(dissenting). I cannot agree that our common law permits a warrant to issue authorizing the forcible taking of blood from an unarrested, uncharged, and unindicted citizen of the Commonwealth. Accordingly, I dissent.
The court concludes that Massachusetts common law somehow provides for the issuance of a warrant for a body search for the extraction of blood in the circumstances of this case. The court is announcing a new rule of common law today, but it does so without reasoned and convincing analysis. I believe the court is engaging in arbitrary decisionmaking. In that I cannot join.
General Laws c. 276, § 1, provides, in part, that “[njothing [in § 1] shall be construed to abrogate, impair or limit powers of search and seizure . . . under the common law.” The first question we must answer, then, is whether the common law as it existed in the past permits the type of search at issue in this case.1
On review of the common law of the Commonwealth, I have found no authorization for the issuance of search warrants for mere evidence. The Commonwealth has not advanced any compelling argument in favor of interpreting the common law now to permit such searches. I see no reason to do so.
If we were to engage in the expansion of the common law in this area, we should do so only after reasoned and thoughtful analysis and logical inquiry. The court does not do this, however. Instead, the court merely notes that “[i]n extending the common law ... we are simply developing the common law.” Ante at 835. The court then goes on to recite the probable cause requirements for the issuance of this type of warrant. In doing so, the court utterly fails to explain why a warrant may issue at all. Thus, the court does not explain the bases on which it purports to “develop” the common law.
*838The court relies on Commonwealth v. Trigones, 397 Mass. 633 (1986), and Commonwealth v. Murray, 359 Mass. 541 (1971), in reaching its conclusion today. Neither case is relevant here, however, because neither case dealt with our common law or even with our Constitution. Instead, the results in both cases were based on the Fourth Amendment to the United States Constitution. See Trigones, supra at 640-641; Murray, supra at 547 (relying on Fourth Amendment and express provision of G. L. c. 276, § 1, Second). In addition, the court uses Commonwealth v. Brown, 354 Mass. 337, 342-343 (1968), as the starting point from which it purports to expand our common law in this case. I cannot see the logic by which the court leaps from allowing the search of the pockets of a person incidental to the lawful arrest of that person, id., at 341, 343, to the forced extraction of blood from one who has been neither arrested nor indicted.
I comment briefly on the disposition of this case ordered by the court. As I read the court’s opinion, the Commonwealth must return to Lavigne the blood sample seized from him, and if it wishes to obtain another sample, it must reapply for a search warrant which may be issued only after a hearing at which Lavigne shall be permitted to participate. Even if I were to agree that our existing common law would allow this type of search and that, therefore, a warrant may issue pursuant to G. L. c. 276, § 1,1 would not remand this case for further proceedings. Lavigne has been neither arrested nor indicted, and it appears from the record that the Commonwealth does not have probable cause to arrest or to indict him at this point. As the court suggests, the probable cause necessary for the issuance of a warrant here would subsume probable cause to arrest or to indict Lavigne. Absent a change in circumstances which would support a finding of probable cause to arrest or indict Lavigne, the Commonwealth should not be permitted to proceed in this matter.2
*839Because I do not believe that our common law permits the issuance of warrants for mere evidence searches, I conclude that no warrant may issue in the circumstances of this case. Moreover, since there currently does not exist probable cause to arrest or to indict Lavigne, I would not permit the Commonwealth to proceed further. For these reasons, I dissent.
Indeed, even the Commonwealth agrees that the issuance of this type of warrant is permissible, if at all, only under the “common law” provision of G. L. c. 276, § 1.
It should be noted that the case of Commonwealth v. Trigones, 397 Mass. 633, 640 (1986), which the court cites was, unlike this case, a case *839involving a postindictment order for the defendant to submit a blood sample. It is inapposite to the facts here where no finding of probable cause of guilt has been attempted.