AMAZING STORIES: Surgery Barred for Bullet Sought as Evidence - JuniperCivic.com
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Originally published in the March 2012 Juniper Berry Magazine

AMAZING STORIES: Surgery Barred for Bullet Sought as Evidence

December 13, 1974 The New York Times

A State Supreme Court Justice ruled yesterday that a bullet could not be removed from the chest of a suspect in the murder of a police lieutenant because the surgery would constitute an unreasonable search and seizure and possibly endanger the suspect's life.

The bullet is lodged in the left chest of John Smith, a 26-year-old Brooklyn man being held in detention on a sentence of up to 20 years following his conviction last month on a robbery charge.

The police believe that the bullet came from the revolver of Lieut. Henry O. Schmiemann, of Middle Village, Queens, who fired one shot before he died of gunshot wounds in the head after he was apparently held up while on his way to work last June 20.

The decision was handed down by Justice Thomas S. Agresta, who earlier had allowed a police surgeon to examine the suspect. In a seven-page opinion, Justice Agresta held that surgical removal of the bullet would constitute a major intrusion into the body of the respondent that would involve trauma and pain and a possible risk of life.

The police surgeon had reported that removal would require an incision of at least six inches. Noting this report his ruling, Justice Agresta said: the court finds that the use of the surgical knife to the extent indicated in this case is offensive to the sense of fair play and decency and the American way of life and is therefore prohibited by the due process clause and the Fourth Amendment of the constitution against unreasonable searches and seizures.

The Queens District Attorney, Nicholas Ferraro, said he was reviewing the decision before deciding whether to appeal.

Edwin Draher, deputy chief of detectives, said after announcement of the ruling that the case doesn't rest on the bullet alone ‒ we have other evidence in the case.

Mr. Ferraro said a grand jury proceeding in the case would continue.