In re RH

• Decision Date: 01 September 2000
• Docket Number: No. 99-353.,99-353.
• Citation: 762 A.2d 1239
• Court: Vermont Supreme Court
• Parties: In re NONTESTIMONIAL IDENTIFICATION ORDER DIRECTED TO R.H.

762 A.2d 1239

In re NONTESTIMONIAL IDENTIFICATION ORDER DIRECTED TO R.H.

No. 99-353.

Supreme Court of Vermont.

September 1, 2000.

Motions to Stay Mandate Denied September 25, 2000 and October 4, 2000.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Defendant R.H. appeals from an order of the Lamoille District Court holding him in civil contempt for refusing to comply with a nontestimonial identification order that required him to submit to the collection of cheek epithelial cells (saliva) by swabbing the interior of his mouth. On appeal, defendant argues that (1) the affidavit filed in support of the nontestimonial identification order does not show reasonable grounds to suspect that he committed the crime, and (2) Article 11 of the Vermont Constitution and the Fourth Amendment of the United States Constitution require probable cause before a court may authorize collection of saliva by swabbing the inside of the mouth. We affirm.

Vermont Rule of Criminal Procedure 41.1 provides the authority for nontestimonial identification orders (NTOs). Rule 41.1 provides that an NTO must be issued by a judicial officer and be based on a sworn affidavit establishing:

(1) that there is probable cause to believe that an offense has been committed; (2) that there are reasonable grounds, that need not amount to probable cause to arrest, to suspect that the person named or described in the affidavit committed the offense; and (3) that the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.

V.R.Cr.P. 41.1(c). The order may be issued prior to the arrest of a suspect, after arrest and prior to trial, or during trial if special circumstances warrant it. See id. 41.1(b). The order may require the suspect to appear at a specified time and place for identification by, among other things, fingerprints, blood specimens, urine specimens, saliva samples, hair samples, handwriting examples, or voice samples. See id. 41.1(d), (m)(3). If there is a danger that the suspect may flee, or alter or destroy the evidence sought, the NTO may provide that a law enforcement officer detain the suspect in order to bring the suspect before the judicial officer for expeditious identification procedures. See id. 41.1(d). Rule 41.1 "is intended to provide a procedure equivalent to a search warrant for obtaining nontestimonial identification evidence." Reporter's Notes, V.R.Cr.P. 41.1. Rule 41.1, however, authorizes the detention of suspects for the identification procedure on less than probable cause, requiring only "reasonable grounds" to suspect the subject committed the identified crime. V.R.Cr.P. 41.1.

The NTO in dispute was issued in the course of the investigation of a notorious homicide committed some nine years ago. Patricia Scoville, a 28-year-old woman, was reported missing on October 23, 1991, after she failed to return from a bicycle ride. Her bicycle was found near Moss Glen Falls, a rural, wooded area about four miles outside of Stowe and just off Route 100. After a six-day search, her body was discovered in a shallow grave, hidden under layers of leaves and pine boughs. She had suffered a deep laceration on the back of her head, and the cause of death was found to have been asphyxia. There were indications of sexual assault, and seminal fluid containing DNA was found on the body.

On June 22, 1999, police obtained an NTO requiring defendant to provide a sample of his saliva to compare with the DNA found at the crime scene. The affidavit supporting the request for the NTO indicates that defendant has a history of sexual assault and violence, and that he lived near—and was familiar with—the Moss Glen Falls area at the time of the homicide. It contains the following specific information:

1. Defendant was committed to the Vermont State Hospital in 1972 for four years after assaulting and attempting to rape a female who was traveling alone. Defendant used a knife during this attack. He also attacked two other people while hospitalized.

2. Defendant was convicted of simple assault in 1977, after originally being charged with lewd and lascivious conduct. Further, he was convicted of lewd and lascivious conduct in 1981.¹ Both of these crimes are described in the affidavit as involving "assaults on female strangers."

3. On October 13, 1997, defendant was arraigned on charges of attempted kidnapping and attempted sexual assault, arising out of an incident in which he was in his car when he saw a woman walking alone. He ran up behind her with a belt in his hands, held over his head as if to strangle her. He struggled with the victim, but she eventually escaped.

4. Defendant lived for many years in the area where the Scoville homicide took place, and lived in that area at the time of the homicide. He lived with a girlfriend from the early 1980's until May 1991 in various towns around the area. In 1990 and early 1991, they lived together in Wolcott. During that time defendant was not employed but would leave the house for long periods during the day and drive around in his car.

5. On May 19, 1991, defendant's girlfriend obtained an abuse prevention order against him, removing him from their home. She claimed that they had a violent relationship: he struck her, threatened to cut off her head with a chain saw, and attempted to rape her. After he was removed from their home, defendant lived with acquaintances in Hyde Park. He had his own car and continued to spend his days driving around. On occasion he would visit relatives in Barre, traveling through Stowe on Route 100, past the area where the Scoville homicide occurred. Also during that time, defendant gave one of the acquaintances with whom he was living, a wrecker operator, detailed directions to a remote area off the Moss Glen Falls Road in Stowe, an area close to the where the Scoville body was recovered. Then, in the Fall of 1991, he was asked to move out of his acquaintances' residence because of an unprovoked attack on a mutual friend.

On the basis of these facts, the Lamoille District Court issued an NTO requiring defendant to give a sample of his saliva to compare his DNA to that found on the Scoville body. Defendant moved to quash the NTO, arguing that the affidavit failed to show reasonable suspicion that he murdered Patricia Scoville, and, in any event, that the applicable provisions of the federal and Vermont constitutions require that the prosecution show probable cause that he was responsible. The district court rejected the constitutional argument and held that the prosecution had shown reasonable suspicion that defendant killed Patricia Scoville based on his opportunity to commit the crime, his familiarity with the area, and his long history of sexual assault on women.

When defendant failed to appear as ordered pursuant to the NTO, the court held him in contempt. Defendant appeals from that contempt adjudication raising the same challenges as he raised in the district court.

There is no claim that the prosecution has not met the first and third of the three prongs of the NTO standard—there is probable cause that an offense has been committed, and the results of the NTO procedure will be of "material aid" in determining whether defendant committed the crime. Thus, the first question before us is whether the prosecution's showing meets the second prong of the NTO requirements: Are there reasonable grounds to suspect that defendant committed the offense?

This prong involves a familiar standard, essentially identical to that established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to determine whether police may stop a suspect for questioning. See Reporter's Notes, V.R.Cr.P. 41.1; State v. Cootz, 110 Idaho 807, 718 P.2d 1245, 1248 (1986) (similar Idaho statute authorizes "form of Terry stop"). We have applied this standard in numerous cases, and these cases help define both the standard and how it is applied. We begin with the teaching of Terry that reasonable suspicion must involve sufficient specific and articulable facts, which, together with the rational inferences therefrom, reasonably warrant the intrusion contemplated. See Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; State v. Lambert, 146 Vt. 142, 143, 499 A.2d 761, 762 (1985). This is to avoid intrusions based on "nothing more substantial than inarticulate hunches." Terry, 392 U.S. at 22, 88 S.Ct. 1868; see also State v. Taylor, 145 Vt. 437, 440-41, 491 A.2d 1034, 1036 (1985) (reasonable suspicion is more than an "inchoate and unparticularized suspicion or hunch"). The reasonable suspicion standard is less demanding than the probable cause standard, see State v. Lamb, 168 Vt. 194, 196, 720 A.2d 1101, 1102 (1998), and requires "`considerably less than a proof of wrongdoing by a preponderance of the evidence.'" See State v. Siergiey, 155 Vt. 78, 81, 582 A.2d 119, 121 (1990) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). The information supporting an NTO must be evaluated "in a common sense manner under the totality of the circumstances." State v. Towne, 158 Vt. 607, 618, 615 A.2d 484, 490 (1992). The officer can, as here, rely on the observations of others. See Lamb, 168 Vt. at 196,720 A.2d at 1102. Information about a suspect's behavior from a citizen who is not a paid informant and is unconnected to the police is presumed reliable. See State v. Welch, 162 Vt. 635, 636, 650 A.2d 516, 518 (1994) (mem.). The officer can rely in part on inferences based on general experience, see State v. Miller, 142 Vt. 49, 53, 451 A.2d 1115, 1117 (1982), and on past criminal behavior of a suspect. See Lamb, ...