Andrews v. Love10/27/1988
On October 20, 1988, the above petitioner filed his petition in this Court seeking issuance of the writ of prohibition against the Honorable Respondent to prohibit the enforcement of a certain order to remove a bullet from petitioner. The order was issued in McClain County District Court Case No. CRF-88-56. The application and petition were set for oral argument to be had in this Court at 10:00 a.m. on October 26. This Court assumed jurisdiction. The Court had before it the record of the preliminary examination, and a transcript of the adversary hearing held by the district court on August 24, 1988, after which the district court order was entered on September 8, 1988, granting the State's Motion for surgical removal of a bullet from petitioner.
NOW THEREFORE, after considering the application and petition filed herein along with the briefs submitted by both sides, the transcript of the preliminary examination and the transcript of the adversary hearing, and after weighing the factors outlined in United States v. Crowder, 543 F.2d 312 (D.C. Cir. 1977), and Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), and being sufficiently advised in the premises, this Court finds that the writ of prohibition should not issue.
IT IS THEREFORE THE ORDER OF THIS Court, that the writ shall not be granted, and the State may, within the guidelines set forth in the McClain County District Court Order of September 8, 1988, pursue the surgical removal of the bullet from petitioner. In accordance with the provisions of said order, additional x-rays shall be taken, and in the event the surgeon finds that the bullet has moved significantly from its previous location, or that such surgery will impose a significant risk to the health of the petitioner, then the said surgery shall be delayed until the matter can be re-presented to the McClain County District Court at a proper hearing.
IT IS THE FURTHER ORDER OF THIS COURT, that further proceedings in McClain County Case No. CRF-88-56, shall be STAYED in order to permit petitioner to present this matter for consideration in the Federal Courts.
BUSSEY, J., specially concurs.
PARKS, J., dissents.
BUSSEY, Judge, specially concurring:
It is well settled that the Fourth Amendment protects an individual's reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Assuredly, I do not suggest that a compelled surgical intrusion into an individual's body for evidence does not implicate expectations of privacy. However, 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. Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). When this standard is applied to the facts of this case, I believe the removal of the bullet is reasonable and proper, and the district court's order should be sustained.
The State's case is admittedly circumstantial. On March 3, 1988, Hatten Lee Ledford was fatally wounded in his home. There were no eyewitnesses. Mrs. J.R. Dial has testified that she talked to Ledford as he lay on the floor dying, and he claimed that John D. Miser, a neighbor, had shot him. Ledford also stated to Mrs. Dial that he had returned fire against his attacker. A .22 rifle with spent shell casings was found lying next to Ledford's body.
Within one hour of the shooting, petitioner was found approximately a quarter of a mile from Ledford's house. Petitioner
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