Rule 41.1 - [Effective 1/1/2025] Nontestimonial Identification(a) Authority To Issue Order. A nontestimonial identification order authorized by this rule may be issued by a judicial officer upon request of a law enforcement officer or an attorney for the state. (b) Time of Application. A request for a nontestimonial identification order may be made prior to the arrest of a suspect, after arrest and prior to trial or, when special circumstances of the case make it appropriate, during trial. The application may be made in person or by reliable electronic means in a manner consistent with V.R.Cr.P. 41(d)(4).(c) Basis for Order. An order shall issue only on an affidavit or affidavits sworn to before the judicial officer or over the telephone if the application is by reliable electronic means and establishing the following grounds for the order: (1) that there is probable cause to believe that an offense has been committed; (2) that there are reasonable grounds to suspect, or, in circumstances where constitutionally required, probable cause to believe, 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. (d) Issuance. Upon a showing that the grounds specified in subdivision (c) exist, the judicial officer shall issue an order requiring the person named in the affidavit to appear at a designated time and place for nontestimonial identification. If it appears from the affidavit that a person named or described in the affidavit may, upon service of the order to appear, either flee or alter or destroy the nontestimonial evidence, the judicial officer may direct a law enforcement officer to bring the person before the judicial officer. The judicial officer shall then direct that the designated nontestimonial identification procedures be conducted expeditiously. After such identification procedures have been completed, the person shall be released or charged with an offense. (e) Modification of Order. At the request of the person named in the affidavit, the judicial officer shall modify the order with respect to time and place of appearance whenever it appears reasonable under the circumstances to do so. (f) Failure To Appear. Any person who fails without adequate excuse to obey an order to appear served upon him pursuant to this rule may be held in contempt of the court in which the judicial officer who issued the order was sitting. (g) Service of Order. An order to appear pursuant to this rule may be served by a law enforcement officer. The order shall be served upon the person named or described in the affidavit by delivery of a copy to him personally. Service may be had at any place within the jurisdiction of the State of Vermont. (h) Contents of Order. An order to appear shall be signed by the judicial officer and shall state: (1) that the presence of the person named in the affidavit is required for the purpose of permitting nontestimonial identification procedures in order to aid in the investigation of the offense specified therein; (2) the time and place of the required appearance; (3) the nontestimonial identification procedures to be conducted, the methods to be used, and the approximate length of time such procedures will require; (4) the grounds to suspect that the person named in the affidavit committed the offense specified therein; (5) that the person will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance except for that required for voice identification; (6) that the person may request the judicial officer to make a reasonable modification of the order with respect to time and place of appearance, including a request to have any nontestimonial identification procedure other than a lineup conducted at his place of residence; and (7) that the person, if he fails to appear, may be held in contempt of court. (i) Implementation of Order. Nontestimonial identification procedures may be conducted by any law enforcement officer or other person designated by the judicial officer. Blood tests shall be conducted under medical supervision, and the judicial officer may require medical supervision for any other test ordered pursuant to this section when he deems such supervision necessary. No person who appears under an order of appearance issued pursuant to this rule shall be detained longer than is reasonably necessary to conduct the specified nontestimonial identification procedures unless he is arrested for an offense. (j) Return. Within forty-five days after the nontestimonial identification procedure, a return shall be made to the judicial officer who issued the order setting forth an inventory of the products of the nontestimonial identification procedures obtained from the person named in the affidavit. (k) Nontestimonial Identification Order at Request of Defendant. A person arrested for or charged with an offense may request a judicial officer to order a nontestimonial identification procedure. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judicial officer shall order the state to conduct such identification procedure involving the defendant under such terms and conditions as the judicial officer shall prescribe. (l) Motion To Destroy or Suppress. The person named in the affidavit may at any time move for an order directing that the products of the nontestimonial identification procedure, and all copies thereof, be destroyed on the ground that such procedure was carried out in violation of this rule or otherwise illegally. Prior to the filing of an indictment or information such a motion shall be made before the judicial officer to whom the return on the order was made. Thereafter, the motion shall be made or heard only in the county or territorial unit of trial and shall be treated as a motion to suppress under Rule 12(b)(3). If the motion is granted the products and copies shall be destroyed, and shall not be admissible at any hearing or trial. (m) Definition of Terms. As used in this rule, the following terms have the designated meanings: (1) "Offense" means an offense which is triable in any court and which is punishable by imprisonment for more than one year. (2) "Law enforcement officer" means any state or local government agent who is engaged in the enforcement of the criminal laws and who is authorized by the Attorney General or a State's Attorney to apply for or execute a nontestimonial identification order. (3) "Nontestimonial identification" includes identification by fingerprints, palm prints, foot prints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical or medical examination, handwriting examples, voice samples, photographs, and lineups. (n)Minors. This subdivision governs the procedure for obtaining nontestimonial identification orders pertaining to all persons who are or may be charged with being a delinquent child, whether the child ultimately is charged as a juvenile or as an adult. If a guardian ad litem has not been appointed for the child prior to issuance of the order, a guardian ad litem shall be appointed for the child before the order is served. The guardian ad litem shall be served with the order prior to its execution, and shall be provided with a reasonable opportunity to consult with the child prior to execution of the order and shall be present when the nontestimonial identification procedures are conducted. The court issuing the order may also include conditions in the order, in addition to those set forth in subdivisions (h) and (i) of this rule, in order to carry out the purposes of chapter 55 of Title 33. Amended Dec. 19, 1973, eff. 1/1/1974; Aug. 22, 1991, eff. 11/1/1991; Oct. 17, 2005, eff. 1/1/2006; amended May 6, 2024, eff. 1/1/2025.Reporter's Notes-2025 Amendment
Rule 41.1(b) and (c) are amended for consistency with V.R.Cr.P. 41(d)(4), which authorizes a judicial officer to issue a search warrant based on information communicated by reliable electronic means. The existing text of Rule 41.1(b) and (c) as pertains to the present amendment dates back to adoption and promulgation of the Vermont Rules of Criminal Procedure in 1973 (paragraph (c)(2) was subject to a 2006 amendment to clarify the standard of proof for issuance, consistent with Vermont case law).
Issuance of search warrants by reliable electronic means has become routine practice since significant revisions of V.R.Cr.P. 41 in 2010. The pertinent provisions were originally adopted in V.R.Cr.P. 41(c) but are now in V.R.Cr.P. 41(d)(4). The present amendments to V.R.Cr.P. 41.1 serve to conform practice for issuance of nontestimonial identification orders with those for issuance of search warrants under V.R.Cr.P. 41(d)(4), enabling applications for nontestimonial identification orders to be made by reliable electronic means, as well as in person, with supporting affidavits sworn to either in person, or by telephone if the application is by reliable electronic means.