Pippin v. Leach

• Decision Date: 12 May 1975
• Docket Number: No. 26456,26456
• Citation: 534 P.2d 1193
• Parties: Paul David PIPPIN, Petitioner, v. Brad LEACH, Sheriff of Boulder County, Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1193

534 P.2d 1193

188 Colo. 385

Paul David PIPPIN, Petitioner, v. Brad LEACH, Sheriff of Boulder County, Colorado, Respondent.

No. 26456.

Supreme Court of Colorado, En Banc.

May 12, 1975.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for petitioner.

John P. Moore, Atty. Gen., Edward G. Donovan, Sol. Gen., Janet Lee Miller, Asst. Atty. Gen., Denver, for respondent.

ERICKSON, Justice.

This appeal questions the sufficiency of extradition documents submitted by the State of Michigan. A hearing on a writ of habeas corpus provides the factual background for this appeal. The trial judge discharged the writ after finding that the extradition papers were sufficient and substantially charged Paul David Pippin with the commission of a crime in the State of Michigan. We reverse and remand with directions to the trial court.

Pippin was arrested after a felony complaint was filed charging him with being a fugitive from justice. Requisition documents were thereafter forwarded to Colorado by the Michigan authorities. The first attempt to comply with our extradition statute resulted in the documents being returned to the State of Michigan for correction, in accordance with our decision in People v. McFall, 175 Colo. 151, 486 P.2d 6 (1971). The sufficiency of the charging documents which were thereafter submitted by Michigan, consisting of a complaint, affidavit, and warrant, are challenged in this appeal.

In McFall, we approved of the procedure which permits a demanding state to correct a defective affidavit in an extradition proceeding within a reasonable time. In view of the fact that Pippin is awaiting trial on narcotics charges in the Boulder district court, we grant the Michigan authorities an additional fifteen days to correct the second set of documents which have been offered by the State of Michigan to support their demand for extradition.

The Uniform Criminal Extradition Act, which Colorado has adopted, sets forth the requirements which must be met by the demanding state. C.R.S.1963, 60--1--3 ¹ provides:

'16--19--104. Form of demand. No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under section 16--19--107, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon, or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, or judgment of conviction or sentence must be authenticated by the executive authority making the demand.'

Probable Cause

The central issue in this case is whether the affidavit which supports the demand for extradition establishes probable cause. Pippin contends that the affidavit does not set forth the source of the information as required by the Supreme Court in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Norrod v. Bower, Colo., 532 P.2d 330 (1975); People v. McFall, Supra. We have concluded that the affidavit does not establish probable cause.

In Hithe v. Nelson, 172 Colo. 179, 471 P.2d 596 (1970), we held that when extradition is not based on a grand jury indictment in the demanding state, the affidavit which supports either an information or a warrant must establish 'something approaching' probable cause. To avoid confusion in the future, and in conformity with Norrod v. Bower, Supra, and People v. McFall, Supra, we declare that probable cause must be established by the extradition documents if extradition is to occur, and nothing short of probable cause will suffice. U.S.Const. amend. IV. Therefore, to whatever extent that Hithe v. Nelson, Supra, is inconsistent with the views expressed in this opinion, it is modified. An arrest based upon a criminal act committed in Colorado must be supported by probable cause. It would be folly to suggest that comity between the states permits a lesser standard for arrest when arrest is occasioned by the demand of a sister state for extradition.

Our opinion in Hithe v. Nelson, Supra, relied heavily on Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967). Kirkland reviewed the federal extradition statute, which closely parallels the Uniform Criminal Extradition Act, and concluded that the 'affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state.' In our view, the affidavit cannot be construed to charge the accused 'unless it sets out facts which justify a Fourth Amendment finding of probable cause.' Kirkland v. Preston, Supra. When extradition is sought by the demanding state after the affidavit is filed and the warrant issued, the accused stands charged with the commission of a crime and is, therefore, entitled to the protections afforded by the Fourth Amendment. U.S.Const. amend. IV. 'There is no reason why the Fourth Amendment, which governs arrests, should not govern extradition arrests.' Kirkland v. Preston, Supra.

The affidavit must, in all instances, contain sufficient information to uphold the issuance of an arrest warrant in the demanding state. People v. McFall, Supra. Thus, the affidavit in an extradition proceeding must set forth some of the underlying circumstances...