People v. McFall, 25008

• Decision Date: 14 June 1971
• Docket Number: No. 25008,25008
• Citation: 175 Colo. 151,486 P.2d 6
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith R. McFALL, a/k/a Robert Fall, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 6

486 P.2d 6

175 Colo. 151

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith R. McFALL, a/k/a Robert Fall, Defendant-Appellant.

No. 25008.

Supreme Court of Colorado, En Banc.

June 14, 1971.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Allen P. Mitchem, Denver, for defendant-appellant.

KELLEY, Justice.

This is an appeal from the denial of a petition for writ of habeas corpus. The sole issue is the sufficiency of the affidavit submitted by authorities of the State of Florida in support of the extradition documents upon which a Governor's Warrant was issued. We hold that the affidavit was not sufficient and therefore reverse.

The appellant, Keith R. McFall, was charged in the District Court, in and for the City and County of Denver, by information with being a fugitive from the State of Florida. The application by the executive authority of Florida for the rendition of the defendant to that state alleged that he was charged in that state with (1) obtaining property by false personation, and (2) making a false statement to obtain property or credit. The affidavit in question was little more than a recitation in the language of the statute that the defendant on a certain date had committed the statutory offenses. Another affidavit relating to the identity of the appellant is not material to the issue presented by this appeal and will not be discussed.

The Attorney General in his brief in this court concedes that the affidavit in support of the charge does not contain a statement of underlying facts and circumstances sufficient to establish Probable cause, as required by the Fourth Amendment to the Constitution of the United States. Hithe v. Nelson, Colo., 471 P.2d 596, and cases cited therein.

In the Hithe case, the extradition was based upon an Information charging the offense. Here the charge on which the extradition proceedings are based is the affidavit of a bank employee executed before a judge. An affidavit may be used to 'charge' a crime for the purpose of obtaining an arrest warrant; however, when used it must set forth facts sufficient to justify a Fourth Amendment finding of the existence of probable cause. The affidavit should report or summarize enough evidence to justify the issuance of an arrest warrant in the accusing state. Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670; Grano v. State, 257 A.2d 768 (Del.Super.).

As noted above, the affidavit here contains no factual statements from which it could be concluded that there was probable cause to believe that the defendant had committed the offense. The affidavit being deficient, the accused is entitled to a writ of habeas corpus releasing him...