U.S. Supreme Court Winston v. Lee, 470
U.S. 753 (1985) Winston v. Lee No. 83-1334 Argued October 31,
1984 Decided March 20,
1985 470
U.S. 753 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus 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 Page 470 U. S. 754 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. Page 470 U. S. 755 JUSTICE BRENNAN delivered the opinion of the Court. Schmerber v. California, 384 U.
S. 757 (1966), held, inter alia, that a State
may, over the suspect's protest, have a physician extract blood
from a person suspected of drunken driving without violation of the
suspect's right secured by the Fourth Amendment not to be subjected
to unreasonable searches and seizures. However, Schmerber cautioned:

															"That we today hold that the Constitution does not forbid the
States['] minor intrusions into an individual's body under
stringently limited conditions in no way indicates that it permits
more substantial intrusions, or intrusions under other
conditions." Id. at 384 U. S. 772 .
In this case, the Commonwealth of Virginia seeks to compel the
respondent Rudolph Lee, who is suspected of attempting to commit
armed robbery, to undergo a surgical procedure under a general
anesthetic for removal of a bullet lodged in his chest. Petitioners
allege that the bullet will provide evidence of respondent's guilt
or innocence. We conclude that the procedure sought here is an
example of the "more substantial intrusion" cautioned against in Schmerber, and hold that to permit the procedure would
violate respondent's right to be secure in his person guaranteed by
the Fourth Amendment. I A At approximately 1 a. m. on July 18, 1982, Ralph E. Watkinson
was closing his shop for the night. As he was locking the door, he
observed someone armed with a gun coming toward him from across the
street. Watkinson was also armed, and when he drew his gun, the
other person told him to freeze. Watkinson then fired at the other
person, who returned his fire. Watkinson was hit in the legs, while
the other individual, who appeared to be wounded in his left side,
ran from the scene. The police arrived on the scene shortly
thereafter, and Watkinson was taken by ambulance Page 470 U. S. 756 to the emergency room of the Medical College of Virginia (MCV)
Hospital.

															Approximately 20 minutes later, police officers responding to
another call found respondent eight blocks from where the earlier
shooting occurred. Respondent was suffering from a gunshot wound to
his left chest area, and told the police that he had been shot when
two individuals attempted to rob him. An ambulance took respondent
to the MCV Hospital. Watkinson was still in the MCV emergency room
and, when respondent entered that room, said "[t]hat's the man that
shot me." App. 14. After an investigation, the police decided that
respondent's story of having been himself the victim of a robbery
was untrue, and charged respondent with attempted robbery,
malicious wounding, and two counts of using a firearm in the
commission of a felony. B The Commonwealth shortly thereafter moved in state court for an
order directing respondent to undergo surgery to remove an object
thought to be a bullet lodged under his left collarbone. The court
conducted several evidentiary hearings on the motion. At the first
hearing, the Commonwealth's expert testified that the surgical
procedure would take 45 minutes and would involve a three to four
percent chance of temporary nerve damage, a one percent chance of
permanent nerve damage, and a one-tenth of one percent chance of
death. At the second hearing, the expert testified that, on
reexamination of respondent, he discovered that the bullet was not
"back inside close to the nerves and arteries," id. at 52,
as he originally had thought. Instead, he now believed the bullet
to be located "just beneath the skin." Id. at 57. He
testified that the surgery would require an incision of only one
and one-half centimeters (slightly more than 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." Id. at 51. Page 470 U. S. 757 The state trial judge granted the motion to compel surgery.
Respondent petitioned the Virginia Supreme Court for a writ of
prohibition and/or a writ of habeas corpus, both of which were
denied. Respondent then brought an action in the United States
District Court for the Eastern District of Virginia to enjoin the
pending operation on Fourth Amendment grounds. The court refused to
issue a preliminary injunction, holding that respondent's cause had
little likelihood of success on the merits. 551 F.
Supp. 247 , 247 -253
(1982). [ Footnote 1 ]

															On October 18, 1982, just before the surgery was scheduled, the
surgeon ordered that X-rays be taken of respondent's chest. The
X-rays revealed that the bullet was in fact lodged two and one-half
to three centimeters (approximately one inch) deep in muscular
tissue in respondent's chest, substantially deeper than had been
thought when the state court granted the motion to compel surgery.
The surgeon now believed that a general anesthetic would be
desirable for medical reasons.

															Respondent moved the state trial court for a rehearing based on
the new evidence. After holding an evidentiary hearing, the state
trial court denied the rehearing, and the Virginia Supreme Court
affirmed. Respondent then returned to federal court, where he moved
to alter or amend the judgment previously entered against him.
After an evidentiary hearing, the District Court enjoined the
threatened surgery. 551 F. Supp. at 253-261 (supplemental opinion).
[ Footnote 2 ] Page 470 U. S. 758 A divided panel of the Court of Appeals for the Fourth Circuit
affirmed. 717 F.2d 888 (1983). [ Footnote 3 ] We granted certiorari, 466 U.S. 942 (1984), to
consider whether a State may, consistently with the Fourth
Amendment, compel a suspect to undergo surgery of this kind in a
search for evidence of a crime. II The Fourth Amendment protects "expectations of privacy," see
Katz v. United States, 389 U. S. 347 (1967) --the individual's legitimate expectations that, in certain
places and at certain times, he has "the right to be let alone --
the most comprehensive of rights and the right most valued by
civilized men." Olmstead v. United
States , 277 U. S. 438 , Page 470 U. S. 759 277 U. S. 478 (1928) (Brandeis, J., dissenting). Putting to one side the
procedural protections of the warrant requirement, the Fourth
Amendment generally protects the "security" of "persons, houses,
papers, and effects" against official intrusions up to the point
where the community's need for evidence surmounts a specified
standard, ordinarily "probable cause." Beyond this point, it is
ordinarily justifiable for the community to demand that the
individual give up some part of his interest in privacy and
security to advance the community's vital interests in law
enforcement; such a search is generally "reasonable" in the
Amendment's terms.

															A compelled surgical intrusion into an individual's body for
evidence, however, implicates expectations of privacy and security
of such magnitude that the intrusion may be "unreasonable" even if
likely to produce evidence of a crime. In Schmerber v.
California, 384 U. S. 757 (1966), we addressed a claim that the State had breached the Fourth
Amendment's protection of the "right of the people to be secure in
their persons . . . against unreasonable searches and
seizures" (emphasis added) when it compelled an individual
suspected of drunken driving to undergo a blood test. Schmerber had
been arrested at a hospital while receiving treatment for injuries
suffered when the automobile he was driving struck a tree. Id. at 384 U. S. 758 .
Despite Schmerber's objection, a police officer at the hospital had
directed a physician to take a blood sample from him. Schmerber
subsequently objected to the introduction at trial of evidence
obtained as a result of the blood test.

															The authorities in Schmerber clearly had probable cause
to believe that he had been driving while intoxicated, id. at 384 U. S. 768 ,
and to believe that a blood test would provide evidence that was
exceptionally probative in confirming this belief. Id. at 384 U. S. 770 .
Because the case fell within the exigent circumstances exception to
the warrant requirement, no warrant was necessary. Ibid. The search was not more intrusive than reasonably necessary to
accomplish its goals. Nonetheless, Page 470 U. S. 760 Schmerber argued that the Fourth Amendment prohibited the
authorities from intruding into his body to extract the blood that
was needed as evidence. Schmerber noted that

															"[t]he overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by the
State." Id. at 384 U. S. 767 .
Citing Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 (1949), and Mapp v. Ohio, 367 U.
S. 643 (1961), we observed that these values were "basic
to a free society." We also noted that,

															"[b]ecause we are dealing with intrusions into the human body,
rather than with state interferences with property relationships or
private papers -- 'houses, papers, and effects' -- we write on a
clean slate."

															384 U.S. at 384 U. S.
767 -768. The intrusion perhaps implicated Schmerber's
most personal and deep-rooted expectations of privacy, and the
Court recognized that Fourth Amendment analysis thus required a
discerning inquiry into the facts and circumstances to determine
whether the intrusion was justifiable. 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." Id. at 384 U. S.
768 .

															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. Schmerber recognized that the ordinary requirements of
the Fourth Amendment would be the threshold requirements for
conducting this kind of surgical search and seizure. We noted the
importance of probable cause. Id. at 384 U. S.
768 -769. Page 470 U. S. 761 And we pointed out:

															"Search warrants are ordinarily required for searches of
dwellings, and, absent an emergency, no less could be required
where intrusions into the human body are concerned. . . . The
importance of informed, detached and deliberate determinations of
the issue whether or not to invade another's body in search of
evidence of guilt is indisputable and great." Id. at 384 U. S.
770 .

															Beyond these standards, Schmerber's inquiry considered
a number of other factors in determining the "reasonableness" of
the blood test. A crucial factor in analyzing the magnitude of the
intrusion in Schmerber is the extent to which the
procedure may threaten the safety or health of the individual.
"[F]or most people, [a blood test] involves virtually no risk,
trauma, or pain." Id. at 384 U. S. 771 .
Moreover, all reasonable medical precautions were taken, and no
unusual or untested procedures were employed in Schmerber; the procedure was performed "by a physician in a hospital
environment according to accepted medical practices." Ibid. Notwithstanding the existence of probable cause, a
search for evidence of a crime may be unjustifiable if it endangers
the life or health of the suspect. [ Footnote 4 ]

															Another factor is the extent of intrusion upon the individual's
dignitary interests in personal privacy and bodily integrity.
Intruding into an individual's living room, See Payton Page 470 U. S. 762 v. New York, 445 U. S. 573 (1980), eavesdropping upon an individual's telephone conversations, see Katz v. United States, 389 U.S. at 389 U. S. 361 ,
or forcing an individual to accompany police officers to the police
station, see Dunaway v. New York, 442 U.
S. 200 (1979), typically do not injure the physical
person of the individual. Such intrusions do, however, damage the
individual's sense of personal privacy and security, and are thus
subject to the Fourth Amendment's dictates. In noting that a blood
test was "a commonplace in these days of periodic physical
examinations," 384 U.S. at 384 U. S. 771 , Schmerber recognized society's
judgment that blood tests do not constitute an unduly extensive
imposition on an individual's personal privacy and bodily
integrity. [ Footnote 5 ]

															Weighed against these individual interests is the community's
interest in fairly and accurately determining guilt or innocence.
This interest is of course of great importance. We noted in Schmerber that a blood test is "a highly effective means
of determining the degree to which a person is under the influence
of alcohol." Id. at 384 U. S. 771 .
Moreover, there was "a clear indication that in fact [desired]
evidence [would] be found" if the blood test were undertaken. Id. at 384 U. S.
770 . Page 470 U. S. 763 Especially given the difficulty of proving drunkenness by other
means, these considerations showed that results of the blood test
were of vital importance if the State were to enforce its drunken
driving laws. In Schmerber, we concluded that this state
interest was sufficient to justify the intrusion, and the compelled
blood test was thus "reasonable" for Fourth Amendment purposes. III Applying the Schmerber balancing test in this case, we
believe that the Court of Appeals reached the correct result. The
Commonwealth plainly had probable cause to conduct the search. In
addition, all parties apparently agree that respondent has had a
full measure of procedural protections, and has been able fully to
litigate the difficult medical and legal questions necessarily
involved in analyzing the reasonableness of a surgical incision of
this magnitude. [ Footnote 6 ]
Our inquiry therefore must focus on the extent of the intrusion on
respondent's privacy interests and on the State's need for the
evidence.

															The threats to the health or safety of respondent posed by the
surgery are the subject of sharp dispute between the parties.
Before the new revelations of October 18, the District Court found
that the procedure could be carried out "with virtually no risk to
[respondent]." 551 F. Supp. at 252. On rehearing, however, with new
evidence before it, the District Court held that "the risks
previously involved have increased in magnitude even as new risks
are being added." Id. at 260.

															The Court of Appeals examined the medical evidence in the record
and found that respondent would suffer some risks Page 470 U. S. 764 associated with the surgical procedure. [ Footnote 7 ] One surgeon had testified that the
difficulty of discovering the exact location of the bullet "could
require extensive probing and retracting of the muscle tissue,"
carrying with it

															"the concomitant risks of injury to the muscle, as well as
injury to the nerves, blood vessels and other tissue in the chest
and pleural cavity."

															717 F.2d at 900. The court further noted that "the greater
intrusion and the larger incisions increase the risks of
infection." Ibid. Moreover, there was conflict in the
testimony concerning the nature and the scope of the operation. One
surgeon stated that it would take 15-20 minutes, while another
predicted the procedure could take up to two and one-half hours. Ibid. The court properly took the resulting uncertainty
about the medical risks into account. [ Footnote 8 ]

															Both lower courts in this case believed that the proposed
surgery, which for purely medical reasons required the use of a
general anesthetic, [ Footnote
9 ] would be an "extensive" intrusion on respondent's personal
privacy and bodily integrity. Ibid. Page 470 U. S. 765 When conducted with the consent of the patient, surgery
requiring general anesthesia is not necessarily demeaning or
intrusive. In such a case, the surgeon is carrying out the
patient's own will concerning the patient's body, and the patient's
right to privacy is therefore preserved. In this case, however, the
Court of Appeals noted that the Commonwealth proposes to take
control of respondent's body, to "drug this citizen -- not yet
convicted of a criminal offense -- with narcotics and barbiturates
into a state of unconsciousness," id. at 901, and then to
search beneath his skin for evidence of a crime. This kind of
surgery involves a virtually total divestment of respondent's
ordinary control over surgical probing beneath his skin.

															The other part of the balance concerns the Commonwealth's need
to intrude into respondent's body to retrieve the bullet. The
Commonwealth claims to need the bullet to demonstrate that it was
fired from Watkinson's gun, which in turn would show that
respondent was the robber who confronted Watkinson. However,
although we recognize the difficulty of making determinations in
advance as to the strength of the case against respondent,
petitioners' assertions of a compelling need for the bullet are
hardly persuasive. The very circumstances relied on in this case to
demonstrate probable cause to believe that evidence will be found
tend to vitiate the Commonwealth's need to compel respondent to
undergo surgery. The Commonwealth has available substantial
additional evidence that respondent was the individual who accosted
Watkinson on the night of the robbery. No party in this case
suggests that Watkinson's entirely spontaneous identification of
respondent at the hospital would be inadmissible. In addition,
petitioners can no doubt prove that Watkinson was found a few
blocks from Watkinson's store shortly after the incident took
place. And petitioners can certainly show that the location of the
bullet (under respondent's left collarbone) seems to correlate with
Watkinson's report that the robber "jerked" to the left. App. 13.
The fact that the Page 470 U. S. 766 Commonwealth has available such substantial evidence of the
origin of the bullet restricts the need for the Commonwealth to
compel respondent to undergo the contemplated surgery. [ Footnote 10 ]

															In weighing the various factors in this case, we therefore reach
the same conclusion as the courts below. The operation sought will
intrude substantially on respondent's protected interests. The
medical risks of the operation, although apparently not extremely
severe, are a subject of considerable dispute; the very uncertainty
militates against finding the operation to be "reasonable." In
addition, the intrusion on respondent's privacy interests entailed
by the operation can only be characterized as severe. On the other
hand, although the bullet may turn out to be useful to the
Commonwealth in prosecuting respondent, the Commonwealth has failed
to demonstrate a compelling need for it. We believe that, in these
circumstances, the Commonwealth has failed to demonstrate that it
would be "reasonable" under the terms of the Fourth Amendment to
search for evidence of this crime by means of the contemplated
surgery. Page 470 U. S. 767 IV The Fourth Amendment is a vital safeguard of the right of the
citizen to be free from unreasonable governmental intrusions into
any area in which he has a reasonable expectation of privacy. Where
the Court has found a lesser expectation of privacy, see, e.g.,
Rakas v. Illinois, 439 U. S. 128 (1978); South Dakota v. Opperman, 428 U.
S. 364 (1976), or where the search involves a minimal
intrusion on privacy interests, see, e.g., United States v.
Hensley, 469 U. S. 221 (1985); Dunaway v. New York, 442 U.S. at 442 U. S.
210 -211; United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 880 (1975); Adams v. Williams, 407 U.
S. 143 (1972); Terry v. Ohio, 392 U. S.
1 (1968), the Court has held that the Fourth Amendment's
protections are correspondingly less stringent. Conversely,
however, the Fourth Amendment's command that searches be
"reasonable" requires that, when the State seeks to intrude upon an
area in which our society recognizes a significantly heightened
privacy interest, a more substantial justification is required to
make the search "reasonable." Applying these principles, we hold
that the proposed search in this case would be "unreasonable" under
the Fourth Amendment. Affirmed. JUSTICE BLACKMUN and JUSTICE REHNQUIST concur in the
judgment.

															[ Footnote 1 ]

															Respondent's action in the District Court was styled as a
petition for habeas corpus and an action under 42 U.S.C. § 1983 for
a preliminary injunction. Because the District Court denied the
relief sought, it found it unnecessary to consider whether res
judicata, see Allen v. McCurry, 449 U. S.
90 (1980), would bar consideration of the § 1983 claim.
551 F. Supp. at 252, n. 4.

															[ Footnote 2 ]

															Respondent had moved to reopen the petition for habeas corpus,
as well as to alter or amend the judgment. Petitioners moved to
dismiss the petition for habeas on the ground that respondent was
not at that time "in custody" for purposes of 28 U.S.C. § 2241. The
District Court rejected this contention, holding that habeas was
available because respondent was objecting to a future custody that would take place when the operation was to be
performed. 551 F. Supp. at 257-259. The Court of Appeals held that
respondent's claim was cognizable only under § 1983. 717 F.2d 888,
893 (1983). Respondent has not cross-petitioned for review of this
holding, and it is therefore not before us.

															[ Footnote 3 ]

															The Fourth Circuit held that Allen v. McCurry, supra, did not bar respondent's attempt to relitigate in federal court the
same Fourth Amendment issues previously litigated in state court.
The court agreed with the District Court's conclusion, see 551 F. Supp. at 258-259, that respondent had not had a full and
fair opportunity to litigate in the state trial court. 717 F.2d at
895-899. Respondent filed his motion for rehearing in state court
on October 18, the day he was informed of the changed circumstances
regarding the removal of the bullet. On October 19, the state court
ordered an evidentiary hearing to be held on October 21. The Court
of Appeals was

															"satisfied from the record that counsel was not able, despite
obviously diligent effort, to obtain an independent review of the
medical record by outside physicians, nor was he able to consult
with the independent expert in anesthesiology in order to prepare a
presentation on the risks of general anesthesia." Id. at 897. Yet, despite the crucial nature of the
medical evidence, the state court refused to grant respondent's
repeated request for a continuance. Because

															"[t]he arbitrary truncation of preparation time deprived
[respondent] of a fair opportunity to determine the crucial factors
relevant to his claim and to obtain independent expert witnesses to
testify about those factors," id. at 898-899, the Court of Appeals refused to grant
preclusive effect to the state court's findings. Petitioners do not
challenge this ruling.

															[ Footnote 4 ]

															Numerous courts have recognized the crucial importance of this
factor. See, e.g., Bowden v. State, 256 Ark. 820, 823, 510 S.W.2d
879 , 882 (1974) (refusing to order surgery because of medical
risk); People v. Smith, 80 Misc.2d 210, 362 N.Y.S.2d 909
(1974) (same); State v. Allen, 277 S.C. 595, 291
S.E.2d 459 (1982) (same); see also 717 F.2d 888, 900
(CA4 1983) (case below); id. at 905-908 (Widener, J.,
dissenting); United States v. Crowder, 177 U.S. App.D.C.
165, 169, 543 F.2d 312, 316 (1976) (en banc), cert.
denied, 429 U.S. 1062 (1977); State v.
Overstreet, 551 S.W.2d
621 , 628 (Mo.1977) (en banc). See generally Note, 68
Marq.L.Rev. 130, 135 (1984) (discussing cases involving bodily
intrusions); Note, 60 Notre Dame L.Rev. 149, 152-156 (1984) (same);
Note, 55 Texas L.Rev. 147 (1976) (same); Mandell & Richardson,
Surgical Search: Removing a Scar on the Fourth Amendment, 75
J.Crim.L. & C., No. 3, p. 525 (1984).

															[ Footnote 5 ] See also Schmerber, 384 U.S. at 384 U. S. 771 ,
n. 13 (" The blood test procedure has become routine in our
everyday life. It is a ritual for those going into the military
service as well as those applying for marriage licenses. Many
colleges require such tests before permitting entrance, and
literally millions of us have voluntarily gone through the same,
though a longer, routine in becoming blood donors'") (quoting Breithaupt v. Abram, 352 U. S. 432 , 352 U. S. 436 (1957)). The degree of intrusion in Schmerber was
minimized as well by the fact that a blood test "involves virtually
no risk, trauma, or pain," 384 U.S. at 384 U. S. 771 ,
and by the fact that the blood test was conducted "in a hospital
environment according to accepted medical practices." Ibid. As such, the procedure in Schmerber contrasted sharply with the practice in Rochin v.
California, 342 U. S. 165 (1952), in which police officers broke into a suspect's room,
attempted to extract narcotics capsules he had put into his mouth,
took him to a hospital, and directed that an emetic be administered
to induce vomiting. Id. at 342 U. S. 166 . Rochin , recognizing the individual's interest in "human
dignity," id. at 342 U. S. 174 ,
held the search and seizure unconstitutional under the Due Process
Clause. [ Footnote 6 ]

															Because the State has afforded respondent the benefit of a full
adversary presentation and appellate review, we do not reach the
question whether the State may compel a suspect to undergo a
surgical search of this magnitude for evidence absent such special
procedural protections. Cf. United States v. Crowder,
supra, at 169, 543 F.2d at 316; State v. Lawson, 187
N.J.Super. 25, 28-29, 453 A.2d 556 , 558 (App.Div.1982).

															[ Footnote 7 ]

															The Court of Appeals concluded, however, that "the specific
physical risks from putting [respondent] under general anesthesia
may therefore be considered minimal." 717 F.2d at 900. Testimony
had shown that

															"the general risks of harm or death from general anesthesia are
quite low, and that [respondent] was in the statistical group of
persons with the lowest risk of injury from general
anesthesia." Ibid. [ Footnote 8 ]

															One expert testified that this would be "minor" surgery. See App. 99. The question whether the surgery is to be
characterized in medical terms as "major" or "minor" is not
controlling. We agree with the Court of Appeals and the District
Court in this case that

															"there is no reason to suppose that the definition of a medical
term of art should coincide with the parameters of a constitutional
standard."

															551 F. Supp. at 260 (quoted at 717 F.2d at 901); accord,
State v. Overstreet, 551 S.W.2d at 628. This does not mean
that the application of medical concepts in such cases is to be
ignored. However, no specific medical categorization can control
the multifaceted legal inquiry that the court must undertake.

															[ Footnote 9 ]

															Somewhat different issues would be raised if the use of a
general anesthetic became necessary because of the patient's
refusal to cooperate. Cf. State v. Lawson, supra. [ Footnote 10 ]

															There are also some questions concerning the probative value of
the bullet, even if it could be retrieved. The evidentiary value of
the bullet depends on a comparison between markings, if any, on the
bullet in respondent's shoulder and markings, if any, found on a
test bullet that the police could fire from Watkinson's gun.
However, the record supports some doubt whether this kind of
comparison is possible. This is because the bullet's markings may
have been corroded in the time that the bullet has been in
respondent's shoulder, thus making it useless for comparison
purposes. See 717 F.2d at 901, n. 15. In addition,
respondent argues that any given gun may be incapable of firing
bullets that have a consistent set of markings. See Joling, An Overview of Firearms Identification Evidence for
Attorneys I: Salient Features of Firearms Evidence, 26 J.Forensic
Sci. 153, 154 (1981). The record is devoid of any evidence that the
police have attempted to test-fire Watkinson's gun, and there thus
remains the additional possibility that a comparison of bullets is
impossible because Watkinson's gun does not consistently fire
bullets with the same markings. However, because the courts below
made no findings on this point, we hesitate to give it significant
weight in our analysis.

															CHIEF JUSTICE BURGER, concurring.

															I join because I read the Court's opinion as not preventing
detention of an individual if there are reasonable grounds to
believe that natural bodily functions will disclose the presence of
contraband materials secreted internally.