Gerstein v. Pugh 8212 477

Decision Date25 March 1974
Docket NumberNo. 73,73
PartiesRichard E. GERSTEIN, State Attorney for Eleventh Judicial Circuit of Florida, Petitioner, v. Robert PUGH et al. —477
CourtU.S. Supreme Court

1. The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Accordingly, the Florida procedures challenged here whereby a person arrested without a warrant and charged by information may be jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination are unconstitutional. Pp. 111-119.

(a) The prosecutor's assessment of probable cause, standing alone, does not meet the requirements of the Fourth Amendment and is insufficient to justify restraint of liberty pending trial. Pp. 116-118.

(b) The Constitution does not require, however, judicial oversight of the decision to prosecute by information, and a conviction will not be vacated on the ground that the defendant was detained pending trial without a probable cause determination. Pp. 118-119.

2. The probable cause determination, as an initial step in the criminal justice process, may be made by a judicial officer without an adversary hearing. Pp. 119-125.

(a) The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings, and this issue can be determined reliably by the use of informal procedures. Pp. 120-122.

(b) Because of its limited function and its nonadversary character, the probable cause determination is not a 'critical stage' in the prosecution that would require appointed counsel. Pp. 122-123.

483 F.2d 778, affirmed in part, reversed in part, and remanded.

Leonard R. Mellon for petitioner.

Raymond L. Marky, Tallahassee, Fla., for the State of Florida, as amicus curiae, by special leave of Court.

Bruce S. Rogow, Coral Gables, for respondents.

Paul L. Friedman, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.

[Amicus Curiae Information from pages 104-105 intentionally omitted] Mr. Justice POWELL delivered the opinion of the Court.

The issue in this case is whether a person arrested and held for trial under a prosecutor's information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.


In March 1971 respondents Pugh and Henderson were arrested in Dade County, Fla. Each was charged with several offenses under a prosecutor's information. 1 Pugh was denied bail because one of the charges against him carried a potential life sentence, and Henderson remained in custody because he was unable to post a $4,500 bond.

In Florida, indictments are required only for prosecution of capital offenses. Prosecutors may charge all other crimes by information, without a prior preliminary hearing and without obtaining leave of court. Fla.Rule Crim.Proc. 3.140(a); State v. Hernandez, 217 So.2d 109 (Fla.1968); Di Bona v. State, 121 So.2d 192 (Fla.App.1960). At the time respondents were arrested, a Florida rule seemed to authorize adversary preliminary hearings to test probable cause for detention in all cases. Fla.Rule Crim.Proc. 1.122 (before amendment in 1972). But the Florida courts had held that the filling of an information foreclosed the suspect's right to a preliminary hearing. See State ex rel. Hardy v. Blount, 261 So.2d 172 (Fla.1972).2 They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. See Sullivan v. State ex rel. McCrory, 49 So.2d 794, 797 (Fla.1951). The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla.Stat.Ann. § 907.045 (1973),3 and arraignment, which the District Court found was often delayed a month or more after arrest. Pugh v. Rainwater, 332 F.Supp. 1107, 1110 (S.D.Fla.1971).4 As a result, a person charged by information could be detained for a substantial period solely on the decision of a prosecutor.

Respondents Pugh and Henderson filed a class action against Dade County officials in the Federal District Court,5 claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief.6 Respondents Turner and Faulk, also in custody under informations, subsequently intervened.7 Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants.8

After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. Pugh v. Rainwater, supra. The court certified the case as a class action under Fed.Rule Civ.Proc. 23(b)(2), and held that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable cause. The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention.9 It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information.

The defendants submitted a plan prepared by Sheriff E. Wilson Purdy, and the District Court adopted it with modifications. The final order prescribed a detailed post-arrest procedure. 336 F.Supp. 490 (SD Fla.1972). Upon arrest the accused would be taken before a magistrate for a 'first appearance hearing.' The magistrate would explain the charges, advise the accused of his rights, appoint counsel if he was indigent, and proceed with a probable cause determination unless either the prosecutor or the accused was unprepared. If either requested more time, the magistrate would set the date for a 'preliminary hearing,' to be held within four days if the accused was in custody and within 10 days if he had been released pending trial. The order provided sanctions for failure to hold the hearings at prescribed times. At the 'preliminary hearing' the accused would be entitled to counsel, and he would be allowed to confront and cross-examine adverse witnesses, to summon favorable witnesses, and to have a transcript made on request. If the magistrate found no probable cause, the accused would be discharged. He then could not be charged with the same offense by complaint or information, but only by indictment returned within 30 days.

The Court of Appeals for the Fifth Circuit stayed the District Court's order pending appeal, but while the case was awaiting decision, the Dade County judiciary voluntarily adopted a similar procedure of its own. Upon learning of this development, the Court of Appeals remanded the case for specific findings on the constitutionality of the new Dade County system. Before the District Court issued its findings, however, the Florida Supreme Court amended the procedural rules governing preliminary hearings statewide, and the parties agreed that the District Court should direct its inquiry to the new rules rather than the Dade County procedures.

Under the amended rules every arrested person must be taken before a judicial officer within 24 hours. Fla.Rule Crim.Proc. 3.130(b). This 'first appearance' is similar to the 'first appearance hearing' ordered by the District Court in all respects but the crucial one: the magistrate does not make a determination of probable cause. The rule amendments also changed the procedure for preliminary hearings, restricting them to felony charges and codifying the rule that no hearings are available to persons charged by information or indictment. Rule 3.131; see In re Rule 3.131(b), Florida Rules of Criminal Procedure, 289 So.2d 3 (Fla.1974).

In a supplemental opinion the District Court held that the amended rules had not answered the basic constitutional objection, since a defendant charged by information still could be detained pending trial without a judicial determination of probable cause. 355 F.Supp. 1286 (SD Fla.1973). Reaffirming its original ruling, the District Court declared that the continuation of this practice was unconstitutional.10 The Court of Appeals affirmed, 483 F.2d 778 (1973), modifying the District Court's decree in minor particulars and suggesting that the form of preliminary hearing provided by the amended Florida rules would be acceptable, as long as it was provided to all defendants in custody pending trial. Id., at 788—789.

State Attorney Gerstein petitioned for review, and we granted certiorari because of the importance of the issue.11 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973). We affirm in part and reverse in part.


As framed by the proceedings below, this case presents two issues: whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution.


Both the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents. See Cupp v. Murphy, 412 U.S. 291, 294—295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973); Ex parte Bollman, 4 Cranch 75, 2 L.Ed. 554 (1807); Ex parte Burford, 3 Cranch 448, 2 L.Ed. 495 (1806). The standard for arrest is probable cause, defined in terms of facts and circumstances 'sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). See also Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 175—176, 69 S.Ct. 1302, 1310—1311, 93 L.Ed. 1879 (1949). This standard, like those for searches and...

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