State v. Towne

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                                 No. 89-298



 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Edwin A. Towne
                                              February Term, 1991



 Alden T. Bryan, J. (pretrial motions)
 Frank G. Mahady, J. (pretrial motions and trial on the merits)

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

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


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      JOHNSON, J.   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 (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 (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 (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.  It "requires only a probability or
 substantial chance of criminal activity."  Id. at 244 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 (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,
 ___, 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 also Model Code, supra, at 499-500
 (rejecting more-probable-than-not standard for probable cause to search and
 stating that "there appear to be no cases in which it has been actually
 applied").
      Although we do not follow Gates in all its particulars, see State v.
 Ballou, 148 Vt. 427, 432-33, 535 A.2d 1280, 1283 (1987) (V.R.Cr.P. 41(c)
 adopts Aquilar/Spinelli rather than Gates standard for evaluating search
 warrants based on hearsay), our overall approach to reviewing warrants is
 consistent with Gates.  Our cases -- both before and after Brown --
 emphasize that affidavits in support of a search warrant "'must be viewed in
 a common sense manner and not be subjected to hypertechnical scrutiny.'"
 State v. Weiss, 155 Vt. 558, 562, 587 A.2d 73, 75 (1990) (quoting Ballou,
 148 Vt. at 434, 535 A.2d at 1284).  Rather, the totality of the
 circumstances must be examined to determine whether "there was substantial
 evidence supporting the warrant."  Id.
      Weiss is one of two cases that cite, but ultimately do not apply,
 Brown's more-likely-than-not standard.  In the other case, State v. Platt,
 154 Vt. 179, 574 A.2d 789 (1990), the Court cited Brown parenthetically, id.
 at 186, 574 A.2d  at 793, but relied on V.R.Cr.P. 41(c) (probable cause must
 be based on "substantial evidence") and Ballou ("key inquiry" in probable-
 cause determination is "whether the information provided in the affidavit
 reveals circumstances from which a person of reasonable caution would
 conclude that a crime has been committed and that evidence of the crime will
 be found in the place to be searched").  Id. at 185, 574 A.2d  at 793.
      The more-likely-than-not standard articulated in Brown emerged from a
 concern with the amorphous nature of probable cause.  Protection against
 police abuse lies not in quantification but in the requirement that there be
 a nexus between the crime, the suspect, and the place to be searched.
      In determining probable cause, the magistrate may consider the strength
 of the nexus between the defendant and the crime, and where that connection
 is strong, the link between the place to be searched and the evidence sought
 need not be as strong, if the place is one over which defendant exercises
 control.  See 1 W. LaFave, Search and Seizure { 3.2(e), at 598-99 (2d ed.
 1987).  Although the police may have probable cause that a suspect committed
 a particular crime, they will not always have probable cause to search "all
 places over which that individual exercises control."  Id. at 600.  Rather,
 there must be particular facts or logical inferences supporting a conclusion
 that the place to be searched may contain evidence.
      Probable cause "'can be inferred from the nature of the crime, the type
 of materials sought, the extent of an opportunity for concealment, and
 reasonable inferences as to criminal behavior.'"  Weiss, 155 Vt. at 563,
 587 A.2d  at 76 (quoting State v. Moran, 141 Vt. 10, 17, 444 A.2d 879, 882
 (1982)).
      Here, defendant was connected to the crime.  He had been involved in
 prior abductions of young women, and he admitted to being on the Jericho
 Road on the morning of the murder.  In addition, he was closely connected
 with the murder weapon.  He was known to have purchased a .32 caliber
 revolver a few months before the murder; a bullet from that gun matched one
 taken from the victim.  Given that his connections with the crime and the
 weapon were so strong, it was reasonable to believe that, if the weapon
 still existed, it would be somewhere within defendant's control.
      Ordinarily, the home is the first place to look for evidence of a
 crime.  See Moran, 141 Vt. at 17, 444 A.2d  at 882 (quoting United States v.
 Green, 634 F.2d 222, 226 (5th Cir. 1981) ("[F]ew places are more convenient
 than one's residence for use in planning criminal activities and hiding
 fruits of a crime.")).  A home provides the maximum of both privacy and
 accessibility.  "Where the object of the search is a weapon used in the
 crime . . . the inference that the item [is] at the offender's residence is
 especially compelling."  2 W. LaFave, supra, { 3.7(d), at 108; see also
 State v. Couture, 194 Conn. 530, 536-46, 482 A.2d 300, 304-10 (1984)
 (probable cause existed to search defendant's house for murder weapon where
 defendant was identified as perpetrator of armed robbery and murder, but was
 not aware he was suspected); Mills v. State, 278 Md. 262, 276-80, 363 A.2d 491, 499-501 (1976) (probable cause existed to search defendant's residence
 where defendant was identified as rapist, because his "home was a probable
 place for secreting objects" such as hunting knife used during the crime);
 Commonwealth v. Cinelli, 389 Mass. 197, ___, 449 N.E.2d 1207, 1216 (1983)
 (where probable cause existed to believe defendant committed armed robbery,
 probable cause existed to search defendant's house for weapons and
 ammunition, because articles were "the type of things that reasonably might
 be expected to be located in the residence of a person who had participated
 in an armed robbery"); State v. Faragi, 127 N.H. 1, 5-7, 498 A.2d 723, 727
 (1985) (warrant to search defendant's residence was valid where defendant
 had been linked to homicide and murder weapon was not found on defendant or
 in vicinity of crime scene); State v. Metzner, 338 N.W.2d 799, 804-05 (N.D.
 1983) (probable cause existed to search home of person suspected of
 possessing a weapon in violation of federal law where suspect "would
 logically be concerned that his possession of the weapon remain secret").
      In this case, the interior of the home had been virtually eliminated as
 a hiding place by the federal search conducted a few days before the warrant
 application.  The home's foundation, however, provided even greater privacy.
 Further, its limited accessibility was advantageous as a hiding place for a
 murder weapon, the next best option to disposing of or destroying it.
 Moreover, coincidence that defendant was constructing the foundation at the
 time of the murder provided him with a unique window of opportunity to
 conceal the weapon there.  Once the weapon was placed in the foundation,
 defendant was unlikely to retrieve it, especially after he became the focus
 of the investigation.  These factors were sufficient to allow the
 magistrate to make a common sense determination that there was a reasonable
 probability the murder weapon would be discovered in the foundation.
                II.  The Nontestimonial Identification Order
      Defendant argues that the trial court's nontestimonial identification
 order violated V.R.Cr.P. 41.1 and his state and federal constitutional
 rights against unreasonable searches and seizures and, consequently, that
 his refusal to comply with the order should have been suppressed.
                                A. Rule 41.1
      Defendant argues that the affidavit supporting the nontestimonial
 order failed to show that the requested procedure -- taking samples of
 defendant's head and pubic hair -- would "be of material aid" in
 determining whether he murdered the victim.  V.R.Cr.P. 41.1(c)(3).  He
 contends that, because the State had not tested the hair samples found in
 defendant's vehicle and on the victim's body at the time it requested the
 order, it did not know whether any foreign hairs useful for comparison had
 been recovered and, therefore, had no way of showing that the results of the
 procedure would be material.
      Materiality cannot be considered in isolation.  Rather, nontestimonial
 identification orders are evaluated like search warrants in a common-sense
 manner under the totality of the circumstances.  State v. Evans, 215 Neb.
 433, 442, 338 N.W.2d 788, 794 (1983).  Here, supporting affidavits met the
 first two parts of V.R.Cr.P. 41.1(c), showing probable cause that a crime
 had been committed and a reasonable suspicion that defendant had committed
 it.  In the second part, the issuing judge found that probable cause rather
 than reasonable grounds supported the suspicion, a showing stronger than
 V.R.Cr.P. 41.1(c)(2) requires.
      Thus, the affidavits established that defendant was closely linked to
 the crime.  The only issue posed by V.R.Cr.P. 41.1(c)(3), then, was whether,
 given the strength of the connection, defendant's hairs would be of material
 aid in proving or disproving his connection to the crime.
      The supporting affidavits established that, because of the condition of
 the body -- the victim's clothing had been partly removed, her jeans and
 panties were down to her knees -- the murder had almost certainly been
 preceded by a rape, and that hairs had been recovered from the victim's
 clothing.  Thus, the evidence sought -- defendant's hair samples -- was
 directly connected to the type of crime committed and to the evidence
 recovered at the crime scene.
      The trial court found that the nontestimonial identification order was
 fully supported by probable cause, that is, that each of Rule 41.1(c)'s
 three prongs was met by that standard.  Defendant does not challenge this
 conclusion, and we therefore need not reach the issue of whether probable
 cause, reasonable suspicion, or some lesser standard is required by
 subsection (c)(3).
      Rather, defendant argues that the requirement that an identification
 procedure "will be of material aid" is higher than even the Brown standard
 for probable cause, that is, it must be a virtual certainty that the test
 results will be material.  As defendant acknowledges, however, subsection
 (c)(3) focuses less on the probative value of the procedure than on its
 materiality.  See 1 J. Strong, McCormick on Evidence { 185, at 773-74 (4th
 ed. 1992) (distinguishing between materiality and probative value:
 materiality refers "to the relation between the propositions for which the
 evidence is offered and the issues in the case," while probative value
 refers to the "tendency of evidence to establish the proposition that it is
 offered to prove").  Subsection (c)(3) demands that the proponent of a
 nontestimonial identification procedure show materiality, but it sets the
 threshold for probative value of the test very low.  The evidence to be
 gained from the test must only "aid" in determining the material issue,
 the identity of the perpetrator.
      There is no doubt that when the victim and the accused have come into
 close contact and hair samples are found on a victim's body, comparing that
 hair with the accused's will be of material aid to determining whether he is
 properly a suspect.  Indeed, defendant himself called a witness to testify
 that the hairs taken from his vehicle did not match the victim's and, in
 closing argument, relied heavily on the lack of a hair-sample match to try
 to cast reasonable doubt on his identification as the murderer.
      Rule 41.1(c)(3) imposes no obligation that the police eliminate the
 victim or anyone else as the source of the hairs, as long as defendant
 could be the source.  Protection for the accused comes (1) from the concept
 of materiality, which requires a logical connection between the type of
 evidence sought and the capacity of that evidence to be useful in proving or
 disproving the case against defendant; (2) from the first two requirements
 of the rule, which focus on the likelihood that the accused is the
 perpetrator; and (3) from review of the request by a detached magistrate.
 The only issue under Rule 41.1(c)(3) is whether defendant's link to the
 crime -- already established under the first two parts of the rule -- will
 be strengthened or weakened by the hair sample comparison.
      The chief case relied on by defendant, Mulder v. State, 707 S.W.2d 908, 916 (Tex. Crim. App. 1986) (en banc), is factually distinguishable.  In
 Mulder, the court held it was error to have required that defendant submit a
 blood sample because, although blood was found at the crime scene, the
 affidavits did not state that defendant had been wounded or otherwise lost
 blood.  There is no reason to assume, absent such an allegation, that one
 committing burglary and attempted murder will leave blood at the crime
 scene.  In the case of rape, however, hair is often exchanged between victim
 and perpetrator.  There is a logical connection between the items sought --
 head and pubic hairs -- and the crime of rape.  When the crime is a violent
 one involving a strong possibility that hairs will be exchanged between
 perpetrator and victim, the hair comparison will be of material aid.
                 B. Article Eleven and the Fourth Amendment
      Defendant asserts that the federal and state constitutions require a
 different and higher standard than Rule 41.1.  Specifically, citing
 Schmerber v. California, 384 U.S. 757, 770 (1966), he contends that searches
 involving intrusions into the human body must pass a "clear indication"
 test.
      Schmerber requires that a police officer may not make a warrantless
 search "beyond the body's surface" absent a clear indication that evidence
 of a crime will be found.  Id. at 769-70.  Defendant is not entitled, as a
 matter of federal law, to the Schmerber test because removal of head and
 pubic hair does not involve such an intrusion.  See Skinner v. Railway Labor
 Executives' Ass'n, 489 U.S. 602, 617 (1989) (distinguishing collection of a
 urine sample from Schmerber blood-testing procedures that involved "a
 surgical intrusion into the body").          
      We hold, however, that the removal of pubic hair, involving an area of
 the body that is traditionally concealed from public view, implicates
 Article 11 of the Vermont Constitution.  See State v. Kirchoff, 156 Vt. 1,
 10, 587 A.2d 988, 994 (1991) ("Article 11 protects the people of the state
 'from unreasonable, warrantless governmental intrusions into affairs which
 they choose to keep private.'") (quoting State v. Zaccaro, 154 Vt. 83, 91,
 574 A.2d 1256, 1261 (1990)); see also Skinner, 489 U.S.  at 617 (collection
 of a urine sample implicates the Fourth Amendment because urination in
 public is proscribed by law and social custom).  Thus, in the absence of a
 valid exception, seizure of pubic hairs requires a warrant issued upon
 probable cause.
      Because it transfers decision making from the police to a neutral
 judicial officer, a nontestimonial identification order serves the function
 of a search warrant.  Defendant does not challenge the use of a
 nontestimonial order, but instead insists that the order was invalid because
 it was not supported by the probable cause standard of Brown, 151 Vt. at 535
 n.2, 562 A.2d  at 1058-59 n.2.  For reasons stated in part I, we decline to
 apply that standard.
      The affidavit supporting the nontestimonial order established that (a)
 a murder, almost certainly preceded by rape, had been committed; (b)
 probable cause existed to believe defendant committed the crime; (c)
 unidentified hairs were recovered from the victim's clothes.  Examined in a
 common-sense manner, these facts provide probable cause to support the
 order.  See State v. Cobb, 295 N.C. 1, 19-20, 243 S.E.2d 759, 770 (1978)
 (obtaining pubic hair samples from defendants arrested for first-degree rape
 was reasonable); Commonwealth v. Robson, 461 Pa. 615, 628-29, 337 A.2d 573,
 580 (1975) (court found probable cause to believe sample of defendant's
 pubic hair would provide evidence concerning the crime where there was
 probable cause that he murdered victim and that sexual activity had
 occurred).
      Defendant remarks in passing that the clear indication test may
 require more than probable cause.  He does not, however, explain how that
 test is more stringent.  Moreover, he does not explain why Article 11,
 unlike its federal counterpart, should apply a clear indication test to
 intrusions that do not go beyond the body's surface nor why that test, which
 was used in Schmerber to evaluate the reasonableness of a warrantless
 search, should apply here where the nontestimonial identification order
 functioned as a warrant.  We decline to reach these issues because they have
 been inadequately briefed.
                           III. The Miranda Waiver
      Defendant claims that the state failed to demonstrate he waived his
 Miranda rights prior to making statements to the police on October 21, 1986,
 and that the statements, therefore, should have been suppressed.
 Specifically, defendant contends that (a) his waiver was "ambiguous or
 equivocal," and the police breached their duty to seek clarification of the
 precise nature and extent of the waiver; (b) the police refused to disclose
 the underlying subject of the interrogation; (c) the State failed to prove a
 waiver beyond a reasonable doubt; and (d) his prior representation by
 counsel on a New Hampshire fugitive charge that served as a vehicle for
 defendant's arrest and custodial questioning made invalid any subsequent
 waiver by defendant of his right to counsel.
      On October 21, 1986, state police, in possession of a New Hampshire
 fugitive warrant and aware that defendant carried a firearm in violation of
 federal law, stopped and arrested him on Interstate 89 in South Burlington.
 Defendant was handcuffed, placed in a police cruiser, and read his Miranda
 rights.  When asked if he understood his rights, defendant acknowledged
 that he did.  The police then drove him to the police barracks asking no
 questions en route.
      Upon arriving at the barracks, the officers took defendant to an
 interview room and, for the second time, read him his Miranda rights.
 Defendant once again acknowledged that he understood his rights.  He was
 then asked the standard question from the form utilized by the police in the
 second Miranda reading: "With these rights in mind, do you want to talk to
 me now?" to which he replied, "Yes to find out what it's about."
      The police did not explain the purpose of the questioning but, instead,
 proceeded to ask defendant about his whereabouts on the day Paulette
 Crickmore disappeared.  Defendant stated that on that day he was on vacation
 and may have driven on the Jericho Road from Richmond to Route 15 and Eden.
 When the subject of a polygraph test was discussed, defendant expressed his
 desire to have an attorney present, and the interview was terminated.
      Prior to trial, defendant moved to suppress his statements to the
 police on the ground that the State could not establish he had made a
 knowing, intelligent and voluntary waiver of his Miranda rights.  The trial
 court denied the motion.
                               A.  The Waiver
      Defendant argues that his statement, "Yes to find out what it's about,"
 was too ambiguous or equivocal to constitute a waiver of his Miranda
 rights.
      In Miranda v. Arizona, 384 U.S. 436, 475 (1966), the United States
 Supreme Court ruled that, where the state relies on an individual's
 statements, it bears  "a heavy burden . . . to demonstrate that the
 defendant knowingly and intelligently" waived the right against self-
 incrimination and the right to counsel before making those statements.
 Further, Miranda will not allow an inference of waiver to be drawn "simply
 from the silence of the accused."  Id.
      This Court has held that an analysis of waiver requires a "'totality-
 of-the-circumstances approach,'" State v. Malinowski, 148 Vt. 517, 520, 536 A.2d 921, 923 (1987) (quoting Fare v. Michael C., 442 U.S. 707, 725
 (1979)).  That approach
         "permits -- indeed, it mandates -- inquiry into all the
         circumstances surrounding the interrogation.  This
         includes evaluation of [the defendant's] age,
         experience, education, background, and intelligence, and
         into whether he has the capacity to understand the
         warnings given him, the nature of his Fifth Amendment
         rights, and the consequences of waiving those rights."

 Id.  On appeal, "the trial court's findings [on waiver] must stand if they
 are supported by substantial credible evidence and are not clearly
 erroneous."  Id.
      The trial court weighed a number of factors in determining that
 defendant voluntarily, knowingly and intelligently waived his Miranda
 rights.  It highlighted, among other factors, defendant's age, his prior
 contacts with the police, (FN1) his prior representation by counsel on at least
 one other occasion pursuant to a major felony charge, and two statements
 made on the day of questioning that he understood his Miranda rights.  It
 accorded additional persuasive weight to the fact that defendant answered
 questions posed to him until the subject of a polygraph test arose,
 observing that he then "promptly terminated the discussion and requested a
 lawyer."  The court stated, "These are not the actions of a man unclear as
 to whether he will remain silent."
      The court concluded that
         [defendant's] words 'Yes to find out what it's about'
         are an express waiver of the defendant's right to remain
         silent and to have an attorney present.  He said 'yes,'
         meaning he was willing to talk to the officer.
         Furthermore, having his 'rights in mind,' he was willing
         to talk to the officer in order to find out 'what it's
         about,' meaning he would talk until he found out what it
         was about, at which point he would decide whether or not
         to stop talking.

 Ample evidence supported the trial court's conclusion that defendant had
 unequivocally waived his Miranda rights.
      In Connecticut v. Barrett, 479 U.S. 523 (1987), the United States
 Supreme Court explained that the "fundamental purpose of the Court's
 decision in Miranda, was 'to assure that the individual's right to choose
 between speech and silence remains unfettered throughout the interrogation
 process,'" id. at 528 (quoting Miranda, 384 U.S. at 469) (emphasis in
 Barrett), and stressed that interpretation of a statement of waiver "is
 only required where the defendant's words, understood as ordinary people
 would understand them, are ambiguous."  Id. at 529.  Authorities are not
 required "to ignore the tenor or sense of a defendant's response to
 [Miranda] warnings."  Id. at 528.
      Defendant here indicated that he wanted to speak.  Although he
 indicated that he wished to do so for a particular purpose, the words,
 nonetheless, expressed unambiguously a willingness to speak.  Because there
 was no ambiguity, the police breached no duty to clarify.
      Cases cited by defendant in support of his argument are factually
 dissimilar.  See United States v. Pena, 897 F.2d 1075, 1077-78 (11th Cir.
 1990) (after twice declining to discuss events with authorities and
 ultimately signing a waiver form, defendant said, in response to a request
 that he cooperate in questioning, "I want to.  I really want to but I can't.
 They will kill my parents."); Christopher v. Florida, 824 F.2d 836, 840
 (11th Cir. 1987) (questioning continued despite repeated invocations of the
 right to remain silent, including the statement, "Okay then.  I got nothing
 else to say"); Martin v. Wainwright, 770 F.2d 918, 923 (11th Cir. 1985),
 modified, 781 F.2d 185 (11th Cir. 1986) (defendant stated, "Can't we wait
 until tomorrow," but police, nonetheless, proceeded with questioning);
 United States v. Johnson, 558 F.2d 1225, 1227 (5th Cir. 1977) (defendant
 made contemporaneous statements, expressing both an intent to remain silent
 until receiving advice of counsel and a desire to cooperate by offering an
 explanation of events).
                          B.  The Failure to Inform
      Defendant argues next that the police refused to disclose the subject
 of the interrogation, in violation of the federal and Vermont constitutions.
 A Miranda waiver voluntarily, knowingly and intelligently made will not be
 deemed invalid solely because the police failed to inform an individual of
 the purpose of the interrogation.  Colorado v. Spring, 479 U.S. 564, 576-77
 (1987).  Defendant attempts to circumvent Spring by characterizing his
 response, "Yes, to find out what it's about," as a question about the
 subject matter of the interrogation and by arguing that, in failing to
 inform him, the police impermissibly refused to inform him of the true
 object of the questioning.  Defendant's affirmation that he was willing to
 talk to inform himself was not a direct inquiry obligating the police to
 respond.  Thus, there was no refusal as defendant contends.
      Defendant also argues that he was misled because he was arrested on the
 New Hampshire warrant, but subsequently questioned about the Crickmore
 murder.  This contention is not factually supported.  Nothing in the trial
 court's findings or the record indicate that defendant was told the grounds
 for his arrest.  Thus, that the police had a New Hampshire warrant and that
 they knew he was committing a federal felony could not have served to
 mislead defendant about the subject matter of the interrogation.
                           C.  The Burden of Proof
      Defendant's assertion that Chapter 1, Article Ten of the Vermont
 Constitution requires proof of waiver beyond a reasonable doubt is
 foreclosed by our decision in State v. Caron, 155 Vt. 492, 504, 586 A.2d 1127, 1134 (1990) (holding to the contrary).
                          D. New Hampshire Counsel
      Defendant stresses that, because the New Hampshire fugitive warrant
 served as a vehicle for his arrest and custodial questioning, his prior
 representation by counsel on the sexual assault charge underlying the
 warrant made invalid any possible subsequent waiver of his right to counsel.
 This argument was not made to the trial court and will not be considered
 here unless it reveals plain error.  State v. Olson, 153 Vt. 226, 235, 571 A.2d 619, 624 (1989).
      The record does not disclose whether, at the time of the New Hampshire
 sexual assault charge, defendant invoked his right to counsel pursuant to
 the Fifth Amendment to the United States Constitution, so we need not
 consider the issue with respect to that provision.  See Morse v. Morse, 126
 Vt. 290, 292, 229 A.2d 228, 230 (1967) (facts outside the record cannot be
 considered by this Court).  At most, it may be presumed that counsel was
 appointed pursuant to the Sixth Amendment.
      To the extent that defendant relies on this Sixth Amendment right to
 counsel, his argument is foreclosed by the United States Supreme Court's
 decision in McNeil v. Wisconsin, 111 S. Ct. 2204 (1991).  McNeil held that
 the Sixth Amendment right to counsel is offense specific, id. at 2207, and
 defendant himself emphasizes that the October 21, 1986 questioning was not
 related to the New Hampshire charge.  Thus, defendant has failed to
 demonstrate that questioning without counsel constituted any error,
 certainly not plain error. (FN2)
                               IV. The Arrest
      Defendant challenges the legality of his arrest.  He argues that there
 was no valid basis for the arrest because the New Hampshire warrant under
 which he was arrested violated an earlier plea agreement and because the
 arresting officer had no authority to arrest him for a federal felony.  He
 contends that the arresting officer detained him to question him about the
 Crickmore murder, a crime the officer did not have probable cause to believe
 he committed.  Therefore, defendant argues, the arrest was a pretext and
 illegal whether or not the officer had otherwise valid grounds for the
 arrest.
                  A. Validity of the Grounds for the Arrest
      Defendant contends that there was no valid ground for his arrest.  The
 police arrested defendant on a six-year-old New Hampshire fugitive warrant.
 The underlying offense was a sexual assault charge that New Hampshire
 authorities had agreed to drop when defendant pled guilty to a sexual
 assault charge in Vermont.  At the time of the arrest, however, the officers
 also had probable cause to believe that defendant possessed a firearm, in
 violation of federal law.  The trial court found the arrest was properly
 grounded on the federal felony.  We agree and do not reach the validity of
 the New Hampshire warrant.
      The trial court found that "the officers knew that the Defendant was a
 convicted felon and that he possessed a firearm in the vehicle."  Defendant
 acknowledges that possession of a firearm by a convicted felon violates
 federal law.  He also recognizes that state law enforcement agents may
 perform an arrest for a violation of federal law in conjunction with
 federal agents.  Defendant contends, however, that state law enforcement
 officers may not independently make arrests for federal felonies. A number
 of federal courts have stated in dicta that state officers may make
 warrantless arrests for violations of federal law as long as the arrests are
 lawful under state law.  See United States v. Bowdach, 561 F.2d 1160, 1168
 (5th Cir. 1977); United States v. Swarovski, 557 F.2d 40, 49 (2d Cir. 1977).
 These decisions rest on United States Supreme Court cases holding that
 arrests for violations of federal law by state officers accompanied by
 federal agents having no power to arrest are lawful as long they conform to
 state law.  See Miller v. United States, 357 U.S. 301, 305 (1958); United
 States v. Di Re, 332 U.S. 581, 591 (1948).
      Vermont law authorizes law enforcement officers to arrest without a
 warrant "when the officer has probable cause to believe a person has
 committed or is committing a felony."  V.R.Cr.P. 3(a)(1).  The rule does not
 limit an officer's authority to make arrests where probable cause exists to
 believe that a state felony was or is being committed, and we conclude that
 it permits state officers to make an arrest without a warrant where they
 have probable cause to believe that a federal felony is being or has been
 committed.  See Swarovski, 557 F.2d  at 46-47 ("great weight of opinion in
 the federal courts and in the courts of the State of New York, as well as
 the understanding and practice of the executive branches of the federal and
 state governments" supports the view that New York statutes authorizing
 arrest of person in the act of committing a felony in the state apply to
 federal as well as state felonies); see also United State v. Janik, 723 F.2d 537, 548 (7th Cir. 1983) (Illinois officers' implicit authority to make
 federal arrests inferred because an arrest had never been invalidated by a
 court where state officers made a federal arrest).  Because the arrest was
 valid under state law, under the reasoning of Swarovski and Bowdach, it was
 also valid under federal law.
      That defendant was arrested without a warrant does not alter the
 validity of the arrest.  The United States Supreme Court has recognized the
 prevailing common-law rule permitting warrantless arrest for a "felony
 committed in [a peace officer's] presence as well as for a felony not
 committed in his [or her] presence if there was reasonable ground for making
 the arrest."  United States v. Watson, 423 U.S. 411, 418 (1976).  This well-
 established rule should apply equally where a state officer makes a federal
 felony arrest.  Because state law enforcement officers may arrest for
 federal offenses pursuant to arrest warrants issued by state judicial
 officers, we conclude that a state law enforcement officer, who has a
 reasonable belief that a federal felony has been or is being committed, may
 make a warrantless arrest.
                                 B. Pretext
      Defendant argues that he was detained solely because the arresting
 officer wished to question him about the Crickmore murder and that
 therefore his arrest was invalid.  He bases this claim on the arresting
 officer's testimony that, subsequent to the arrest, defendant was
 interrogated about the Crickmore murder and not about the alleged New
 Hampshire offense.  The record contains no evidence, however, of the
 officer's purpose in making the arrest; and the trial court made no finding
 of pretext, noting the difficulty in determining an officer's subjective
 intent.
      No Vermont case examines the effect of an allegedly pretextual motive
 on an otherwise valid arrest.  The majority of federal circuits considering
 the issue have interpreted recent United States Supreme Court decisions as
 limiting Fourth Amendment analysis to an examination of the objective
 legality of the arrest.  United States v. Cummins, 920 F.2d 498, 501 (8th
 Cir. 1990); United States v. Hernandez, 901 F.2d 1217, 1219 (5th Cir. 1990);
 United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989); United States
 v. Hawkins, 811 F.2d 210, 215 (3rd Cir. 1987). (FN3) The test involves a two-
 pronged inquiry: "First, did the arresting officer have probable cause to
 believe that the defendant had committed or was committing an offense.
 Second, was the arresting officer authorized by state and/or municipal law
 to effect a custodial arrest for the particular offense."  Trigg, 878 F.2d 
 at 1041.
      In this case, defendant, a convicted felon, was being investigated as
 the prime suspect in the Crickmore murder.  During that investigation,
 police learned that he was subject to a New Hampshire fugitive warrant and
 that he was carrying a firearm, a federal felony.  The arresting officer had
 probable cause to believe a felony had been and was being committed; he was,
 therefore, authorized under state law to perform a warrantless arrest.
 Under the circumstances, the arrest was valid. (FN4)
                             V. The Information
      The information stated that defendant
         on or about 10 Sept. 1986, was then and there a person
         who wilfully, deliberately, and with premeditation did
         kill another, to wit:  Paulette Crickmore, by shooting
         her three times in the head, thereby causing her death,
         in violation of Title 13, Section 2301, Vermont Statutes
         Annotated.

 Defendant contends that, because the information does not include either the
 word "malice" or the word "murder," it was insufficient and charged him
 only with manslaughter.
      An information must "'set forth charges with such particularity as will
 reasonably indicate the exact offense the accused is charged with, and will
 enable [him] to make intelligent preparation for [his] defense.'"  State v.
 Cantrell, 151 Vt. 130, 137, 558 A.2d 639, 643 (1989) (quoting State v.
 Bradley, 145 Vt. 492, 495, 494 A.2d 129, 131 (1985)).  It must "state the
 essential elements of the offense."  State v. DeLaBruere, 154 Vt. 237, 276,
 577 A.2d 254, 276 (1990).
      The information cited 13 V.S.A. { 2301, the provision describing the
 difference between first- and second-degree murder, and tracked the
 statutory description of murder in the first degree.  Thus, the essential
 elements were included.  See State v. Johnson, No. 90-578, slip op. at 12
 (Vt. May 22, 1991) (malice has "no real meaning other than denoting various
 mental states").  The information reasonably indicated the exact offense of
 first-degree murder and permitted defendant to make intelligent preparation
 for his defense.
      Because we hold that the information was sufficient, we do not reach
 defendant's second claim, that the court erred by allowing the State to
 amend the information after the close of the State's evidence.
      Affirmed.

                                         FOR THE COURT:


                                         _________________________________
                                         Associate Justice

         
FN1.    Defendant challenges the trial court's finding that he had prior
 interactions with police, arguing that the evidence underlying the finding
 was hearsay.  But the rules of evidence do not apply to preliminary
 suppression hearings.  See V.R.E. 104(a); United States v. Matlock, 415 U.S. 164, 172-75 (1974).  Moreover, because the hearsay evidence underlying the
 finding was reliable, the trial court did not err in considering it.  The
 evidence consisted of testimony of the arresting officer that defendant had
 had several prior contacts with the police.  This testimony was based on
 information the officer acquired from court documents pertaining to
 defendant's federal trial for gun-law violations, from conversations with
 other police officers, defendant's parole officer and defendant himself,
 from computer checks conducted at the Vermont Crime Information Center, and
 from an FBI check.

FN2.    Defendant has not argued that any provision in the Vermont
 Constitution grants him greater rights than the Sixth Amendment to the
 United States Constitution.  Accordingly, we express no opinion on that issue.

FN3.      But see United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir.
 1988);United States v. Smith, 799 F.2d 704, 709 (11th Cir. 1986) (taking
 the minority position that a stop is legal if a reasonable officer would
 have made it absent the allegedly improper motive).  We follow the majority
 position because it more closely follows United States Supreme Court
 precedent that fourth amendment analysis should involve "an objective
 assessment of the officer's actions in light of the facts and circumstances
 confronting him at the time."  Scott v. United States, 436 U.S. 128, 136 (1978).

FN4.       Defendant has not suggested that pretext analysis under the
 Vermont Constitution differs from that under the Fourth Amendment to the
 United States Constitution.  Accordingly, we do not reach that issue.



--------------------------------------------------------------------------------
                                   Concurring


 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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 89-298



 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Edwin A. Towne
                                              February Term, 1991


 Alden T. Bryan, J. (pretrail motions)
 Frank G. Mahady, J. (pretrial motions and trial on the merits)

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

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


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J., concurring.   I concur and would also affirm, but disagree
 with the Court's rejection, in Part I, of State v. Brown, 151 Vt. 533, 562 A.2d 1057 (1989), on the ground that its standard requires "a rigid
 quantitative analysis for determining probable cause."  I would not overrule
 the Brown probable cause standard.  I will admit, however, that Brown's
 author could have made the standard clearer.
      I believe Brown was correctly decided and, under the facts and
 circumstances there, any test less stringent than "more likely than not"
 would be unwarranted.  This case presents similar circumstances, the Brown
 standard fits the case, and we not need deviate from it.
      In Brown, there was evidence that a crime -- felony possession of
 marijuana -- had been committed and evidence -- marijuana plants and
 defendant's statements to neighbors -- linking him to the crime.  Based on
 this evidence, we ruled that a search warrant was justified because
 marijuana or evidence of its use or sale would more likely than not be found
 on defendant's premises.  The premises included the residence and
 "unoccupied sheds, storage buildings, trailers and junk autos."  Id. at 534,
 562 A.2d  at 1058.  We wrote:
            The standard of probable cause may depend on the nature
          of the matter under consideration -- e.g., whether a crime
          has been committed, whether a particular person has com-
          mitted it, whether evidence of crime is to be found in a
          particular place, and so on.  See generally 1 W. LaFave,
          Search and Seizure { 3.2(e) (2d ed. 1987).  Our holding
          that the standard for "probable cause" is "more likely
          than not" is limited to situations, such as that obtaining
          here, where the pertinent inquiry is whether evidence of a
          crime will be found in a particular place.

 Id. at 535 n.2, 562 A.2d  at 1059 n.2 (emphasis added).
      The words "in a particular place" were an inartful way of describing
 everything included in the premises that were the subject of the warrant
 application, that is, the residence and "sheds, storage buildings, trailers
 and junk autos."  The holding must be reasonably read in light of the facts
 of the case.  If defendant in Brown had had other places to conceal the
 contraband, those too would have fallen under the rubric of "premises."  I
 view the "more likely than not" standard as applying to the likelihood of
 finding the sought-after fruits of the crime in any hiding place available
 to defendant.  Exclusive focus on a particular place is not a necessary part
 of the Brown standard.
      As stated in Brown, the standard of probable cause depends on the
 nature of the search's objective.  The objective here was similar to Brown.
 There was strong evidence that a crime had been committed and strong
 evidence linking defendant to that crime.  The police sought an
 instrumentality of the crime at defendant's premises, including the
 foundation or anywhere else available to defendant to stash the gun.  The
 Brown standard was satisfied in this case and we should affirm on that
 basis.  Given the relatively narrow focus of places to search in Brown, it
 would have been unacceptable to define probable cause as less than a
 preponderance.  Unless we struggle to give probable cause a reasonably tight
 definition in specific circumstances, it may become a mere hunch in all
 circumstances.
      The standard of probable cause may, depending on the circumstances,
 differ from the Brown standard, but this issue should be left to future
 cases, keeping in mind the role probable cause plays in protecting privacy.
 See 1 W. LaFave, Search and Seizure { 3.2(e), at 601 (2d ed. 1987) ("fair
 compromise between privacy and law enforcement interests" in determining
 probable cause depends on how "substantial [the] danger that the privacy of
 an innocent person will be invaded").





                                    ______________________________
                                    Associate Justice