In the Matter of Lavigne

O’Connor, J.

(dissenting in part). I agree with the court that the order denying Lavigne’s motion for a return of his blood should be reversed and that the matter should be remanded to the Superior Court for a hearing in which Lavigne will be entitled to participate. I also agree with the court that G. L. c. 276, § 1, “permits a search warrant based on a common law justification for its issuance,” ante at 835, and that the common law should allow a judge to order the compelled extraction of a person’s blood in appropriate circumstances. I do not agree, however, with the court’s articulation of the circumstances in which such an order should be permitted. Specifically, I do not agree that Lavigne’s extracted blood should be available to the Commonwealth if, after a hearing, the Commonwealth only “establish [es] probable cause to believe that Lavigne committed the crime and that the blood found at the scene of Croteau’s murder is relevant in the Commonwealth’s investigation of the crime, that is, that the identity of the source of the blood would aid in its investigation of Croteau’s murder.” Ante at 835. I would require that the Commonwealth establish probable cause to believe that the extracted blood would inculpate Lavigne in Croteau’s murder. Such a rule would be simpler, clearer, and more consistent with our traditional respect for individual rights than the formula announced by the court.

It seems highly likely that, if the Commonwealth is able to establish probable cause to believe that Lavigne committed *840 the murder, the Commonwealth also will be able to establish probable cause to believe that blood found at the scene of the murder, assuming that it is not the victim’s blood and that it was left at the scene at a relevant time, was Lavigne’s blood. If the Commonwealth is able to make such a showing, the Commonwealth will have established probable cause to believe that the extraction and testing of Lavigne’s blood will produce evidence of someone’s, namely Lavigne’s, guilt of a crime. That is a permissible justification for a search. However, if the Commonwealth can only establish probable cause to believe that Lavigne’s blood will either inculpate him, exculpate him, or neither, the Commonwealth will have failed to show that there is probable cause to believe that the extraction and testing of Lavigne’s blood will produce evidence to prove anyone’s guilt of a crime. We held in Commonwealth v. Murray, 359 Mass. 541, 547 (1971), from which the court quotes, ante at 835, that “a search for evidence to prove the commission of a crime [is not barred] provided there is probable cause for the belief that the evidence sought will aid in a particular apprehension or conviction.” Curiously, today the court holds that forced extraction of blood, which is far more, invasive than the ordinary search, is permissible even without such probable cause. The possible ramifications of such a departure, while unclear, are troubling.