In Tavares, we found significant federal participation triggered the federal no-knock warrant requirements of 18 U.S.C. § 3109 where federal officers discussed the possibility of a federal prosecution with state police prior to participating in a search authorized by a state-court-issued warrant. Id. at 915. This was so even though the federal officers were not involved in the planning, directing or organization of the search. Id. We held that "where federal agents directly participate in a search conducted pursuant to a state warrant, but with an expectation of federal prosecution, the stage is set for the circumvention of more restrictive federal requirements such as those set forth in section 3109." Id. at 916.

Tavares would not control in the instant case for two reasons. First, the district court made a factual finding that the federal agents had no expectation of federal prosecution prior to the search. Second, Jones has not asserted any potential evasion of a substantive federal requirement, such as the evasion of the § 3109 no-knock warrant requirements in Tavares. Instead, the instant case would appear to be controlled by United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997), where we found no significant federal involvement "even if there were federal officers present at the search ... [because] the warrant was not issued and executed pursuant to federal authority." Id. at 443. Tavares did not overrule Schroeder, but rather distinguished it on the basis that the federal officers in Tavares envisioned a federal prosecution, yet avoided the federal no-knock warrant requirements of § 3109. Tavares, 223 F.3d at 916. In the instant case, as in Schroeder, "[the federal rule] was irrelevant to [the officers] at the time the warrant issued." Schroeder, 129 F.3d at 443 (quoting United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992)) (alterations in Schroeder). Therefore, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there would have been no significant federal participation in the search and Rule 41 would not apply.

Failure to object to the U.S. Magistrate Judge's Report and Recommendation on a search and seizure precludes appellate review. United States v. Russo, 210 Fed. Appx. 525 (7th Cir. 2006)* (unpubulished).

During execution of a warrant, officers did not act unreasonably in pointing guns at everybody inside because of officers objectively fearing a risk of violence by others during execution of the warrant. Qualified immunity defeats § 1983 action. Halsell v. Etter, 208 Fed. Appx. 413 (6th Cir. 2006).*