State v. Towne

• Decision Date: 22 May 1992
• Docket Number: No. 89-298,89-298
• Citation: 615 A.2d 484,158 Vt. 607
• Parties: STATE of Vermont v. Edwin A. TOWNE.
• Court: Vermont Supreme Court

Page 484

615 A.2d 484

158 Vt. 607

STATE of Vermont v. Edwin A. TOWNE.

No. 89-298.

Supreme Court of Vermont.

May 22, 1992.

Motion for Reargument Denied

July 6, 1992.

William H. Sorrell, Chittenden County State's Atty., and Rosemary S. Hull, Deputy State's Atty., Burlington, and Gary Kessler, Supervising Appellate Prosecutor, and Pamela Hall Johnson, Appellate Prosecutor, Montpelier, for plaintiff-appellee.

E.M. Allen, Defender Gen., and William A. Nelson, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Defendant appeals from a conviction of first degree murder. He claims that (1) a search warrant issued for his residence was not supported by probable cause; (2) his refusal to comply with a nontestimonial identification order should have been suppressed because it violated V.R.Cr.P. 41.1, Article 11 of the Vermont Constitution, and the Fourth Amendment to the United States Constitution; (3) a statement he made to the police should have been suppressed because it was obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution; (4) his arrest was illegal; and (5) the information was deficient and improperly amended. We affirm.

At about 8:10 a.m. on September 10, 1986, Paulette Crickmore was last seen alive on the Jericho Road in Richmond, Vermont, on her way to Mt. Mansfield Union High School. By October, police investigations of her disappearance had focused on defendant, who lived in the area and was on parole after a conviction of sexual assault. On October 21, 1986, the police, in possession of a New Hampshire fugitive warrant and aware that defendant possessed a firearm in violation of federal law, arrested defendant and questioned him about his whereabouts at the time Crickmore disappeared. Defendant admitted that he was on the Jericho Road the morning of September 10 on his way to Eden, where he was constructing the foundation to his future home. The police learned through conversations with defendant's employer that defendant had acquired a number of cement blocks for his foundation on September 12, 1986.

The victim's body was recovered in November 1986 in a wooded area off the River Road in Duxbury, Vermont. Upon examining the remains, the police medical examiner concluded that she had been murdered by three gunshots to the head; the bullets used were recovered from the corpse along with a number of unidentified hairs. The position of the victim's clothes suggested she had been raped prior to the murder.

By mid-November, a Department of Public Safety firearms expert had concluded that the bullets recovered from the victim's body were fired from a .32 caliber Smith & Wesson long revolver. In early December, the police learned from defendant's girlfriend and her son that defendant had purchased a .32 caliber revolver in Rochester, Vermont. An examination of the records from the gun shop where the weapon was purchased revealed that the date of purchase was July 27, 1986. Defendant's employer informed the police that defendant sometimes fired live ammunition into the wall at his place of business. On December 5, two bullets were recovered from that wall, and an examination of the bullets by a firearms expert revealed that one of the bullets recovered was fired from the same gun that fired the bullets recovered from the victim's body.

On December 6, 1986, the police obtained a warrant to search the foundation of defendant's house with a metal detector. A prior search of the house by federal agents had yielded several firearms but not the .32 revolver. A gun, later determined to be the murder weapon, was recovered from one of the cement blocks comprising the foundation.

Defendant was charged on December 7, 1986. On December 18, a nontestimonial identification order was issued requiring defendant to appear at the St. Albans Correctional Center and submit samples of pubic and head hair. Defendant failed to comply even after the trial court ruled that his refusal would be sanctioned by allowing it to be introduced at trial as evidence of guilt. In September 1987, the police received an F.B.I. report indicating that no hair of value for comparison had been recovered from the victim's remains.

Defendant was tried and convicted in January 1989. This appeal followed.

I. The Search Warrant

Defendant contends that the murder weapon should have been suppressed because the search of his house was conducted pursuant to a warrant not supported by probable cause.

The evidence sought in the warrant application was the murder weapon and any items that could be identified as belonging to Paulette Crickmore. The place to be searched was defendant's house, particularly its foundation. Defendant admits that facts in the affidavit supporting the search warrant provided probable cause to believe he committed the crime, but, citing State v. Brown, 151 Vt. 533, 535 n. 2, 562 A.2d 1057, 1058-59 n. 2 (1989), he argues it was not "more likely than not" that the murder weapon would be found in the foundation of his house.

Preliminarily, the State argues that Brown's "more likely than not" standard for probable cause is erroneous and should be overruled. To the extent that Brown requires a rigid quantitative analysis for determining probable cause, we agree that it is not the correct standard and now overrule that portion of Brown. Defendant's chief argument--that in murder cases the most likely probability will always be that the murderer, once suspected, will dispose of the weapon--demonstrates the weakness of the Brown rule. Under Brown, whenever the evidence was most likely destroyed or disposed of, the police would not have probable cause to search for it anywhere.

The only support cited for Brown's more-likely-than-not standard is two ambiguous statements in Spinelli v. United States, 393 U.S. 410, 418, 419, 89 S.Ct. 584, 590, 590, 21 L.Ed.2d 637 (1969), one suggesting that probable cause requires information sufficient to "ripen into a judgment that a crime was probably being committed" and the other that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Brown, 151 Vt. at 535 n. 2, 562 at 1058-59 n. 2 (emphasis added). The reasoning of the Brown footnote appears to be that probable cause, probably, and probability all mean the same thing--that something will, more likely than not, occur. The historical and etymological evidence, however, does not support this conclusion.

During the eighteenth century when the warrant clause was written, "probable" meant "provable." See 12 Oxford English Dictionary 535 (2d ed. 1989) ("probable" originally meant "Capable of being proved; demonstrable, provable.... Such as to approve or commend itself to the mind; worthy of acceptance or belief; rarely in bad sense, plausible, specious, colourable"); A Model Code of Pre-Arraignment Procedure 292 (1975) (in earlier times, "probable" meant "capable of being proved or worthy of belief"). The concept "was not linked to more recent notions of probabilities measured mathematically." Model Code, supra, at 292-93; McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand.L.Rev. 1293, 1327 n. 192 (1982).

Conversely, as "probable" has, in modern times, come to take on mathematical connotations, "probable cause" has sometimes been replaced by "reasonable cause," thought to be a modern analogue more closely approximating the original meaning of probable cause, without any reference to probability. See Model Code, supra, at 499-501; see also Carroll v. United States, 267 U.S. 132, 155-56, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925) (equating probable cause with reasonableness); United States v. Melvin, 596 F.2d 492, 495 (1st Cir.1979) (equating "probable cause" with "reasonable grounds to believe" and rejecting more-likely-than-not standard).

Even assuming Spinelli does support a more-probable-than-not standard, that decision has limited precedential value. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Court rejected not only Spinelli 's approach to informant credibility, but also returned to its more traditional language on probable cause. The Gates Court reaffirmed that probable cause is a "fluid concept" that is "not readily, or even usefully, reduced to a neat set of legal rules." Id. at 232, 103 S.Ct. at 2329. It "requires only a probability or substantial chance of criminal activity." Id. at 244 n. 13, 103 S.Ct. at 2335 n. 13 (emphasis added). One commentator argues that with this language, the Gates Court "made it fairly clear ... that 'probable cause' is something less than 'more-probable-than-not' (although how much less is anything but clear)." Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L.Rev. 551, 588 (1984); see also Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (a plurality of the Court held that probable cause does not demand a showing that a belief be "more likely true than false").

State courts asked to adopt a more-likely-than-not standard have also uniformly declined to do so, opting for a more flexible approach. See, e.g., Edwards v. State, 300 Ark. 4, 9, 775 S.W.2d 900, 903 (1989) (interpreting state rules of criminal procedure as rejecting more-probable-than-not standard); People v. Hearty, 644 P.2d 302, 310 (Colo.1982) (en banc) (equating probable cause with "reasonable grounds" rather than mathematical probability); State v. Laws, 801 S.W.2d 68, 70 (Mo.1990) (en banc) (not necessary to establish probable cause by a preponderance of the evidence, only by a "fair probability"); State v. Sundberg, 235 Mont. 115, 120, 765 P.2d 736, 739-40 (1988) (noting that the United States Supreme Court has never required more-likely-than-not standard and likewise refusing to adopt the standard); see...