Consalvi, In re

• Citation: 376 Mass. 699,382 N.E.2d 734
• Parties: In re Robert A. CONSALVI, Petitioner (and a companion case).
• Decision Date: 24 November 1978
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 734

382 N.E.2d 734

376 Mass. 699

In re Robert A. CONSALVI, Petitioner (and a companion case).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 14, 1978.

Decided Nov. 24, 1978.

Brian J. McMenimen, Boston, for petitioners.

Michael J. Barry, Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

HENNESSEY, Chief Justice.

On January 5, 1977, the petitioners, Robert A. Consalvi and Edward C. Kelley, were arrested in the Commonwealth pursuant to formal demands by the Governor of Kansas for their rendition. See G.L. c. 276 §§ 11-20R. Accompanying these demands were papers including a complaint, subscribed by two Kansas law enforcement officers and sworn to before a Kansas magistrate, and an arrest warrant issued by the same magistrate, which recited his finding of probable cause to believe that the petitioners committed the offenses charged. Each petitioner filed for habeas corpus in accordance with G.L. c. 276, § 19. A judge of the Superior Court denied the relief sought. After review by the Appeals Court, Consalvi, petitioner, --- Mass.App. --- ^A, 370 N.E.2d 707 (1977), we granted an application for further appellate review. ¹

The petitioners do not maintain that the papers submitted by the Governor of Kansas have been improperly authenticated or that they fail to comply on their face with the requirements of G.L. c. 276, § 14. Murphy, petitioner, 321 Mass. 206, 211-214, 72 N.E.2d 413 (1947). Nor is it argued that the petitioners are not the persons sought by Kansas. See Maldonado, petitioner, 364 Mass. 359, 362, 304 N.E.2d 419 (1973). Rather, the petitioners' single contention on appeal is that the Fourth Amendment mandates an independent judicial finding of probable cause in advance of rendition a determination they insist is absent in their cases.

Because we agree with the petitioners that rendition must be preceded by a judicial determination of probable cause, and for the reasons discussed below, we conclude that the petitioners should be discharged from custody.

The threshold question we face is whether the Fourth Amendment right to a judicial probable cause determination precedent to post-arrest detention, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), is applicable to rendition arrests. We hold that it is. "(T)he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." Gerstein v. Pugh, supra, 420 U.S. at 114, 95 S.Ct. at 863. It seems manifestly clear that the restraint of liberty incident to interstate rendition is no less substantial than the detention occasioned by the execution of a prosecutor's information, the procedure assailed in Gerstein. "At best, (rendition) 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 advisors." Ierardi v. Gunter, 528 F.2d 929, 930 (1st Cir. 1976). See Kirkland v. Preston, 128 U.S.App.D.C. 148, 154, 385 F.2d 670, 676 (1967). Accordingly, we think the procedural protection of a prior judicial finding of probable cause is constitutionally required in order to prevent wrongful rendition. ²

In holding that a judicial finding of probable cause must precede interstate rendition, however, we do not believe that the Commonwealth, as the asylum State, must always make an independent judgment that probable cause exists. The Fourth Amendment does not stretch that far. ³ If the documents submitted by the demanding State demonstrate 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." Ierardi v. Gunter, supra at 931. ⁴ Thus, where an indictment or an arrest warrant accompanies a demand for interstate rendition we will presume that the demanding State has conducted an independent judicial determination of probable cause in accordance with constitutional principles, see Puopolo, petitioner, --- Mass. --- ^B, 362 N.E.2d 1198 (1977), and will carry our inquiry no further. However, where a petitioner can show that a demanding State's arrest warrant or indictment procedure does not guarantee the requisite judicial finding of probable cause, see Moore, petitioner, 2 Mass.App. 399, 313 N.E.2d 893 (1974), we will require the demanding State to provide sufficient documentation or other evidence to demonstrate that a constitutionally valid determination of probable cause had been made in the demanding State. If such information is not forthcoming within a reasonable period of time, rendition should be denied. ⁵

In light of these principles, we consider the petitioners' claim. We note at the outset that the papers accompanying the rendition demands include an arrest warrant, signed by a Kansas magistrate, which recites a finding of probable cause. A document of this kind presumptively establishes the existence of a probable cause finding and provides a sufficient basis for interstate rendition. ⁶ Indeed, a rendition court's Fourth Amendment inquiry ordinarily will be satisfied by the presence of an arrest warrant from the demanding State. Only where the petitioner can demonstrate that the demanding State's arrest procedure is constitutionally suspect do we require the rendition court to look beyond the warrant. Here, however, we are obliged to conclude that further inquiry is justified because the issuance in Kansas of an arrest warrant, though stated to be on a finding of probable cause, does not require a demonstration that would satisfy the Fourth Amendment.

The Kansas Code of Criminal Procedure, Kan.Stat.Ann. § 22-2302 (Weeks 1974), provides: "If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue." It is instructive to observe, however, that, according to the governing case law in existence at the time the instant warrant was issued, a properly verified complaint was considered sufficient authority from which a finding of probable cause could be made and under which a warrant could be issued. See State v. Giddings, 216 Kan. 14, 17, 531 P.2d 445 (1975); State v. Woods, 214 Kan. 739, 741, 522 P.2d 967 (1974); State v. Addington, 205 Kan. 640, 644, 472 P.2d 225 (1970). Indeed, "(n)ormally, the warrant (was) issued solely on the basis of a complaint filed with the magistrate." Meyer, Arrest under the New Kansas Criminal Code, 20 U. of Kan.L.Rev. 685, 693 (1972). Importantly, the complaint need do no more than set out a crime in the words of the statute, without furnishing a basis for determining that the allegations made therein are based on personal knowledge of the complainants or on reliable information imparted to them. ⁷ Taken together, these procedures create a substantial probability that the arrest warrant for the petitioners could have issued solely on the constitutionally improper basis of an informant's conclusions unsupported by personal knowledge or reliable information. See Giordenello v. United States, 357 U.S. 480, 481, 486-487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Aguilar v. Texas, 378 U.S. 108, 112-114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Our belief that the uncertainty attendant to such procedures is constitutionally unacceptable is underscored by a similar finding of the Supreme Court of Kansas. Passing on a habeas corpus petition identical to the ones offered here, the Kansas court held that it would not permit rendition in the absence of an independent probable cause determination in that State's courts. Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978). In so holding, the court expressly "disapproved" its previous cases Giddings, Woods, Addington which had permitted the issuance of an arrest warrant on the mere authority of a verified complaint. Wilbanks v. State, supra, at 75, 579 P.2d 132. Keeping in mind that the Kansas arrest warrant in the instant cases was issued before the date of the Wilbanks opinion, we are compelled by our own examination of Kansas practice to conclude that Kansas's procedure for the issuance of an arrest warrant has failed to provide the "reliable determination of probable cause" that the Fourth Amendment demands. Gerstein v. Pugh, 420 U.S. 103, 124-125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In these circumstances, we cannot fully credit the Kansas arrest warrant or the Kansas magistrate's recital of probable cause.

Thus, since we cannot assume that the instant Kansas arrest warrant represents a judicial finding of probable cause that the petitioners committed the crimes charged, we must examine more fully the papers accompanying the Kansas extradition demands. The single relevant document is a lengthy and detailed complaint alleging that the petitioners were involved in the unlawful importation of marihuana with intent to sell. However, the complaint, treated as an affidavit, is incapable of supporting a finding of probable cause because it fails to state if these allegations are based on either the personal knowledge of the two officers or on information supplied by reliable informers. See Commonwealth v. Stevens, 362 Mass. 24, 26-28, 283 N.E.2d 673 (1972); Commonwealth v. Boswell, --- Mass. ---, --- ^C, 372 N.E.2d 237 (1978); Commonwealth v. Reynolds, --- Mass. --- , --- ^D, 370 N.E.2d 1375 (1977). Although the Kansas magistrate might well have taken oral testimony from the officers supplying this necessary information, no evidence of such colloquies exists in the papers accompanying the rendition demands. Thus, on the basis of...