Ierardi, In re

• Decision Date: 17 January 1975
• Citation: 366 Mass. 640,321 N.E.2d 921
• Parties: In re William Nicholas IERARDI, Petitioner.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 921

321 N.E.2d 921

366 Mass. 640

In re William Nicholas IERARDI, Petitioner.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 8, 1974.

Decided Jan. 17, 1975.

Margaret D. McGaughey, Boston (Patricia A. O'Neill, Milton, with her), for petitioner.

Michael C. Donahue, Deputy Asst. Atty. Gen., for respondents.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

REARDON, Justice.

This is a petition for a writ of habeas corpus heard by a judge of the Superior Court who made findings which are not in dispute. It appears that the petitioner is serving a sentence at the Massachusetts Correctional Institution at Walpole imposed in the Superior Court. On December 28, 1971, the Governor of Florida signed a 'Demand,' which set forth that the petitioner had been charged with breaking and entering a dwelling and grand larceny in the State of Florida, and that he had thereafter fled, taking refuge in Massachusetts, and which called for the surrender of Ierardi as a fugitive from justice. The demand is accompanied by the following six documents, all certified by the Governor to be authentic:

1. An application to the Governor of Florida from the assistant State Attorney of Dade County, Florida, for a requisition on the Governor of Massachusetts for the rendition of the petitioner.

2. A certified copy of a two-count information executed by the Dade County State Attorney on October 30, 1971, charging the petitioner and one other with breaking and entering a dwelling in Miami Beach on October 17, 1971, and the larceny of certain personal effects.

3. A certified copy of an affidavit dated December 13, 1971, reciting that an officer of the Miami Beach police department has knowledge that the petitioner and his companion broke and entered a dwelling in Miami Beach with intent to commit grand larceny and took miscellaneous property valued in excess of $100 belonging to the lessee of the apartment. The affidavit contains a typewritten signature of the officer followed by a jurat executed by a judge of the Criminal Court of Record for Dade County. The judge's signature is likewise typewritten.

4. A certified copy of a capias for the arrest of the petitioner by Florida sheriffs.

5. A certification by the judge that the clerk of the Criminal Court of Record for Dade County who certified the affidavit is duly qualified, and that his signature is genuine; and a certification from the clerk that the judge is the judge of the Criminal Court of Record of Dade County, and that his signature is genuine.

6. A certificate signed by the clerk stating that the copies of the information, the affidavit and the capias are 'true and correct.'

On May 4, 1972, the Governor of Florida signed an executive agreement directed to the executive authority of Massachusetts making demand for the rendition of the petitioner, noting that Florida desires to bring him to trial, and agreeing to his return to Massachusetts, following criminal proceedings in Florida. Thereafter, on September 28, 1972, the Governor of Massachusetts executed a warrant for the petitioner's arrest to be delivered to the custody of a Florida officer for return to that State. There is no question that the petitioner is the same person named in the demand and its supporting papers, and the warrant signed by the Governor of Massachusetts.

Three issues are raised on exceptions. The first two go to the sufficiency of the affidavit accompanying Florida's demand for extradition of the petitioner: (1) whether the affidavit is invalid due to its failure to state facts establishing probable cause for arrest on the Florida charge; and (2) whether it is invalid because it is not subscribed by the affiant or the attesting magistrate. The third issue is whether the Governor of Massachusetts has the power to extradite one who is currently serving a Massachusetts sentence without violating art. 30 of the Declaration of Rights of the Commonwealth.

We first discuss the issue of the requirement of probable cause. The pertinent statute, derived from § 3 of the Uniform Criminal Extradition Act (Uniform Act), 9 U.L.A. 274 (1957), is G.L. c. 276, § 14, as appearing in St.1937, c. 304, § 1, which provides: 'No demand for the interstate rendition of a person charged with crime in another state shall be recognized by the governor . . . unless such demand is accompanied by a copy of an indictment found, or of an information supported by affidavit, in the demanding state, or by a copy of an affidavit made before a magistrate of such state . . .. The indictment or information, or the affidavit made before the magistrate who issued the warrant, shall substantially charge the person demanded with having committed a crime under the law of the demanding state . . ..' In this instance Florida has provided copies of the information and an 'Affidavit in Aid of Extradition and in Support of the Information.' The petitioner argues here that the Governor's rendition warrant simulates any other arrest warrant and requires support by probable cause. It is agreed that where the demanding State provides the Governor with a copy of an indictment, that would suffice as representing a grand jury's finding of probable cause. It is argued, however, that an information is only a charging document and that the affidavit in support thereof must set forth the underlying circumstances which establish probable cause. A number of jurisdictions have embraced this theory in recent years following the decision of Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967). In that case the court construed the analogous Federal statute, 18 U.S.C. § 3182 (1964), as requiring an affidavit setting forth probable cause under the Fourth Amendment standards. The court emphasized inconvenience and hardship to the prisoner who is wrongly extradited, and cited the ease by which a demanding State can document probable cause in an affidavit similar in scope to one ordinarily required for a search or arrest warrant with which policemen and judges are most familiar. Decisions to the same effect include Raftery ex rel. Fong v. Bligh, 55 F.2d 189 (1st Cir. 1932); People v. McFall, 175 Colo. 151, 486 P.2d 6 (1971); Grano v. State, 257 A.2d 768 (Super.Ct.Del.1969); Sheriff v. Thompson, 85 Nev. 211, 452 P.2d 911 (1969); In re Fritz, 137 N.J.Eq. 185, 44 A.2d 414 (1945); People v. Artis, 32 App.Div.2d (N.Y.) 554, 300 N.Y.S.2d 208 (1969); In re Powell, Ohio Com.Pl., 2 Ohio Supp. 222, 10 Ohio Op. 54 (1937); State ex rel. Foster v. Uttech, 31 Wis.2d 664, 143 N.W.2d 500 (1966).

Conversely, a number of States have not required that the affidavit establish probable cause. Smith v. State, 89 Idaho 70, 403 P.2d 221, cert. den., 383 U.S. 916, 86 S.Ct 906, 15 LEd.2d 669 (1966); People v. Woods, 52 I11.2d 48, 284 N.E.2d 286 (1972); Bailey v. Cox, Ind., 296 N.E.2d 422 (1973); Koprivich v. Warden, 234 Md. 465, 200 A.2d 49 (1963); State v. Limberg, 274 Minn. 31, 142 N.W.2d 563 (1966); State ex rel. Trigg v. Thompson, 196 Tenn. 147, 270 S.W.2d 332 (1954). These cases tend to hold that extradition statutes, as well as art. 4, § 2, cl. 2, of the United States Constitution, have as their purpose expeditious and summary executive procedures for returning fugitives, with the issue of probable cause to be decided in the demanding State. See also Matter of Strauss, 197 U.S. 324, 332, 25 S.Ct. 535, 49 L.Ed. 774 (1905); Biddinger v. Commissioner of Police, 245 U.S. 128, 132--133, 38 S.Ct. 41, 62 L.Ed. 193 (1917); Sweeney v. Woodall, 344 U.S. 86, 89--90, 73 S.Ct. 139, 97 L.Ed. 114 (1952). A Massachusetts review of rendition papers has generally been very narrow. See Davis's Case, 122 Mass. 324, 328 (1877); Harris, petitioner, 309 Mass. 180, 184, 34 N.E.2d 504 (1941); Murphy, petitioner, 321 Mass. 206, 211, 72 N.E.2d 413 (1947); Maldonado, petitioner, --- Mass. ---, ---, ^a 304 N.E.2d 419 (1973). In Germain, petitioner, 258 Mass. 289, 155 N.E. 12 (1927), the petitioner offered to prove the affidavit false in that the affiant had in fact no personal knowledge of the crime. We refused to review this question in view of the fact that the affidavit appeared regular on its face and that the issue raised was one of credibility to be inquired into in the demanding State. Here, however, the petitioner does not ask that we consider the credibility of the affiant but only whether the affidavit on its face states probable cause.

The court's most recent discussion of extradiction in MALDONADO, PETITIONER, --- MASS. ---, 304 N.E.2D 419 (1973)^B, appears to us dispositive of this issue. There it was said, 'As regulated by the Uniform Act in harmony with the Federal Constitution (art. 4, § 2, cl. 2) and the Federal statute (18 U.S.C. § 3182 (1970)), interstate extradition is a summary executive procedure whose effect is essentially to enlarge the territorial area for lawful arrest, the asylum jurisdiction being added to the demanding jurisdiction.' id. at ---, ^c 304 N.E.2d at 421. There is no doubt that the Fourth Amendment applies to an arrest, but the Governor's rendition is merely one step in the process of securing that arrest. Matter of Strauss, 197 U.S. 324, 332, 25 S.Ct. 535, 49 L.Ed. 774 (1905). Whether there is probable cause to arrest can be fully litigated before the courts of the demanding State for 'in delivering up an accused person to the authorities of a sister state . . . (we) are not sending him for trial to an alien jurisdiction, with laws which our standards might condemn, but are simply returning him to be tried, still under the protection of the federal Constitution . . ..' Biddinger v. Commissioner of Police, 245 U.S. 128, 133, 38 S.Ct. 41, 43, 62 L.Ed. 193 (1917). In addition, principles of comity operate against inquiry into the criminal procedures of the demanding State. Indeed, as we have noted, the petitioner concedes that an indictment may be accepted as establishing probable cause without inquiring beyond the face...