In re NonTestimonial Identification Order

In re Non-Testimonial Identification Order (99-353); 171 Vt. 227; 
762 A.2d 1239 

[Filed 01-Sep-2000]
[Motion to Stay Mandate Denied 25-Sep-2000 and 4-Oct-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 99-353


In re Non-Testimonial Identification	         Supreme Court
Order Directed to R.H.
                                                 Original Jurisdiction


                                                 November Term, 1999


Ben W. Joseph, J.

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  non-testimonial 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.
    (FN1) 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 (1968), to determine whether
  police may stop a suspect for questioning.  See  Reporter's Notes,
  V.R.Cr.P. 41.1; State v. Cootz, 718 P.2d 1245, 1248 (Idaho 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; 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; see also State  v. Taylor, 145 Vt. 437, 440-41, 491 A.2d 1034, 1036 (1985) (reasonable suspicion is more than an  "inchoate or
  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 (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, 168 Vt.
  at 196-97, 720 A.2d  at 1102-03.

       We acknowledge that there is no direct evidence of defendant's
  involvement in the crime.  No  one saw him at the scene of the crime. 
  Nothing was found there that could tie defendant to the  crime.  He has
  never made a statement that could be interpreted as demonstrating
  responsibility.

       On the other hand, there is strong evidence of opportunity because
  defendant was familiar  with the remote area in which the crime occurred,
  and at the time of the homicide, he was spending  days driving around in
  his automobile with no specific destination.  He has a long history of
  violence  against women, the most recent episode of which involved conduct
  very consistent with how Patricia  Scoville's killer must have acted.  This
  shows that he had the means to commit the crime and may  have acted on the
  chance encounter with a woman alone on a bicycle in a remote place.  The
  facts  supporting defendant's involvement are specific and articulable.  We
  conclude that they, and the  rational inferences that can be derived from
  them, show reasonable suspicion that defendant killed  Patricia Scoville
  sufficient to warrant issuance of the NTO.  See State v. Ripperger, 514 N.W.2d 740,  747 (Iowa 1994) (NTO, issued against defendant in a rape case,
  was justified by reasonable suspicion  where defendant lived near the
  victims, knew one of them, and fit the general description of the  suspect
  in height, weight, and hair color and length); In re Fingerprinting of
  M.B., 309 A.2d 3, 7  (N.J. Super. Ct. App. Div. 1973) (order to fingerprint
  all male members of grammar school class 

 

  justified where class ring was found nearby body of non-resident murder
  victim and victim's car,  with unidentified fingerprints in it, was found
  the next day on street in town of grammar school).

       In reaching this conclusion, we have examined the cases in which we
  did not find reasonable  suspicion of criminal conduct.  Defendant points
  us particularly to State v. Kettlewell, 149 Vt. 331,   544 A.2d 591 (1987),
  as a relevant example of a case where the facts were insufficient to
  support a  seizure on reasonable suspicion.  In Kettlewell, an informant
  told the police that "Mexicans" were on  his land and that he did not know
  whether they were legal or not.  We held that this equivocal  statement,
  together with the fact that the suspects were speaking a Spanish dialect
  spoken in Mexico  and were in a type of vehicle often used to smuggle
  aliens, was not sufficiently specific to justify the  detention of the
  suspects.  See id. at 338-39, 544 A.2d  at 595.  In Kettlewell, we were
  required to  infer, based on very general evidence, that both a crime had
  been committed and the suspects had  committed it.  In contrast, in this
  case there is overwhelming evidence of a crime, and the factual  showing
  that defendant may have committed it is very specific and detailed. 
  Kettlewell is an  example of the kind of hunch we have viewed as
  insufficient to justify detention of a suspect.  This  case involves more
  than a hunch.

       Because we conclude that the district court properly found reasonable
  suspicion to believe  that defendant committed the offense, we must address
  defendant's argument that this showing is  inadequate to meet minimum
  constitutional requirements.  We first consider Article 11 of Chapter I  of
  the Vermont Constitution, under which we have already considered the
  constitutionality of the  NTO requirements as embodied in Rule 41.1.  We
  held in Towne, 158 Vt. at 621, 615 A.2d  at 492,  that a court can issue an
  NTO for the taking of a pubic hair sample only on a showing of probable 
  cause to believe that defendant committed a crime, the traditional standard
  for the issuance of a 

 

  search warrant.  Arguing that the Towne holding is based on the fact that
  the search involved an area  of the body traditionally concealed from
  public view, defendant asks us to hold that the inside of the  mouth is
  similarly protected so that probable cause should also be required in this
  case.  In further  support of this argument, he notes that the NTO in this
  case will require the officer who implements  the order to venture beyond
  the surface of the body.

       We do not believe that defendant's argument captures the essence of
  Towne.  In establishing  the line beyond which probable cause is required,
  we relied in Towne on State v. Kirchoff, 156 Vt. 1,  10, 587 A.2d 988, 994
  (1991), for the proposition that Article 11 protects persons from
  governmental  intrusion into affairs they chose to keep private.  We also
  relied upon the analysis of Skinner v.  Railway Labor Executives' Ass'n,
  489 U.S. 602, 617 (1988), which, while evaluating a requirement  to give a
  urine sample, noted that the passing of urine is done privately, as a
  matter of both social  custom and law.  The point of our analysis was that
  persons cover pubic hair as a matter of personal  privacy, and are often
  required to do so by law.

       Although the inside of one's mouth is often hidden from public view,
  exposing it does not  entail the embarrassment and social discomfort which
  accompanies the sexual and excretory  functions associated with the pubic
  area.  See United States v. Nicolosi, 885 F. Supp. 50, 55  (E.D.N.Y.1995)
  (expectorating not viewed with same disfavor nor concealed behind closed
  doors as  urinating; therefore, saliva lacks attendant expectation of
  privacy surrounding urination).  Indeed, by  talking and yawning, we
  frequently expose the interior of our mouth to public view.

       Nor do we find controlling significance in the fact that saliva is
  taken from a body cavity.  By  this argument, defendant is attempting to
  liken the taking of a saliva sample to the taking of a blood  sample, as
  involved in the leading case of Schmerber v. California, 384 U.S. 757,
  769-70 

 

  (1965) (drawing blood was intrusion beyond body's surface).  Our discussion
  of Schmerber in Towne  suggests that we would also require probable cause
  for the taking of a blood sample.  See Towne,  158 Vt. at 621, 615 A.2d at
  491-92; see also State v. Carter, 370 S.E.2d 553, 556 (N.C. 1988) (order 
  to withdraw blood requires probable cause under Article I, § 20 of North
  Carolina Constitution).  We  believe, however, that the critical element of
  Schmerber is that blood was removed by piercing the  skin.  See Skinner,
  489 U.S.  at 625 (distinguishing blood tests because they require piercing
  skin);  Nicolosi, 885 F. Supp.  at 53 (the critical distinction is between
  "physical evidence below the skin"  and physical evidence "outside the
  skin").  We do not believe that taking a saliva sample by  swabbing a pad
  on the inside of the mouth involves the same intrusiveness as drawing blood
  by  piercing the skin with a needle. 

       On the basis of the above analysis, we conclude that Article 11 does
  not require that the  prosecution demonstrate probable cause in order to
  obtain an NTO for saliva taken from the mouth.   The finding of reasonable
  suspicion suffices to comply with the requirements of Article 11.

       Finally, defendant challenges the NTO based only on reasonable
  suspicion as authorized by  Rule 41.1 under the United States Constitution,
  arguing that the collection of saliva on less than  probable cause violates
  the Fourth Amendment.  Although this argument has been raised twice 
  previously, we have not addressed it because in those cases we found
  probable cause to believe that  defendant committed the offense.  See
  Towne, 158 Vt. at 618-19, 615 A.2d  at 490; State v. Howe,  136 Vt. 53, 64,
  386 A.2d 1125, 1132 (1978).

       The Fourth Amendment, in two clauses, provides that the people have
  the right "to be secure  in their persons . . . against unreasonable
  searches and seizures," and that "no warrants shall issue,  but upon
  probable cause."  U.S. Const. amend. IV.  Until the 1960s, the need for
  probable cause 

 

  contained in the second clause was treated as an absolute to meet the
  standard of reasonableness  contained in the first clause.  See Dunaway v.
  New York, 442 U.S. 200, 207-08 (1978).  However, in  1968, in Terry v.
  Ohio, 392 U.S.  at 24-26, the Supreme Court held that stopping a suspect for 
  questioning and frisking the suspect for weapons was an intrusion so much
  less severe than that  involved in a traditional arrest that the
  reasonableness requirement of the Fourth Amendment could  be met by
  something less than probable cause.  The Court held that what was required
  was merely  that there be sufficient facts available to warrant a person of
  reasonable caution to form the belief  that the action taken was
  appropriate.  See id. at 22.  As described above, Terry announced the 
  reasonable suspicion standard.

       One year later, the Supreme Court decided Davis v. Mississippi, 394 U.S. 721 (1969), in  which it suggested that detentions for fingerprinting
  might comply with the Fourth Amendment on  less than probable cause.  In
  Davis, a woman who was raped in her home could identify her attacker  only
  as a black youth.  During the investigation, the police detained defendant
  and twenty-three  others for fingerprinting and questioning without
  probable cause.  Although the Court found a  violation of the Fourth
  Amendment in this warrantless interrogation, it suggested that a procedure 
  could be drafted that authorized fingerprinting on a showing short of
  probable cause:

    Detentions for the sole purpose of obtaining fingerprints are no
    less  subject to the constraints of the Fourth Amendment.  It is
    arguable,  however, that, because of the unique nature of the
    fingerprinting  process, such detentions might, under narrowly
    defined  circumstances, be found to comply with the Fourth
    Amendment even  though there is no probable cause in the
    traditional sense. . . .  Detention for fingerprinting may
    constitute a much less serious  intrusion upon personal security
    than other types of police searches  and detentions. 
    Fingerprinting involves none of the probing into an  individual's
    private life and thoughts that marks an interrogation or  search. 
    Nor can fingerprinting be employed repeatedly to harass any 

 

    individual, since the police need only one set of each person's
    prints.   Furthermore, fingerprinting is an inherently more
    reliable and  effective crime-solving tool than eyewitness
    identifications or  confessions and is not subject to such abuses
    as the improper line-up  and the "third degree."  Finally, because
    there is no danger of  destruction of fingerprints, the limited
    detention need not come  unexpectedly or at an inconvenient time.

  Id. at 727 (citations omitted).

       In response to Davis, Vermont and eight other states adopted NTO
  procedures.  This trend  slowed, however, when the Supreme Court decided
  Dunaway v. New York, 442 U.S. 200 (1978),  reinforcing the principle that
  probable cause was necessary for in-custody interrogation, even where 
  there has been no formal arrest.  The Court emphasized that "[a] single,
  familiar standard is essential  to guide police officers, who have only
  limited time and expertise to reflect on and balance the social  and
  individual interests involved in the specific circumstances they confront." 
  Id. at 213-14.  The  Court acknowledged the dicta in Davis, but noted that
  Davis had left open whether a procedure for  obtaining fingerprints without
  probable cause would be valid.

       More recently, in Hayes v. Florida, 470 U.S. 811 (1985), the Supreme
  Court repeated its  suggestion that "under circumscribed procedures, the
  Fourth Amendment might permit the judiciary  to authorize the seizure of a
  person on less than probable cause and his removal to the police station 
  for the purpose of fingerprinting."  Id. at 817.  The Court appeared to
  endorse more directly a stop to  conduct fingerprinting "in the field":

    There is thus support in our cases for the view that the Fourth 
    Amendment would permit seizures for the purpose of fingerprinting, 
    if there is reasonable suspicion that the suspect has committed a 
    criminal act, if there is reasonable basis for believing that 
    fingerprinting will establish or negate the suspect's connection
    with  that crime, and if the procedure is carried out with
    dispatch.

  

  Id. (FN2)  Also, it noted that some states had relied upon Davis to enact
  procedures for judicially  authorizing seizures for the purpose of
  fingerprinting.  See id.  The Court was referring to  procedures, like our
  Rule 41.1, which have been adopted by legislation or rule in at least nine 
  states. (FN3) See Note, DNA Typing: A New Investigatory Tool, 1989 Duke
  L.J. 474, 489 (1989).  

       Although the direction from the Supreme Court is more tentative and
  limited than we would  like, we conclude that the Court is prepared to
  uphold at least some nontestimonial identification  procedures based only
  on reasonable suspicion, with appropriate safeguards.  Most commentators 
  have reached this conclusion.  See 4 W. LaFave, Search and Seizure §
  9.7(b), at 327 (3d ed. 1996);  Comment, DNA "Line-Ups" Based on a
  Reasonable Suspicion Standard, 71 U. Colo. L. Rev. 221,  253-54 (2000);
  Note, supra, at 494.  Most state court decisions have also reached this
  conclusion.   See State v. Rodriguez, 921 P.2d 643, 650 (Ariz. 1996) (based
  on Arizona NTO statute); People v.  Madson, 638 P.2d 18, 32 (Colo. 1981)
  (based on Colorado NTO rule); Wise v. Murphy, 275 A.2d 205, 216 (D.C. Ct.
  App. 1971); Baker v. State, 449 N.E.2d 1085, 1090 (Ind. 1983); In re 
  Fingerprinting of M.B., 309 A.2d  at 7; State v. Hall, 461 A.2d 1155, 1160
  (N.J. 1983); In re Order  Requiring Fingerprinting of a Juvenile, 537 N.E.2d 1286, 1288-89 (Ohio 1989) (based on Ohio  statute allowing court to
  authorize photographing or fingerprinting of a juvenile).  In general, the 
  decisions that have rejected this conclusion have relied upon Dunaway with
  the mistaken view that 

 

  it had superceded the invitation of Davis.  See State v. Evans, 338 N.W.2d 788, 793 (Neb. 1983); In  re Abe A., 437 N.E.2d 265, 269, 452 N.Y.S.2d 6,
  10 (1982); In re Armed Robbery, Albertson's, on  August 31, 1981, 659 P.2d 1092, 1095 (Wash. 1983).  We think that Hayes dispels this interpretation 
  of Dunaway.

       In general, we believe that the NTO procedure in Rule 41.1 comports
  with the Davis dicta  and thus with the Fourth Amendment despite the fact
  that an NTO can be issued on a showing of  only reasonable suspicion.  The
  order is an advanced judicial determination akin to a warrant.   Although
  the court initially sets a time and date for appearance, it must modify
  that time and date on  application of the person named "whenever it appears
  reasonable under the circumstances to do so."   V.R.Cr.P. 41.1(e).  The
  person named may not be detained for longer than necessary to perform the 
  NTO procedure.  See id. 41.1(i).  The order must be served on the person
  named and contain: (1) the  procedures to be conducted, the methods used
  and the approximate length of time involved, see id.  41.1(h)(3); (2) the
  grounds to suspect that the person committed the offense, see id.
  41.1(h)(4); (3)  that the person will be under no obligation to submit to
  interrogation or make any statement, except  possibly for voice
  identification, during the procedure, see id. 41.1(h)(5); and (4) that the
  person can  seek a reasonable modification of the place and time of
  appearance, and request a procedure other  than a line-up be conducted at
  his place of residence, see id. 41.1(h)(6).  The person named may 
  challenge the order "at any time."  Id. 41.1(l).

       In People v. Madson, 638 P.2d  at 31-32, the Colorado Supreme Court
  concluded that an NTO  procedure would have to meet the following standards
  to be constitutional under Davis:

    First, there must be an articulable and specific basis in fact for 
    suspecting criminal activity at the outset.  Second, the intrusion
    must  be limited in scope, purpose and duration.  Third, the
    intrusion must

 

    be justified by substantial law enforcement interests.  Last,
    there must  be an opportunity at some point to subject the
    intrusion to the neutral  and detached scrutiny of a judicial
    officer before the evidence  obtained therefrom may be admitted in
    a criminal proceeding against  the accused.

  As we have interpreted it generally, and applied it in this case, our NTO
  procedure meets each of  these standards.

       We recognize that the decisions of the United States Supreme Court
  have involved the  narrow question of obtaining fingerprints.  We conclude
  that the basic elements of saliva sampling  for DNA are similar to the
  characteristics of fingerprinting as described in Davis.  Like 
  fingerprinting, saliva sampling involves no intrusion into a person's life
  or thoughts; it can not be  used repeatedly to harass; it is not subject to
  abuses like the improper line-up or the third degree.   DNA comparison "is
  an inherently more reliable and effective crime-solving tool than
  eyewitness  identifications or confessions."  Davis, 394 U.S.  at 727.  As
  we concluded under our analysis of  conformity with the Vermont
  Constitution, we do not believe a saliva procedure involves a "serious 
  intrusion upon personal security."  Id.  In reaching this conclusion, we
  reject the analysis of the main  precedent relied upon by defendant,
  Nicolosi, 885 F. Supp.  at 55, a case that required a showing of  probable
  cause to order a taking of saliva for DNA comparison, but did not involve a
  narrowly-tailored procedure complying with Davis.  We need not decide
  today whether other NTO procedures,  for example, withdrawal of blood,
  would similarly meet constitutional muster under the Fourth  Amendment. 
  See Hall, 461 A.2d  at 1161 & n.7 (reserving whether order to remove blood,
  based  only on reasonable suspicion, complies with Fourth Amendment).

       Although we are satisfied that Rule 41.1 is sufficiently complete to
  decide this case, we  conclude from our use of it that it warrants review
  in light of the developments that have occurred 
  
 

  since its adoption in 1973, long before DNA identification techniques
  became available.  Its  provisions were taken from a proposed Federal Rule
  that was never adopted.  See Note, supra, at  476; Reporter's Notes,
  V.R.Cr.P. 41.1.  Commentators have urged procedural protections not found 
  in our rule, and other states have adopted such protections.  See, e.g.,
  Note, supra, at 493 (destruction  of samples from non-matching suspects;
  right to have counsel present during taking of sample);  Comment, supra, at
  252 (destruction of samples of non-matching suspects).  The Federal
  Judicial  Conference ultimately decided not to recommend adoption of the
  federal rule by the United States  Supreme Court in order to have the
  benefit of more experience with the procedures in the states.  See  Note,
  supra, at 489.  We should also use the benefit of this experience.

       Thus, by this opinion, we ask our Advisory Committee on the Rules of
  Criminal Procedure to  review the provisions of Rule 41.1 in light of the
  experience with the rule in this state, the experience  with similar rules
  in other states, and the new technologies used in suspect identification. 
  See State  v. Conn, 152 Vt. 99, 105, 565 A.2d 246, 249 (1989)(similar
  referral on procedures involved in  waiving jury trials).  In making this
  referral, we do not intend to withdraw the support of this Court  for a
  strong and effective nontestimonial identification procedure rule.  Indeed,
  this case  demonstrates why such a court-supervised procedure is needed as
  an essential tool in the  investigation of serious crimes. 

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice




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                                  Footnotes


FN1.  Although the affidavit states that defendant was convicted of felony
  lewd and lascivious  conduct, the defendant points out that the 1981
  conviction was for misdemeanor lewdness.  This  does not affect our
  analysis.
       
FN2.  In a concurring opinion, Justice Brennan criticized the majority for
  reaching out in dicta to  "virtually . . . hold that onsite fingerprinting
  without probable cause or a warrant is  constitutionally reasonable. 
  Hayes, 470 U.S.  at 819 (Brennan, J., concurring).
  
FN3.  Alaska R. Ct. 16(c)(1)-(2) (1988); Ariz. Rev. Stat. Ann. § 13-3905
  (1978); Colo. R. Crim.  P. 41.1 (1984); Idaho Code Ann. § 19-625 (1987);
  Iowa Code Ann. § 810.1-.2 (West 1978 and  Supp. 1988); Neb. Rev. Stat. §§
  29-3301 to -3307 (1985); N.C. Gen. Stat. §§ 15A-271 to 282  (1983); Utah
  Code Ann. § 77-8-1 to -4 (1982).