Kirkland v. Preston, No. 20334.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: EDGERTON, Senior Circuit , and FAHY and WRIGHT, Circuit
• Citation: 385 F.2d 670,128 US App. DC 148
• Parties: Oliver Lee KIRKLAND and Elizabeth Smith, Appellants, v. Paul H. PRESTON and Luke Moore, Appellees.
• Docket Number: No. 20334.
• Decision Date: 19 January 1967

128 US App. DC 148, 385 F.2d 670 (1967)

Oliver Lee KIRKLAND and Elizabeth Smith, Appellants,
v.
Paul H. PRESTON and Luke Moore, Appellees.

No. 20334.

United States Court of Appeals District of Columbia Circuit.

Argued January 10, 1967.

Decided by Judgment Entered January 19, 1967.

Opinion Rendered September 14, 1967.

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Mr. William J. Garber, Washington, D. C., for appellants

Mr. Roger A. Pauley, Atty., Dept. of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Thomas Lumbard, Asst. U. S. Atty., were on the brief, for appellees. Mr. James A. Strazzella, Asst. U. S. Atty., also entered an appearance for appellees.

Before EDGERTON, Senior Circuit Judge, and FAHY^* and WRIGHT, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

On June 1, 1966, the Chief Judge of the District Court, acting in the role of chief executive for the District of Columbia pursuant to 23 D.C.Code § 401 (a) (1961),¹ issued warrants for the arrest of Oliver Lee Kirkland and Elizabeth Maria Smith with a view toward their extradition to the State of Florida. Before him at that time were various papers submitted by the Governor of Florida. These consisted of the affidavit of John Dowda of the Miami, Florida, Police Department, sworn to before a justice of the peace; an arrest warrant issued by the same justice of the peace; and a requisition form initialed by the Governor certifying the authenticity of the accompanying documents and formally demanding appellants' arrest and delivery up to Florida officials.

The police officer's affidavit read, in pertinent part, as follows:

"* * * On the 23rd day of July A.D., 1965, in the County and District aforesaid Dade County one Oliver Lee Kirkland & Elizabeth Maria Smith DID THEN AND THERE: unlawfully, wilfully, maliciously and feloniously set fire to and burn or cause to be burned a certain building, to wit: The Hut Bar, located at 2280 S.W. 32nd Avenue, City of Miami, Dade County, Florida, a further and more particular description of said bar being to the affiant unknown, the said bar being the property of one Fredrich Ritter."

Apart from the filling in of date, place and ownership, this language mirrors with its alternative clauses the text of

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the Florida second-degree arson statute.² It is clear that affidavits framed like this one in the conclusory statutory language and lacking any identification of sources do not show probable cause under the Fourth Amendment. See United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)

In the course of the brief extradition hearing which followed appellants' arrest, the Chief Judge, over appellants' objection based on lack of probable cause, ruled: "I do not go into the matter of probable cause here." Concluding that appellants had been "substantially charged," he ordered them bound over for extradition. Appellants then pursued their habeas corpus remedy in the District Court which ruled that the affidavit was "sufficient" and discharged the writ. This appeal followed.

On January 19, 1967, a week after argument before this court, we entered our judgment, indicating that an opinion would follow. Stating in the judgment that the officer's affidavit "does not allege sufficient evidence of probable cause to justify arrest," we ordered that, unless the defective affidavit was successfully cured by February 2, the habeas writ should be made absolute. No further documents were received from Florida, and on February 6 appellants were released from custody.

I

23 D.C.CODE § 401(a) defines the procedures for extradition from the District of Columbia "in all cases where the laws of the United States provide that fugitives from justice shall be delivered up," thus cross-referencing to 18 U.S.C. § 3182 (1964),³ the basic federal statute on interstate extradition enacted by the Second Congress in 1793, 1 STAT. 302. Since then Section 3182, which incorporates most of the language from the Extradition Clause of the Constitution,⁴ has not been altered or amended in significant respects.⁵ Under its provisions extradition is dependent on submission to the asylum jurisdiction of "an indictment found or an affidavit made before a magistrate * * *, charging the person demanded with having committed treason, felony, or other crime." Appellants were not indicted, and hence authority for extradition, if any, must derive from the affidavit provision of Section 3182. Whether a police officer's affidavit

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supports extradition when it merely repeats the language of the criminal statute allegedly violated is a question relating to the proper construction of Section 3182. We hold that, for purposes of extradition, the Section 3182 "affidavit" does not succeed in "charging" a crime unless it sets out facts which justify a Fourth Amendment finding of probable cause

II

Before Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), made the Fourth Amendment applicable to the states through the Fourteenth, and Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made it enforceable against them by the same sanctions and by application of the same constitutional standards as prohibit unreasonable searches and seizures by the federal government, the quantum of evidence needed for arrest in the individual states was not a matter of federal concern. Though a pre-Wolf constitutional law of arrest could perhaps have been developed directly from the Fourteenth Amendment's "deprivation of liberty" clause, it apparently was not. And, in fact, only developments since Wolf and Mapp have made it clear that what those cases applied to the states was the whole of the Fourth Amendment, thereby transmuting the federal standard of probable cause into a minimal and uniform requirement of a valid arrest by state officers.⁶

Even before Wolf and Mapp were decided, we find a brace of federal and state cases indicating that in extradition proceedings the Section 3182 affidavit from the charging state had to show "probable cause," though not necessarily in the constitutional sense.⁷ Yet this court, after once indicating that a probable cause finding was a prerequisite in Section 3182 proceedings generally, Blevins v. Snyder, 57 App.D.C. 300, 22 F. 2d 876 (1927), in another pre-Wolf case, Riley v. Colpoys, 66 App.D.C. 116, 85 F.2d 282 (1936), apparently approved a Section 3182 affidavit framed in the conclusory language of the demanding state's criminal statute.⁸ Even in Riley, however, this court was careful to point out that the affidavit submitted was adequate

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to effect an arrest under the law of the demanding state, Michigan.⁹

The Supreme Court's deepest judicial inquiry into the qualities of the "affidavit * * * charging" requirement of Section 3182 was in Matter of Strauss, 197 U.S. 324, 25 S.Ct. 535, 49 L.Ed. 774 (1905), decided long before Wolf.¹⁰ There the court rejected the claim that under the Extradition Clause a suspect is not charged with a crime until his case is actually pending in a court of competent jurisdiction. Instead the Court ruled:

"* * * Doubtless the word `charged\' was used in its broad signification to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge. * * *" 197 U.S. at 331, 25 S.Ct. at 537. (Emphasis added.)¹¹

Though Strauss indicates that an arrest warrant from the demanding state must accompany the affidavit, Section 3182 has never explicitly required that the magistrate before whom the affidavit is sworn issue such a warrant and the courts since Strauss have not found such a requirement by implication.¹² Nevertheless Strauss as well as Riley and almost all other pre-Wolf decisions indicate quite clearly that the Section 3182 affidavit should report or summarize enough evidence to justify issuance of an arrest warrant in the accusing state.¹³ It then

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follows that now, since Wolf and Mapp, the Section 3182 affidavit must also present facts sufficient to establish a showing of probable cause under the federal Fourth Amendment standards. For apprehension of a fugitive under Section 3182 is plainly a criminal arrest since it deprives him of his liberty for the purpose of insuring his presence at a criminal trial. See Strauss, supra, 197 U.S. at 333, 25 S.Ct. 535

There is no reason why the Fourth Amendment, which governs arrests, should not govern extradition arrests.¹⁴ Under its familiar doctrine arrests must be preceded by a finding of probable cause. When an extradition demand is accompanied by an indictment, that document embodies a grand jury's judgment that constitutional probable cause exists. But when the extradition papers rely on a mere affidavit, even where supported by a warrant of arrest, there is no assurance of probable cause unless it is spelled out in the affidavit itself. Thus Fourth Amendment considerations require that before a person can be extradited on a Section 3182 affidavit the authorities in the asylum state must be satisfied that the affidavit shows probable cause.

III

The law appreciates the hardship which extradition can involve: not only the suspension of one's liberty, but his deportation from the state in which he lives into another...