In Re: Sherlyn Ferdinand, applying for Writ of Certiorari and/or Review and Stay Order to the Criminal District Court, Parish of Orleans, Number 165-812, Fourth Circuit Court of Appeal, Number K-4619.

Granted. The trial court order is reversed and vacated because the state has made no showing to' justify such an unusual procedure.

concurring with reasons.

Generally, the state may not search or seize a person’s body without warrant issued upon probable cause supported by oath or affirmation in the form of an affidavit. There is an exception to the warrant requirement for a search of the person of an accused when legally arrested to discover and seize the fruits or evidence of crime not below the body surface. State v. Fontenot, 383 So.2d 365 (La. 1980). Also, the defendant may be required to exhibit portions of his body for evidentiary purposes during a trial. The present case, in which the accused was not under arrest or in custody, but was hailed before the court by instanter subpoena and ordered to submit to a body search upon the oral motion of the assistant district attorney not under oath or in the form of affidavit, does not fall within any of the known exceptions to the warrant requirement. Accordingly, the order of the district court that the defendant must submit to a body search should be reversed and set aside.