APPEAL from the Circuit Court of Sangamon County; the Hon. BEN
K. MILLER, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
This appeal presents an enigmatic question: to what extent may one who is a suspect only in a homicide case be required to provide the State with blood and hair samples prior to being charged with the offense?
On September 6, 1981, at about 11:45 p.m., the body of Jean Cohn, estranged wife of Robert Cohn, the appellant, was discovered in her automobile about 3 1/2 blocks from her residence in Springfield. Death was caused by strangulation. The police went to the residence where they found the appellant tending the couple's children. Although they were apparently living apart, appellant would come to the home to care for the children while Jean worked at a Springfield hospital.
Upon being advised by the police of his wife's death, appellant stated that he had arrived at the residence at 9:53 p.m. and had remained there since that time. He further stated that the decedent had left for work at about 10:10 p.m. One of the officers observed that the appellant had some superficial scratches about his hands and that his shoes appeared to be damp and spotted with grass clippings. A witness who was at the residence next door stated to the police that he had seen appellant arrive in a pick-up truck at about 10:45 p.m.
During the morning hours appellant was taken to police headquarters. He was wearing a light green windbreaker jacket with a tan lining. The jacket had attached to it a red and white volunteer fire department patch. Fingernail scrapings from the body of the decedent revealed green, tan, red and white fibers. Also, the scrapings contained a quantity of blood and hair. No testing was done on any of these items because of the limited quantity found and the lack of samples for comparison.
While the record is sketchy on the point, it appears that appellant was not arrested or detained but released. It is established, and admitted by the State, that he has never been charged with the offense; no criminal information or complaint has ever been filed; no indictment has ever been handed down by a grand jury; no evidence has ever been presented to a grand jury. The record shows that a grand jury had been impaneled on September 17, 1981, but had been excused until October 22, 1981. Thus, at the time of the filing of the first motion, as described below, the grand jury was not even sitting, although the case was filed in the circuit court of Sangamon County under the caption "In re September 1981 Term Grand Jury." The additional caption "The People of the State of Illinois v. Robert L. Cohn" was added by appellant's counsel for the purposes of appeal as a method of designating the parties.
On October 19, 1981, the State's Attorney of Sangamon County filed in the circuit court of that county an instrument captioned as described above and entitled "Motion for Disclosure to Prosecution." The motion purported to sound under Supreme Court Rule 413 (73 Ill.2d R. 413). It was served on the appellant who filed a special and limited appearance contesting the jurisdiction of the court. The basis was that no adversary proceedings were pending and that Rule 413 is limited by Supreme Court Rule 411 (73 Ill.2d R. 411) providing that the disclosure rules apply only after an accused is charged with an offense. Over objection of the appellant the State was granted leave to file an amended motion. This was done on October 27, 1981. The amended motion still purported to sound under Rule 413 and was supported by an affidavit of a police officer. The affidavit recited essentially the facts as outlined above; i.e., discovery of the body, appellant's statement of times, witness' statement of time, presence of dampness and grass cuttings on appellant's shoes, presence of fibers, blood and hair under the fingernails, delay in testing.
Appellant's special and limited appearance stood to the amended motion and the trial court held a hearing on November 3, 1981. It overruled the special and limited appearance, found that it had jurisdiction and that probable cause existed for the taking of blood and hair samples from the appellant. It then ordered appellant to appear at a Springfield hospital for the purpose of taking of the samples under medical supervision.
Appellant appealed that order to this court on the same day, November 3, 1981. The State filed a motion to dismiss the appeal for lack of an appealable order and that motion was allowed by this court. Thereafter, the State filed in the circuit court of Sangamon County a petition for rule to show cause against appellant for his refusal to submit to the taking of samples. A hearing was held on the petition on December 18, 1981, and on December 21, 1981, the trial court entered an order of contempt, requiring appellant to be jailed until he complied with the order. Notice of appeal was filed December 22, 1981, and on December 23, 1981, appellant filed a motion in this court for revocation of the circuit court's order or in the alternative for a stay pursuant to Supreme Court Rule 609(c) (73 Ill.2d R. 609(c)). This court denied the revocation but allowed the stay conditioned on a bond and ordered an expedited briefing schedule.
The precise basis for the November 3 order is cloudy. It will be remembered that both the original motion and the amended motion were brought under Supreme Court Rule 413 and in theory the written orders emanating therefrom are likewise based on the rule. However, it appears from the record that both the trial judge and the State have retreated from that position. In making his ruling the trial judge stated:
"* * * It seems to me the question is at this point whether the affidavit is sufficient to support the sort of order that the State requests, whether that is done under Supreme Court Rule 413 or in effect is a request for a search warrant to allow the taking of blood, and after having reviewed the affidavit which has been filed and all the other documents which have been filed in this case, I am of the opinion and find at this time that the affidavit and the records in the case do support a finding of probable cause of the issuance of an order requiring the defendant or the focus of the investigation, Robert Cohn, to submit to blood and hair samples requested, whether that is in the nature of discovery under 413 or in the nature of a search warrant I think is immaterial."
The State's position is best summarized from a statement in its brief as follows:
"Whether by statute, or by the inherent power of the court, it is clear that under certain limited conditions evidence may be obtained from an individual not yet under arrest or charged with an offense. Surely there are instances in which a strong showing of need can be made, especially when diligent investigation has not produced sufficient evidence to justify the arrest of a particular individual but yet has established the likelihood of substantial progress in solving the case if identification procedures are employed against a suspect or a group of suspects."
It would thus appear that the State has abandoned any claim under Rule 413, but rests on a perceived inherent power in a trial court to require the production of evidence by a suspect prior to his being charged. At oral argument the State conceded that there was no probable cause to charge the appellant, but insisted that there was "probable cause" to link him to the offense and that this was sufficient to confer jurisdiction upon the circuit court to require him to ...