Adams v. State

299 N.E.2d 834, 260 Ind. 663, 1973 Ind. LEXIS 586

Opinions

Arterburn, C.J.

Footnotes

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The Appellant, Harry Adams, was charged by indictment in two counts with the crimes of premeditated murder and felony murder. After trial by jury, he was found guilty and sentenced to life imprisonment at the Indiana State Prison.

The facts briefly are that on June 13, 1970, a supermarket in Indianapolis was robbed at closing time by three armed men wearing masks and hats. Police officers were summoned to the scene following an alarm, and when the suspects came out of the store, a gun fight resulted. During the course of this action Deputy Summers suffered bullet wounds, but was able to kill one of the robbers. Lieutenant Jimmie Wingate was fatally wounded by a bullet fired from the gun of one of the robbers. Two of the suspects were successful in making their escape. Wingate had fired three bullets, but a subsequent investigation could account for only two of them. Several weeks later, Adams, after having been placed under surveillance, was arrested on a charge of disorderly conduct. He was taken to police headquarters, where, during a preliminary search, police officers observed two bullet wounds on his hips and buttocks. A medical examination by way of X-ray showed metallic fragments to be present in the flesh. A probable cause affidavit was then filed for the purpose of obtaining a search warrant to retrieve the metal fragments from his body. The affidavit contained a statement that a reliable confidential informer had told the affiant police officer that Adams was one of the robbers who had been shot and that he had two bullets holes in him. The affidavit did not allege how the informer came to know this information, but it did attest to the informer’s reliability. Other facts were alleged with reference to the robbery and the shooting, and the reputation of the Appellant as an armed robber. The affidavit also stated that the bullet fragments could be removed at the hospital through a surgical procedure performed by a licensed medical doctor using a local anesthetic. The court accordingly issued a search warrant authorizing the described medical procedure.

The Appellant raises several questions concerning the legality of his original arrest and detention, and the sufficiency of the probable cause affidavit to authorize the search. We deem it unnecessary to finally decide those issues since we are of the opinion that the only issue necessary to consider on the record before us is the reasonableness of a court-ordered surgical operation on the body of a suspect in order to secure evidence to establish his guilt or innocence.

The Fourth Amendment to the United States Constitution which is made applicable to the states by reason of the Fourteenth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and hereby to brutalize the temper of society.”

Article 1, Section 11 of the Constitution of the State of Indiana makes almost identical provision for the maintenance of this right. We think it clear that these provisions apply to an invasion of the magnitude of that occurring in this case, and we are amply supported in that view by the holdings of the United States Supreme Court. In Rochin v. California (1952), 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183, the Supreme Court unanimously* held that the forced stomach pumping of a suspect in order to obtain evidence of possession of narcotics was per se unreasonable in violation of the due process clause of the Fourteenth Amendment. The opinion by Justice Frankfurter analogized the offensive law enforcement conduct in question to the obtaining of a coerced confession and stated:

“Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and hereby to brutalize the temper of society.”

Id., at 173-74, 72 S. Ct. at 210, 96 L. Ed. at 191. The Court was careful to leave open to the states the power to fix the parameters of permissible police investigative conduct. Thus, in our view, we are free, within the limits of the applicable constitutional provisions, to determine the permissible scope of searches and seizures of the kind here before us. Rochin, supra, will be our guide.

The United States Supreme Court has recently had occasion to consider the scope of permissible searches and seizures of the person of citizens suspected of crime. Cupp, Penitentiary Superintendent v. Murphy (1973), 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900, (Slip Opinion filed May 29, 1973); U.S. v. Mara (1973), 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99; U.S. v. Dionisio (1973), 410 US. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67; Davis v. Mississippi (1969), 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676; Schmerber v. California (1966), 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908. It should be noted that in each of the above cited cases, the intrusion upon the body of the suspect was extremely limited. In Cupp, supra, over the suspect’s protest and without a warrant, police, in the course of station house questioning in connection with a murder, took samples from under the suspect’s fingernails and discovered evidence later used to convict him. The suspect had come to the station voluntarily since he had not yet been arrested, but he was detained and there was probable cause to believe he had committed the murder. The Court held that in view of the detention upon probable cause, “the very limited intrusion undertaken to preserve highly evanescent evidence was not violative of the Fourth and Fourteenth Amendments.” In U.S. v. Mara, supra, the Court held that the forced production of handwriting exemplars did not violate the Fourth Amendment since the directive forced the disclosure only of a “physical characteristic constantly open to the public.” In U.S. v. Dionisio, supra, a majority of the Court held that compelling a Grand Jury witness to furnish a voice exemplar did not violate the Fourth Amendment, since a subpoena to appear before a Grand Jury was not a “seizure” in the Fourth Amendment sense, and the disclosure was only of a “physical characteristic constantly open to the public” and thus was not subject to Fourth Amendment protection. In Davis v. Mississippi, supra, the Court held that since the accused’s detention was unlawful, his fingerprints were obtained in violation of the Fourth and Fourteenth Amendments. In Schmerber v. California, supra, the Court, in a 5-4 decision held that under the facts obtaining, the defendant’s constitutional rights had not been violated by the compulsory blood test and the admission of the results thereof. There, after the defendant’s arrest while he was at a hospital receiving treatment for injuries suffered in an automobile accident, a blood sample was withdrawn by a physician at the direction of a police officer, acting without a search warrant. This was done despite the defendant’s refusal to consent to the blood test. The report of the results of the test, indicating intoxication, was introduced into evidence over the objections of the defendant. The majority states:

“. . . with respect to searches involving intrusions beyond the body’s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.”

Schmerber v. California (1966), 384 U.S. 757, 769-70, 86 S. Ct. 1826, 1835, 16 L. Ed. 2d 908, 919. The Court carefully limited its holding by stating:

“We thus concede that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. 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.” (emphasis added) Id. at 772, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920.

Thus, it is evident that the Supreme Court has been faced with very limited intrusions into or upon the body of persons suspected of crime. In the case at bar, however, we are confronted with an intrusion of the most serious magnitude. Here an actual surgical operation was performed on the Appellant to remove a bullet from inside his body. We do not sanction a surgical operation forced on a defendant for this purpose. We therefore hold that the Fourth Amendment prohibits the type of intrusion into the body of the suspect as occurred in this case.

Prior to Schmerber, supra, the Supreme Court of this state held that a blood sample could not be drawn from a defendant charged with involuntary manslaughter, and used to prove intoxication. That case, however, involved the violation of the physician-patient privilege, and the sample was taken while the patient was unconscious. Alder v. State (1958), 239 Ind. 68, 154 N. E. 2d 716. Later, in Green v. State (1971), 257 Ind. 244, 274 N. E. 2d 267, a bullet was handed to a police officer by the attending physician who took the same from defendant’s body. In that case, the physician did not testify and the privilege was not violated when a third party was present and observed the extraction of the bullet. It was a matter open to the public generally at the time and the defendant was conscious and did not object to the delivery of the bullet. We held that the evidence observed by the police officer, who had to be present for security reasons, was properly admissible. That case may be easily distinguished from the case at bar, since here the surgeon, Dr. Rice, was asked to identify the bullet he had removed. In Alldredge v. State (1959), 239 Ind. 256, 156 N. E. 2d 888, we concerned ourselves with a drunkometer test and evidence of defendant’s refusal to take same. We stated that the evidence is properly admissible in such a case if the drunkometer test was either voluntarily consented to, or there was no invasion of the defendant’s body in performing such a test. Evidence of the refusal to take the test was admissible unless the defendant could show he had objected on the ground of the physical invasion.

We believe that Indiana is in line with the opinions of the United States Supreme Court on this subject. The constitutional provision against self-incrimination is primarily a freedom from testimonial compulsion. Witnesses may testify as to marks and scars on the body of the defendant, his fingerprints, and other like matters, but, in our opinion, an operation performed upon a defendant to secure evidence comes within the constitutional prohibition of an unreasonable search. Rochin v. California (1952), 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183. Judge Treanor covers the matter expertly in Ross v. State (1932), 204 Ind. 281, 182 N. E. 865.

Thus, we hold that it was reversible error for the trial court to admit the bullet taken from the Appellant’s body and to allow the doctor to testify as to the procedure employed or results of any tests of the evidence so obtained.

For the reasons stated, the judgment of the trial court is reversed with directions to grant a new trial.

Hunter, J. concurs; DeBruler, J., concurs with opinion; Givan, J., dissents with opinion in which Prentice, J., concurs; Prentice, J. dissents with opinion in which Givan, J. concurs.

This case was distributed to the writer of this opinion on June 27, 1973.

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Justices Black and Douglas relied on the Fifth Amendment in holding the evidence inadmissible.