Ierardi v. Gunter, 75--1273
| Decision Date | 13 January 1976 |
| Docket Number | No. 75--1273,75--1273 |
| Citation | 528 F.2d 929 |
| Court | U.S. Court of Appeals — First Circuit |
| Parties | William Nicholas IERARDI, Petitioner-Appellee, v. Frank O. GUNTER, Superintendent, Massachusetts Correctional Institution, et al., Respondents-Appellants. |
Michael C. Donahue, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Bureau, were on brief, for respondents-appellants.
Margaret D. McGaughey, Boston, Mass., for petitioner-appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
This is an appeal from an order of the district court granting a writ of habeas corpus and dismissing petitioner from the custody of a governor's warrant directing his rendition to Florida. Petitioner, who is serving a Massachusetts sentence at the Massachusetts Correctional Institution at Walpole, is charged in Florida with the crimes of breaking, entering and grand larceny.
On December 28, 1971, the Governor of Florida sent a formal demand for petitioner's rendition to the Governor of Masachusetts. The papers accompanying this demand included certified copies of a two-count information executed by a Florida prosecutor charging petitioner and another with breaking and entering a certain dwelling in Miami Beach and with the larceny of certain personal effects on October 17, 1971; an affidavit of a Miami Beach police officer repeating the allegations of the information and stating that they were within the affiant's knowledge; and a capias ordering petitioner's arrest by Florida sheriffs to answer to the charges in the information.
On September 28, 1972, the Governor of Massachusetts issued a warrant for petitioner's arrest and delivery to the custody of Florida agents. Petitioner sought a state writ of habeas corpus, complaining in part that his arrest on the Massachusetts Governor's warrant would violate the fourth amendment for want of any showing of probable cause in the papers forwarded by the Governor of Florida. The Superior Court dismissed the petition, and the Supreme Judicial Court affirmed. In re Ierardi Mass., 321 N.E.2d 921 (1975). Both courts held that the rendition warrant satisfied the fourth amendment as well as the Uniform Criminal Extradition Act as enacted in Massachusetts, M.G.L., ch. 276, §§ 11--20R. The Supreme Judicial Court reasoned that while there must be probable cause for an arrest, interstate rendition is only one step in the process of arrest; thus the question of probable cause could be fully litigated in the demanding state following extradition. Mass., 321 N.E.2d at 924, citing Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed.2d 193 (1917); Matter of Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905). The court added that in any event 'it here appears that under Florida law an information alone is considered the equivalent of an indictment and sufficient itself to establish probable cause. . . .' Mass., 321 N.E.2d at 924.
Following this decision petitioner filed his federal habeas corpus petition in the district court. Shortly thereafter the United States Supreme Court decided Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), a case presenting a constitutional challenge to Florida's practice of arresting and holding for trial persons charged by information. Rejecting Florida's contention that the prosecutor's decision to file an information is a determination of probable cause sufficient to justify detention pending trial, the Court held in Gerstein that 'the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention.' Id. at 126, 95 S.Ct. at 869.
In granting the writ in the present case, the district court found that Gerstein 'substantially changed the state of the law on which the Supreme Judicial Court relied in its decision herein.' The court held that extradition warrants are required to comply with fourth amendment standards and that the instant warrant was not based on probable cause and therefore did not comply.
We agree with the district court 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, 95 S.Ct. at 868, and we think interstate extradition necessarily involves significant restraint. At 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 advisors. If the charge is unsupported, the individual charged has a very substantial interest in having the error brought to light before rendition.
Against this, respondents point to two governmental interests at stake in extradition which were not considered in Gerstein and which, respondents say, would be defeated by reading Gerstein to require a pre-rendition judicial determination of probable cause. These are the interests of comity in transactions between sister states, 1 and of efficiency in bringing to justice criminals who have fled interstate. 2 We agree that these interests are of the utmost importance, but not that they are significantly burdened by imposition of Gerstein's requirement in this context. Respondents seem to assume that if a judicial determination of probable cause must precede extradition, it must be provided by the courts of the asylum state, where the fugitive is held. This is not so. Gerstein explicitly rejected the need for adversarial procedures; it required only the neutral and detached judgment of a judicial officer or tribunal, and contemplated that this could be provided before as well as shortly after arrest. 3 Thus nothing in Gerstein prevents the demanding state from providing the requisite pre-rendition determination of probable cause.
With this in mind, we do not believe it compromises the principles of comity to require a judicial determination of probable cause before rendition. Such a determination is fully consistent with reliance by the asylum state on the regularity of the demanding state's procedures. If, for example, the papers submitted by Florida were to show that a judicial officer or tribunal there had...
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