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248. Surgical Intrusions And Blood Samples

A surgical intrusion into a person's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if probable cause exists. This determination must be made on a case-by-case basis in which the individual's privacy and health interests are weighed against society's interest in obtaining evidence to fairly and accurately determine guilt or innocence. See Winston v. Lee, 470 U.S. 753 (1985) (refusing surgery to remove bullet for evidence); Schmerber v. California, supra (routine blood test permissible for drunk driving suspects). The minor intrusion upon the person involved in taking fingernail scrapings is a "search," and requires compliance with the Fourth Amendment. Cupp v. Murphy, 412 U.S. 291 (1973).

Updated September 19, 2018