CASE COMMENT: CRIMINAL LAW -- LEE V. WINSTON: COURT-ORDERED SURGERY AND THE FOURTH AMENDMENT -- A NEW ANALYSIS OF REASONABLENESS? Skip over navigation
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Copyright (c) 1984 Notre Dame Law Review
University of Notre Dame

CASE COMMENT: CRIMINAL LAW -- LEE V. WINSTON: COURT-ORDERED SURGERY AND THE FOURTH AMENDMENT -- A NEW ANALYSIS OF REASONABLENESS?

1984

60 Notre Dame L. Rev. 149

Author

Blake A. Bailey and Elaine M. Martin and Jeffrey M. Thompson

Excerpt

In Lee v. Winston, 1 the United States Court of Appeals for the Fourth Circuit considered the circumstances under which evidence could be surgically removed from a criminal suspect without violating the suspect's rights under the fourth amendment. In Lee, the defendant was allegedly shot while attempting to rob a market. 2 The court of appeals affirmed the denial of the state's motion to compel the surgical removal of the bullet from Lee's chest. 3 Accordingly, the court enjoined Virginia from compelling surgery because such an act would violate Lee's fourth amendment right against unreasonable searches. 4 In reaching this decision, the Lee court modified the standard previously used in examining the reasonableness of court-ordered surgery for removing evidence.

This comment will describe the Lee court's constitutional analysis of court-ordered surgery and examine the differences between this analysis and that used by previous courts. Part I will describe Supreme Court decisions on bodily intrusion cases, focusing on Schmerber v. California. Part II will examine how state and lower federal courts have applied Schmerber to surgical searches. Part III will recount the facts of Lee v. Winston and part IV will analyze the court of appeal's decision in Lee. Finally, part V will discuss the potential impact of Lee v. Winston.

I. Bodily Intrusion Cases in the Supreme Court: Rochin, Breithaupt and Schmerber

The United States Supreme Court has considered searches involving the removal of evidence from within the human body on only three occasions. In the first of these ...
 
 
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