ARTICLE: Fourth Amendment -- Reasonableness Of Surgical Intrusions: Winston v. Lee, 105 S. Ct. 1611 (1985) Skip over navigation
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Copyright (c) 1985 Northwestern School of Law
Journal of Criminal Law & Criminology

ARTICLE: Fourth Amendment -- Reasonableness Of Surgical Intrusions: Winston v. Lee, 105 S. Ct. 1611 (1985)

Winter, 1985

76 J. Crim. L. & Criminology 972





In Schmerber v. California, 1 the United States Supreme Court adopted a balancing test of "reasonableness" to determine whether under the fourth amendment 2 the state may intrude into the human body to recover evidence. While recognizing the individual's right under the fourth amendment to protection of personal privacy and bodily dignity against unwarranted intrusions by the state, 3 the Court offset this right against the state's interest in gathering evidence necessary to determine the accused's guilt or innocence. 4 Last term, in Winston v. Lee, 5 the Supreme Court employed the Schmerber framework in ruling that a state may not compel an armed robbery suspect to undergo surgery requiring a general anesthetic to remove an object thought to be a bullet lodged approximately one inch deep in the muscular tissue of his chest. 6

This Note examines the Winston opinion and concludes that the Court's decision was justified in light of the particular facts and circumstances of the case. This Note points out that the Court's decision to extend the Schmerber "reasonableness" framework to the context of the surgical removal of evidence will provide lower courts with the flexibility to make determinations on a case-by-case basis. This flexibilty, however, will be gained at the expense of consistency between lower courts' decisions. This Note concludes that this tradeoff is inherent in instances involving a "reasonableness" approach and that lower courts can capably balance the facts and circumstances of each case under the ...
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