Bell v. Superior Court In and For Pima County

• Decision Date: 27 October 1977
• Docket Number: CA-CIV,No. 2,2
• Citation: 117 Ariz. 551,574 P.2d 39
• Parties: Dennis BELL, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, John P. Collins, Judge of the Juvenile Court, PIMA COUNTY ATTORNEY of the State of Arizona, Respondents, and Real Party in Interest. 2725.
• Court: Arizona Court of Appeals

Page 39

574 P.2d 39

117 Ariz. 551

Dennis BELL, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, John P. Collins, Judge of the Juvenile Court, PIMA COUNTY ATTORNEY of the State of Arizona, Respondents, and Real Party in Interest.

No. 2 CA-CIV 2725.

Court of Appeals of Arizona, Division 2.

Oct. 27, 1977.

Rehearing Denied Dec. 8, 1977.

Review Denied Feb. 1, 1978.

Law Offices Erik M. O'Dowd by Bruce A. Burke, Tucson, for petitioner

Stephen D. Neely, Pima County Atty. by Clinton R. Stinson, Deputy County Atty., Tucson, for respondents and real party in interest.

OPINION

RICHMOND, Judge.

Is a juvenile detained while awaiting adjudication of a delinquency charge entitled to bail and a probable cause hearing? Although we deny relief because the question has become moot as to petitioner, whose adjudicatory hearing was scheduled for October 18, 1977, we assume jurisdiction to answer it as one of statewide concern that is likely to recur.

Petitioner was arrested by Tucson police officers on September 30, 1977, and immediately transported to the Pima County Juvenile Court Center. The "receiving form" used to process petitioner into the juvenile center recited that the referral was for the offense of possessing stolen property. On October 3, 1977, while he was still in detention, the state filed a formal petition alleging that petitioner was a delinquent child in that he had violated the law as follows:

"(RECEIVING STOLEN PROPERTY)

"On or about the 30 day of September 1977, DENNIS BELL bought, sold, possessed, concealed, or received stolen personal property, valued at $100, or more, to wit: four Mag wheels and tires; one car seat, all in violation of A.R.S. § 13-621, as amended, 13-1645, and 13-1647, as amended."

The following day petitioner, his mother, and his attorney appeared before a juvenile court referee at a detention hearing. No evidence was presented as to the alleged delinquent act. Petitioner requested a probable cause hearing and that bail be fixed in a reasonable amount. The requests were denied and the referee recommended that petitioner be detained because he lacked custodial supervision, would be a danger to himself or others if released, and might not be present for trial. The recommendation was appealed to the juvenile court judge and the matter was heard the same day. Petitioner, by counsel, requested the court to order the state to produce forthwith evidence of the alleged crime, receiving stolen property, so as to establish probable cause for detaining him, and that bond be set in a reasonable amount. The court ruled adversely to petitioner and found that it was not required to hold a probable cause hearing or set bond in a reasonable amount.

The Rules of Procedure for Juvenile Court, A.R.S. 17A, contain no provision for release on bail. Rule 3(b), however, sets forth the only conditions for detention:

"A child shall be detained only if there are reasonable grounds to believe:

"(1) That otherwise he will not be present at any hearing; or

"(2) That he is likely to commit an offense injurious to himself or others; or

"(3) That he must be held for another jurisdiction; or

"(4) That the interests of the child or the public require custodial protection."

Unless the situation falls within one of these specified categories, release from custody is mandated. It is unnecessary to reach the question of whether there is a constitutional right to bail in juvenile proceedings. When Rule 3(b) is applied consistent with the requirements of due process, an adequate substitute for bail is provided. Fulwood v. Stone, 129 U.S.App.D.C. 314, 394 F.2d 939 (1967); Baldwin v. Lewis, 300 F.Supp. 1220 (E.D.Wis.1969), reversed on other grounds 442 F.2d 29 (7th Cir. 1971); In re M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (1970). ¹

We agree with petitioner, however, that pre-trial detention of juveniles without determination of probable cause violates the Fourth Amendment. Several courts have held that a probable cause determination is required if the juvenile is at the risk of being incarcerated before trial. Baldwin v. Lewis, supra; Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969); Moss v. Weaver, 525 F.2d 1258 (5th Cir. 1976); People Ex Rel. Guggenheim v. Mucci, 32 N.Y.2d 307, 344 N.Y.S.2d 944, 298 N.E.2d 109 (1973).

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the United States Supreme Court held that arrest and detention under a prosecutor's information violated the Fourth Amendment because of failure to afford a probable cause determination by a magistrate. The court noted:

". . . (A) policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. * * * Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest."

95 S.Ct. at 863.

The state relies on the requirement in Rule V, Local Rules of Procedure for the Pima County Juvenile Court, that an adjudicatory hearing be held no later than 15 days from the filing of the petition when a juvenile is detained. We do not believe this 15-day requirement obviates the need for a probable cause determination as a prerequisite to detention in addition to the other grounds enumerated in Rule 3(b), Rules of Procedure for Juvenile Court, supra.

We are of the opinion, and so hold, that a finding of probable cause i. e., of "facts and circumstances, 'sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense,' " Gerstein, supra, 95 S.Ct. at 862 is required to justify pre-trial detention of a juvenile. ² As stated in Moss v. Weaver, supra:

"A finding of probable cause . . . is central to the (Fourth) Amendment's protections against official abuse of power. Pre-trial...