TexasRifleman
Moderator Emeritus
Wouldn't that be like testifying against yourself?
I agree this will likely to go the Texas Supreme Court.
Weird.
Police want bullet from man's head
- Thread starter Jacobus Rex
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Wouldn't that be like testifying against yourself?
I agree this will likely to go the Texas Supreme Court.
Weird.
romma
Member
get arrested for a crime, whether or not you did it, go to county lock up or whatever non-sentenced facility your State sends you to, and get a cavity search... It happens every day in our society. I realize I am not comparing apples to apples here, but hopefully you get the point... 
Car Knocker
Member
Depends on whether it stays in his head or not.
This isn't as unusual as it sounds. The basic premise of ordering a person to undergo a medical procedure without their consent under the provisions of a search warrant is nothing new. The most common example is when police use a search warrant to draw blood from a suspected drunk driver to check his blood alcohol level. The person is *not* able to use his constitutional right against self incrimination to prevent this. It's not a constitutional issue, in that regard at least, at all.
Now, even though the basic idea that it's allowable to obtain a search warrant to perform a medical procedure against the person's consent is established, there is obviously a difference between a blood draw and a surgical procedure. The court will have to look at the extent and risk of the procedure and balance that against the state's need for the evidence. How involved is the procedure? Is this just something in the skull or is the brain involved? What is the medical risk? How relevent is the evidence? The details will determine if the medical procedure is justified *in this case*, but the general legal concept is long established.
The tricky part might be finding a Doctor willing to do the procedure, if it is indeed risky and not "more or less" routine.
Now, even though the basic idea that it's allowable to obtain a search warrant to perform a medical procedure against the person's consent is established, there is obviously a difference between a blood draw and a surgical procedure. The court will have to look at the extent and risk of the procedure and balance that against the state's need for the evidence. How involved is the procedure? Is this just something in the skull or is the brain involved? What is the medical risk? How relevent is the evidence? The details will determine if the medical procedure is justified *in this case*, but the general legal concept is long established.
The tricky part might be finding a Doctor willing to do the procedure, if it is indeed risky and not "more or less" routine.
ribbonstone
Member
Depends.
Have had patients with WWII /Korean War/Vietnam War bullets still stuck in them with no noticable ill effects (although not in the head).
IF NOTHING else, we should be able to control invasion of our body....losing that is a BIG step in the wrong direction; even if this guy is guilty, better he goes free.
Have had patients with WWII /Korean War/Vietnam War bullets still stuck in them with no noticable ill effects (although not in the head).
IF NOTHING else, we should be able to control invasion of our body....losing that is a BIG step in the wrong direction; even if this guy is guilty, better he goes free.
Will they need general anesthetic, or would they just use local again? It looks like the surgeon wanted tools, not anesthetic. I'd not have bothered with any of that. Say for you health, the jail will pay for the removal. Don't even hint at using it for evidence until you have it out. He wanted it out earlier, if they had played on that, they probably wouldn't be messing with this now.
MikeB
Member
Apples/Oranges. The states got around that by claiming that "driving" was a privilige and not a right. In every state I have ever had a Driver's License in, when you sign for the license you are agreeing to be searched that way under suspicion of DWI/DUI. Personally I think it's a bunch of legal mumbo jumbo and still unconstitutional, but the courts don't agree with me. I can imagine what Washington/Jefferson/Franklin would have said about a license to "drive" their horses on a public road.
GhostRider66
Member
I wonder how likely it will be if this is denied, that it will be the basis for someone else's defense down the road. Medical examiner\doctor\police did not have a search warrant to retrieve said slug from said victim (living or not) so the slug (and accompanying data) cannot be used as evidence. Weird how precedents get set these days.
Skywarp
member
We've already seen how far some agencies are willing to go (see APD) to get warrants. He doesn't stand a chance.
.38 Special
Member
- Joined
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Well, let me be the first to thank Odd Job for presenting that rarest of the rare: a thoughtful and fact-filled post by someone who knows what he's talking about.
I'd also like to point out how fast it got ignored. It seems that facts and expertise have a ruinous effect on the average internet conversation!
I'd also like to point out how fast it got ignored. It seems that facts and expertise have a ruinous effect on the average internet conversation!
p35
Member
Self incrimination only applies to making someone say something. I see this as an unreasonable search issue. I was going to say that I can't believe they would do this without even telling his lawyer, but nothing that happens in the Texas criminal injustice system surprises me.
Jim March
Member
Same as an interview. They just want a piece of his mind.
Ahem. Sorry 'bout that.
Ahem. Sorry 'bout that.
Warren
Member
The absolute worst part of this is that it will be used as the basis for an extremely crappy "Law & Order: CSI: Boise" episode.
It will be so bad that the fabric of reality will split apart and all of us will be sucked into a parallel universe where cats drive cars and Ken Doll has a package.
It will be so bad that the fabric of reality will split apart and all of us will be sucked into a parallel universe where cats drive cars and Ken Doll has a package.
kengrubb
Member
Ain't gonna happen. SCOTUS has already ruled on this one. 9 to 0 decision.
Winston v. Lee, 470 U.S. 753 (1985)
http://laws.findlaw.com/us/470/753.html
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.
Winston v. Lee, 470 U.S. 753 (1985)
http://laws.findlaw.com/us/470/753.html
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.
No, it's not apples/oranges. You *can* still refuse to be get a blood draw or other test for DUI/DWI. You'll get your license suspended, but you have to right to voluntarily decline to be searched in that case. There is no criminal penalty for refusing to search in that way. You just have to decide if you want to risk the blood draw, and what the results will say, and balance that against the automatic license suspension.
Now, they can still try to get a search warrant *after* you've refused the "voluntary" search. At that point though, the whole "you can be searched because you agreed to that when you accepted the driver's license" thing is no longer applicable.
The only time you *can't* decline the blood draw/search is when they have a search warrant for your blood. In that case your refusal is irrelevent. They are going to do the blood draw and conduct the search.
however, is when they get a search warrant to draw your blood.
mindwip, your 5A "witness against himself" idea is a loser in court. The Supreme Court has repeatedly ruled that the 5A protection is for testimony, not for physical evidence that can be obtained from the body of a suspect. That is why cops can take fingerprints, and photos of a suspect. It is why a Grand Jury can issue a forthwith subpoena to allow cops to collect things like buccal swabs, and hair samples. It is why a magistrate can issue a warrant to obtain blood and urine samples.
The government can't compel a person to testify against themselves, but the government can obtain evidence from the body of a person.
The government can't compel a person to testify against themselves, but the government can obtain evidence from the body of a person.
Little dirtbag
Rights or not, this is a self professed gangbanger. I'll take the side of his rights on this one. It could be an opportunity for him to change his ways and get out of a lifestyle that is obviously going to get him killed if he keeps it up.
Let's just hope his next victim gets more shots off or better shot placement simply to avoid this fiasco in the future. Because I have to agree, once the bullet leaves the firearm, it then belongs to the recipient to do with as they see fit.
If it is indeed lodged in his forehead, maybe he'll be reminded of it for the rest of his days everytime he looks in the mirror. But then again, it is a hard headed gangbanger punk. Emphasis on hard head....
Rights or not, this is a self professed gangbanger. I'll take the side of his rights on this one. It could be an opportunity for him to change his ways and get out of a lifestyle that is obviously going to get him killed if he keeps it up.
Let's just hope his next victim gets more shots off or better shot placement simply to avoid this fiasco in the future. Because I have to agree, once the bullet leaves the firearm, it then belongs to the recipient to do with as they see fit.
If it is indeed lodged in his forehead, maybe he'll be reminded of it for the rest of his days everytime he looks in the mirror. But then again, it is a hard headed gangbanger punk. Emphasis on hard head....
Not quite. Apparently forcing him to undergo general anesthesia is unreasonable. I'd agree, hearing what people in the know say about the risks it involves. However, local anesthetic seems to be different. If the cops can prove that you don't need general, I'd say they could win. This will be interesting to follow. Perhaps something from the precedent here would apply to having chips installed?
MikeB
Member
Not true; there is a criminal penalty. If you refuse, at least in every state I've had a drivers license you are still convicted of a DUI. You don't just lose your license, you can be subject to fines/jail/etc.
Erebus
Member
The issue to me appears to be the level of risk to the well being of the subject. If there is risk of serious injury or death fromt eh procedure forcing them to undergo it is unreasonable. When I was 14 I went under general for the first time and that is when they discovered I was allergic and my heart stopped on them twice. I would fight tooth anrd nail before going under a general again. especially mow that I am no longer 14 and the prospects wouldn't be as good.
I don't see it as a self-incrimination issue as much as a secure in one's person issue. By forcing someone to undergo a risky unnecessary medical procedure to me is a direct violation of the 5th.
If it gets removed and the method of retrieval is determined to violate the 5th than this kid will likely walk and get his bullet removed on the tax payers' dime. From what I see in the previous SCOTUS case posted above this would be a violation of the 5th and the evidence would be determined inadmissable. Could make it all the way to an appeal before it gets to the SCOTUS though.
I don't see it as a self-incrimination issue as much as a secure in one's person issue. By forcing someone to undergo a risky unnecessary medical procedure to me is a direct violation of the 5th.
If it gets removed and the method of retrieval is determined to violate the 5th than this kid will likely walk and get his bullet removed on the tax payers' dime. From what I see in the previous SCOTUS case posted above this would be a violation of the 5th and the evidence would be determined inadmissable. Could make it all the way to an appeal before it gets to the SCOTUS though.
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