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12/20/77 ROBERT A. CONSALVI PETITIONER (AND A

December 20, 1977

ROBERT A. CONSALVI, PETITIONER (AND A COMPANION CASE) *FN1


Suffolk. Petitions filed in the Superior Court on January 5, 1977. The cases were heard by Keating, J. This case was initially heard by a panel composed of Keville, Goodman and Armstrong, JJ., and was thereafter submitted on the record and briefs to the other Justices, all of whom took part in this decision in accordance with the provisions of Mass.R.A.P. 24(a), Hale, C.j., Keville, Goodman, Grant, Armstrong, & Brown, JJ. Goodman, J., Dissenting, with whom Brown, J., joins.

SYLLABUS BY THE COURT

Extradition and Rendition. . Constitutional Law, Extradition.

The opinion of the court was delivered by: Armstrong

In a rendition proceeding, a Superior Court Judge was entitled to rely on an arrest warrant by a Judge of Kansas, the demanding State, which recited his finding of probable cause and was not required to review the adequacy of the demanding State's determination [732-733]; Goodman, J., with whom Brown, J., joined, Dissenting on the ground that under Kansas law the issuance of an arrest warrant, although stated to be on a finding of probable cause, does not require such a determination as would meet the requirements of the Fourth Amendment to the United States Constitution [733-737].

Pursuant to formal demands by the Governor of Kansas for rendition of the petitioners, the Governor of the Commonwealth issued warrants for their arrest, upon execution of which they initiated these proceedings for their release on writs of . See G. L. c. 276, §§ 11-20R. A Judge of the Superior Court denied the relief sought, and the petitioners have appealed. Their single contention on appeal, though presented in several variations, is that the documents which accompanied the Kansas demands are insufficient to establish probable cause that the petitioners committed the crimes charged, and thus that their arrests are invalid.

The papers in question include a copy of a complaint, subscribed by two Kansas law enforcement officers and sworn to before a Kansas Judge, which outlines in lengthy detail the facts surrounding and constituting the crimes charged and includes a list of witnesses, two of whom are the affiants. The papers also include an arrest warrant issued by the same Judge, which recites his finding of probable cause to believe that the petitioners (among others) committed the offenses charged. Both the complaint and the warrant are properly authenticated and comply on their face with the requirements of G. L. c. 276, § 14. Murphy, petitioner, 321 Mass. 206, 211-214 (1947). No contention is made that the petitioners are not the persons sought by Kansas. See Maldonado, petitioner, 364 Mass. 359, 362 (1973). The sole question is whether probable cause has been sufficiently established.

We accept, for purposes of decision, the petitioners' contention that the sworn complaint, treated as an affidavit, could not by itself support a valid finding of probable cause because it does not furnish a basis for determining that the allegations made therein are based on personal knowledge of the affiants or reliable information imparted to them. See Giordenello v. United States, 357 U.S. 480 (1958). From this it follows that the Judge, who had before him no other evidence pertinent to reliability, could not have made an independent finding of probable cause; nor did he purport to do so. Rather, he credited (at least impliedly) the Kansas Judge's finding, and it seems clear that he acted correctly in doing so.

"he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Interstate rendition involves an extended or significant restraint of liberty within the meaning of that rule and accordingly must be preceded by a judicial determination of probable cause. Ierardi v. Gunter, 528 F. 2d 929, 930 (1st Cir. 1976). But the Fourth Amendment does not require that that determination be made in the courts of the asylum State. "If . . . the papers submitted by the [demanding State] were to show that a judicial officer or tribunal there had found probable cause, Massachusetts would not need to find probable cause anew, nor would it need to review the adequacy of the [demanding State's] determination. Instead, it would be entitled to rely on the official representations of its sister State that the requisite determination had been made; thus in our view Massachusetts may credit an arrest warrant shown to have been issued upon a finding of probable cause in [the demanding State] just as it would credit [the demanding State's] indictment." Ierardi v. Gunter, supra at 931. See also Puopolo, petitioner, 372 Mass. 868 (1977); Smith v. Helgemoe, 117 N.H. 91 (1977); Pippin v. Leach, 189 Colo. 385, 390 (1975); In re Golden, 65 Cal. App. 3d 789, 794-796, appeal dismissed and cert. denied sub nom. Golden v. California, 434 U.S. 805 (1977). *fn2

The briefs indicate that the parties attempted to introduce evidence as to the proceedings which were had before the Kansas court at the time of the issuance of the arrest warrant, apparently for the purpose of shedding light on whether the Kansas Judge had a basis for his finding of probable cause other than the sworn complaint. The Judge correctly declined to receive such testimony. Compare Germain, petitioner, 258 Mass. 289, 297-299 (1927); Ierardi, petitioner, 366 Mass. 640, 644 (1975). To do so would have violated the most elementary principles of comity. The courts of this State should ordinarily decline to review the regularity of judicial proceedings in other States. *fn3 Whatever may have been the practice in Kansas before Gerstein v. Pugh, we decline to assume that that case has escaped the attention of the Kansas courts and that the practice today is to issue arrest warrants without regard to a showing of probable cause. "It would be an act of unwarranted arrogance for us to ascribe to ourselves virtue superior to that of other courts and so to assert power to hear and determine the faithfulness to duty of a sister court occupying a place like ours in the federal system." Garrison v. Smith, 413 F. Supp. 747, 757 (N.D. Miss. 1976), quoting Johnson v. Matthews, 182 F. 2d 677, 681 (D.C. Cir. 1950). In any event the Kansas Judge's express statement makes it clear that the question of probable cause was considered, and that probable cause was found, in these cases.

The record shows that the petitioners have been released on personal recognizance; thus, the entry in each case will be that judgments shall enter denying the writs and the petitioners shall be remanded to custody under the warrants of the Governor. Murphy, petitioner, 321 Mass. 206, 215 (1947), and cases cited.

So ordered.

Goodman, J., Dissenting (with whom Brown, J., joins).

It is submitted that the "complaint" *fn1 and the "arrest warrant" *fn2 in this case are an insufficient basis under the Fourth Amendment to the United States Constitution for the petitioners' arrest. The validity of this position depends on the extent to which the holding in Ierardi, petitioner, 366 Mass. 640, 645 (1975), has been modified by Gerstein v. Pugh, 420 U.S. 103 (1975). In Ierardi, petitioner, supra, the Supreme Judicial Court held that "hether there is probable cause to arrest can be fully litigated before the courts of the demanding State" and permitted extradition to Florida on the basis of an information brought by a Florida prosecutor. No finding of probable cause in Florida or Massachusetts had been made prior to extradition. Subsequently, Gerstein v. Pugh, 420 U.S. at 114, held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest" and ruled that the Florida procedure was violative of the Fourth Amendment. Under Florida procedure an arrest could be made pursuant to a capias based on a prosecutor's information, and the arrestee had no way of obtaining a judicial determination of probable cause for the arrest for at least thirty days. The Court said (at 124-125), "Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty . . . ."

In Ierardi v. Gunter, 528 F. 2d 929, 930 (1st Cir. 1976), the Court of Appeals applied the Gerstein case to the extradition proceedings which had been considered in Ierardi, petitioner. It held that " Gerstein requires a judicial determination of probable cause as a prerequisite to interstate extradition. After Gerstein such a determination must precede 'any significant pretrial restraint of liberty,' 420 U.S. at 125 . . . and we think interstate extradition necessarily involves significant restraint." Accord, Wellington v. South Dakota, 413 F. Supp. 151 (S.D.S.D. 1976) (following Ierardi v. Gunter). Contra, In re Golden, 65 Cal. App. 3d 789, 794-796 (1977) (which does not mention Ierardi v. Gunter). The court in Ierardi v. Gunter, supra at 930, pointed out that "t best extradition means an extended period of detention, involving custody pending administrative arrangements in two states as well as forced travel in between. At worst it means separation from a familiar jurisdiction and effective denial of the support of family, friends and familiar ...


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