¶1On October 20,1988, the above petitioner filed his pefe ion 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.
¶2*715NOW 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.
¶3IT 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.
¶4IT 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.
¶5dissenting:
¶6I vigorously disagree with the majority’s denial of petitioner’s application for a writ of prohibition to prevent enforcement of the trial court’s order compelling surgical removal of a bullet from petitioner.
¶7The United States Supreme Court, in holding that a State may compel a defendant suspected of drunk driving to submit to a blood test, without violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures, warned:
[W]e 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 circumstances in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
¶8Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966). Subsequently, relying heavily upon Schmerber, the Court held that compelling a defendant suspected of attempting to commit an armed robbery to undergo surgical removal of a bullet located under his collarbone was “unreasonable” under the Fourth Amendment, and thus prohibited. Winston v. Lee, 470 U.S. 753, 755, 105 S.Ct. 1611, 1614, 84 L.Ed.2d 662 (1985). “A compelled surgical intrusion into an individual’s body for evidence ... implicates expectations of privacy and security of such magnitude that the intrusion may be ‘unreasonable’ even if likely to produce evidence of a crime.” Id. at 759, 105 S.Ct. at 1616. The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State, values which are basic to a free society. Id. at 760, 105 S.Ct. at 1616 (citations omitted). Admittedly, “[t]he reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interest in privacy and security are weighed against society’s interests in conducting the procedure.” Id. at 760, 105 S.Ct. at 1616.
¶9In Winston, the Court balanced the following factors: (1) the existence of probable cause; (2) the extent of threat to the safety or health of the individual; (3) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity; and (4) the community’s interest in fairly and accurately determining guilt or innocence. Id. at 760-62, 105 S.Ct. 1616-18. When the State seeks to justify an intrusion into an individual’s body, it must “demonstrate a compelling need.” Id. at 766, 105 S.Ct. at 1620. Because such intrusion is “upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search ‘reasonable.’ ” Id. at 767, 105 S.Ct. at 1620.
¶10Assuming arguendo the State had probable cause to conduct the search, I believe the State has failed to substantially justify the search on the remaining three factors. The State presented the medical testimony of Dr. Edward Lee, M.D., and the testimony of OSBI Agent Allen Selman to meet its burden of justifying the requested compelled surgery. First, with regard to the threat to petitioner’s health, Dr. Lee testified that because the bullet in petitioner’s upper arm was imbedded one to one and a half centimeters in the subcutaneous tissue, within half a centimeter of the brachial artery, he would want a vascular surgeon, a specialist, to conduct the surgery. At the evidentiary hearing, Dr. Lee was unable to locate the bullet by exterior physical examination. Dr. Lee also conceded that surgical removal of the bullet might cause nerve damage to the hand. Dr. Lee opined a specialist could remove the bullet under local anesthetic, that nerve damage was not a “major consideration,” and that such surgery was “minor.” “The question whether the surgery is to be characterized in medical terms as ‘major’ or ‘minor’ is not controlling.” Winston, 470 U.S. at 764 n. 8, 105 S.Ct. at 1618 n. 8. However, it is questionable whether Dr. Lee was in a *718position to properly assess the risks of the operation since he would not do the surgery himself, but recommended a specialist. When confronted with this question, Dr. Lee admitted “I cannot testify for someone else’s opinion.” (Evid.Hg.Tr. 26)
¶11Clearly, considering the depth of the wound, the extent of cutting and probing required, and the close proximity to the brachial artery, the requested surgery would constitute a substantial intrusion upon petitioner’s privacy interests and bodily integrity. Turning to whether the State has demonstrated a compelling need for the evidence, I would point out that during oral argument before this Court Assistant District Attorney Richard Sitzman, speaking on behalf of District Attorney Tully McCoy, candidly stated the case would not be dismissed if they were not allowed to obtain the bullet, thus indicating their belief that their case against petitioner was strong enough to survive a motion for a directed verdict at trial. Mr. Sitzman further stated the State’s need for the bullet was couched in terms of “strengthening” his case against petitioner, and not making or breaking it. Certainly, the foregoing makes respondents’ “assertions of a compelling need for the bullet ... hardly persuasive.” Winston, 470 U.S. at 765, 105 S.Ct. at 1619. Further, the probative value of the bullet is questionable. When asked by the trial judge, “[d]o .22 caliber projectiles ordinarily lend very well to ballistic examinations?,” OSBI Agent Allen Selman testified, “I’m not aware. I’m not a firearms examiner myself.” (Evid.Hg.Tr. 52) The State’s evidence as to the possibilities of conducting a ballistics examination was based purely on the hearsay testimony of Agent Selman, who was allowed to testify that an OSBI Firearms Examiner had test fired the victim’s .22 rifle and determined that bullets fired from it could be identifiable. Moreover, Agent Selman testified he was aware of a State witness’ testimony at preliminary hearing that the .22 caliber cartridges found at the scene of the crime probably came from three separate rifles. (Evid.Hg.Tr. 51) Yet, only one rifle was tested for purposes of ballistics comparison.
¶12In conclusion, in weighing the various factors enunciated in Winston, on this record, the State has failed to demonstrate a compelling need for the bullet, which may or may not be “useful” in its prosecution of petitioner. I believe that in these circumstances the compelled surgery would constitute an unreasonable search and seizure under the Fourth Amendment. Winston, 470 U.S. at 766-67, 105 S.Ct. 1620. Accordingly, I dissent.