Merrimack

No. 7331

#### State of New Hampshire v. John Doe

December 3, 1975

*Warren B. Rudman,*attorney general, and *Robert V. Johnson II,*assistant attorney general, and *Edward N. Damon,*attorney *(Mr. Johnson*orally), for the State.

*Arthur E. Robbins,*of Massachusetts, and *Vincent J. Nardi II (Mr. Robbins*orally) for Mr. Doe.

Grimes, J.

The issue in this case is whether the contents of the affidavit and the evidence presented orally under oath were sufficient to support the issuance of a search warrant to take blood samples, saliva samples, and hair samples from the head and pubic area of John Doe. A warrant was issued by *Keller,*C.J., who transferred Doe’s objections prior to execution of the warrant.

*683On May 20, 1975, a twenty-two-year-old white woman was found dead on a bed in her apartment in Concord. The affidavit and evidence under oath submitted in support of the warrant contain among other facts and circumstances the following: An autopsy was performed and it was determined that death was due to strangulation. John Doe, a black man, admitted to the police that on May 20, 1975, he was living in an adjoining apartment in the same building as the victim and that he knew her and knew that she was living alone. A friend of the victim living in the same building told the affiant that the victim had told her that around May 10, 1975, at about 2 a.m., Doe had come to her apartment and asked her to go to a party with him, and that she declined. Affiant has no reason to believe that this person has any reason to distort what was told to her. A sister of the victim told a police officer that the victim had told her that Doe told her he wanted to see her in the nude and she was “afraid of a colored guy living next door to her.” Fellow employees of the victim told the police that the victim gave them the impression she was afraid of a black man married to a white woman living near her and who was always hanging around her doors and windows. A person who stated he was a friend of Doe’s told the police that a few days before the victim was found dead, he and Doe were watching the victim come out of her apartment and that Doe remarked “some day I’m going to get me a piece of that white meat.” Doe admitted that he had been drinking on the night of May 19-20 and told the police that he left work at about 12:45 a.m. and was driven to his apartment where he arrived at about 12:50. He said that he woke his wife to tell her he heard the victim and her husband fighting. Doe’s wife stated that this occurred at 1:05 a.m., after previously having stated that it had been at 1:30 a.m. She also stated she had not heard any sounds of fighting.

Stains on the pillow on which the victim’s head rested, on testing, were found to be type A blood. Seminal stains on a towel revealed that the subject was a secreter and had type AB or B blood. The affiant on May 21, 1975, found fingerprints on the outside window in front of the victim’s apartment which were partly smudged and in a position which indicated the person had slid the window open. These were found to match the fingerprints of Doe who could not successfully explain how his prints got on the window. Several hairs were found on the sheets of the bed where the victim was found, and one on her abdomen and one on her left hand. Laboratory tests showed all these hairs to be of Negroid origin. All other black men living in the apartment house consented to give samples of *684their blood, hair and saliva. The victim’s husband took a polygraph test given by a reliable and qualified operator who determined that he was being truthful when he denied causing the death of his wife. The position of the clothing around the victim’s neck and the presence of fresh scratch and abrasion marks on her neck formed the basis of the affiant’s opinion that the killer did not have short fingernails. The victim’s husband’s fingernails on May 20 were short, while Doe’s, which were examined several days later, were slightly longer than normal.

Before issuing the warrant, the trial justice heard sworn testimony of the affiant with regard to the credibility of the persons named in the affidavit who had given information, and of the captain in charge of the State Police Criminal Laboratory, who testified as to the competency and reliability of the persons who performed the various tests and as to the importance of obtaining samples from Doe to either rule him out as a suspect or establish a relationship or consistency with the items and materials found at the scene.

At a later hearing before the issuance of the warrant, the justice heard evidence from the same captain and from a doctor at the New Hampshire Hospital as to the manner in which the samples would be taken and the amount thereof. This testimony revealed that there would be no pain involved in taking the hair or saliva samples and the blood sample would be less than that required for a blood alcohol test. The evidence given under oath before the warrant was issued may, of course, be considered along with that contained in the affidavit. *State v. Titus,*107 N.H. 215, 220 A.2d 154 (1966); *State v. Salsman,*112 N.H. 138, 290 A.2d 618 (1972); *State v. Moreau,*113 N.H. 303, 306 A.2d 764 (1973).

The warrant provides that the samples shall be taken at the New Hampshire Hospital and prescribes the quantities to be taken, that the blood shall be taken under the supervision of a named doctor, and that the hair and saliva samples shall be taken by the captain of the crime laboratory. It further provides that Doe shall be detained only during the time necessary to transport him to and from the hospital and not over two hours at the hospital.

We begin by disposing of any claim that the evidence with respect to the informers was insufficient to establish the reliability of their information or their credibility. The identity of each person giving information was disclosed by name in the affidavit, their relationship to the victim and Doe was set forth, the employment of some was given, and the absence of any circumstances which would *685suggest the presence of any motivation to falsify was asserted. The affiant and the captain both testified that they believed the persons to be credible and that they could find no reason to doubt them. We hold that this is sufficient. *See United States v. Harris,*403 U.S. 573, 600 (1971) (Harlan, J., dissenting); *Jaben v. United States,*381 U.S. 214 (1965); *United States v. Ventresca,*380 U.S. 102 (1965); *State v. Collins,*112 N.H. 449, 298 A.2d 742 (1972).

Doe does not and cannot seriously claim that the State cannot take the samples in question if fourth amendment requirements are met. This was decided in *Schmerber v. California,*384 U.S. 757 (1966). No fifth amendment rights are involved. *Id.; State v. Arsenault,*115 N.H. 109, 336 A.2d 244 (1975). Also there is no question but that the samples will be taken in a reasonable manner in the hospital and the court has provided that his attorney may be present if he wishes. The sole question remaining, therefore, is whether the facts and circumstances presented to the court were sufficient to support its finding that probable cause to search existed. We hold that they were.

Contrary to Doe’s contention in oral argument, probable cause to search is not the same as probable cause to arrest. Probable cause to arrest exists where the facts and circumstances within the officer’s knowledge or of which he has reasonably trustworthy information would warrant a man of ordinary caution in the belief that the arrestee has committed or is committing a crime. *Ker v. California,*374 U.S. 23, 37 (1963). But the right to search is not dependent upon the right to arrest. *Carroll v. United States,*267 U.S. 132, 158 (1925). Probable cause to search exists if the man of ordinary caution would be justified in believing that what is sought will be found in the place to be searched *(Id.*at 162) and that what is sought, if not contraband or fruits or implements of a crime, will “aid in a particular apprehension or conviction.” *Warden v. Hayden,*387 U.S. 294, 307 (1967); *see Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment,*28 U. Chi. L. Rev. 664, 687 (1961). We do not hold that probable cause to arrest is lacking, but only that it is not essential to the issuance of a search warrant.

“[Ojnly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” *Spinelli v. United States,*393 U.S. 410, 419 (1969); *United States v. Ventresca,*380 U.S. 102, 107-09 (1965); *State v. Comeau,*114 N.H. 431, 321 A.2d 590 (1974). The evidence presented to the trial justice in this case meets this test.

The evidence before the court established that Doe is a black *686man and that hairs found on the body of the white victim and on the bed where it was found were of Negroid origin. Doe was in the vicinity of her apartment on the night of her murder. He, therefore, had the opportunity to commit the crime. His statements that he wished to see her nude and to have sexual relations with her also furnished a motive. The victim’s husband has been eliminated as a suspect. Doe’s fingerprints were on the window of her apartment and there was evidence that he had been attempting to date her, that she was afraid of him, and that he loitered around her doors and windows. Scratch and abrasion marks on the face and neck of the victim, made through wearing apparel, indicate the culprit did not have short fingernails. Doe’s nails were longer than normal. All other black men living in the apartment house consented to give samples of their hair, blood and saliva.

We are of the opinion that this was sufficient to justify the search for evidence and the limited detention necessary to conduct it. *See Davis v. Mississippi,*394 U.S. 721, 728 (1969); *United States v. Dionisio,*410 U.S. 1 (1973); *Schmerber v. California,*384 U.S. 757 (1966). We are also satisfied that there is a sufficient nexus between the evidence sought and the crime under investigation. *Warden v. Hayden,*387 U.S. at 307.

*Exceptions overruled.*

Kenison, C.J., concurred in the result; the others concurred.

*693Henry C. Newell filed memorandum of law.

Dan O’Connell filed memorandum of law.

*694Henry C. Newell filed memorandum of law.

Dan O’Connell filed memorandum of law.