Seger v. Camp

• Citation: 576 S.W.2d 722
• Decision Date: 06 November 1978
• Docket Number: No. 60676,60676
• Parties: James M. SEGER, Petitioner, v. Eugene CAMP, Chief of Police, St. Louis Metropolitan Police Department, Respondent.
• Court: United States State Supreme Court of Missouri

Page 722

576 S.W.2d 722

James M. SEGER, Petitioner, v. Eugene CAMP, Chief of Police, St. Louis Metropolitan Police

Department, Respondent.

No. 60676.

Supreme Court of Missouri, En Banc.

Nov. 6, 1978.

Kemper R. Coffelt, St. Louis, for petitioner.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

This is habeas corpus. Petitioner filed a petition in this Court for habeas corpus relief, alleging that he is unlawfully restrained by respondent under an extradition warrant issued by the Governor of Missouri. A writ was issued by this Court on March 21, 1978. Petitioner was released on bond on or about March 23, 1978.

On September 14, 1977, petitioner, a resident of St. Louis County, Missouri, was arrested by the Sheriff's Office of the City of St. Louis pursuant to arrest warrants issued by a magistrate in South Carolina and affidavits executed by Lieutenant G. R. Wagner of Beaufort County, South Carolina. Said warrants charge petitioner with assault and battery with intent to kill and robbery while armed with a deadly weapon. Petitioner's attorney subsequently spoke to Lieutenant Wagner by phone, and was advised that the information in the affidavits was not of his personal knowledge, nor that of the victim or co-defendant, but came from an informant. Petitioner requested and received a hearing in the Governor's Office on the validity of the South Carolina extradition papers. Upon receiving notice that the Governor's warrant would issue, petitioner filed a petition for writ of habeas corpus in the Missouri Court of Appeals, St. Louis District, which was heard and denied.

In addition to copies of the arrest warrants and affidavits forwarded to the Governor of Missouri by the Governor of South Carolina, affidavits certifying the warrants, executed by the magistrate and clerk in South Carolina, and an extradition request by the Governor of South Carolina were forwarded. The Governor of South Carolina's requisition states in part:

"It appears from the attached documents, which are hereby certified to be authentic, and in accord with the laws of this State, that James Michael Segar (sic) stands charged with the crime of Assault and Battery with Intent to Kill and Armed Robbery in South Carolina; and it has been represented to me that such Fugitive was present in this State at the time of the commission of such crime, and that such Fugitive has fled from the justice of this State and has taken refuge in the State of Missouri."

The extradition is sought under the authority of Article IV, § 2, United States Constitution, and the enabling statute, 18 U.S.C. § 3182, which states:

"Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear * * * ."

Insofar as applicable here, § 548.031, RSMo 1969, provides:

"No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging * * * 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 made before a magistrate there, together with a copy of any warrant which was issued thereupon * * * . 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, judgment of conviction or sentence must be authenticated by the executive authority making the demand."

Judicial review of the issuance of a governor's extradition warrant is limited to determining whether the governor exceeded his authority in issuing the rendition warrant. This determination is made by reviewing whether all of the following facts appear properly from the demanding governor's requisition and the supporting papers:

(1) that the person is demanded as a fugitive from justice;

(2) that there is an indictment or affidavit produced charging the person demanded with having committed a crime; and,

(3) that the papers have been certified as authentic by the demanding state. State ex rel. Gaines v. Westhues, 318 Mo. 928, 2 S.W.2d 612 (banc 1928); Hagel v. Hendrix, 302 S.W.2d 323 (Mo.App.1957); Ex parte Arrington, 270 S.W.2d 39 (Mo.banc 1954).

Petitioner alleges that the Governor of Missouri exceeded his jurisdiction in issuing his rendition warrant because "the Affidavit executed by Lt. Wagner is deficient in that said Affidavit does not state any Facts in support of his assertion that your Petitioner committed the acts complained of and, further, that said Affidavits and Warrants are totally lacking any information whatsoever regarding the basis (informant's information) upon which Lt. Wagner obtained the Arrest Warrant," thus not enabling the Governor of Missouri to make an independent finding that probable cause existed for the issuance of the South Carolina warrants. The magistrate's warrants state that reasonable grounds were found for believing that petitioner committed the offenses charged based on the affidavits.

The issue of whether an independent determination of probable cause must also be made by the governor of the asylum state from the affidavits produced by the demanding state before a warrant may properly be issued is one upon which jurisdictions are split. Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967), and cases following it have held that for purposes of extradition, an affidavit does not succeed in "charging" a crime unless it sets out facts which justify a Fourth Amendment finding of probable cause by authorities in the asylum state. People v. Artis, 32 A.D.2d 554, 300 N.Y.S.2d 208 (1969); Wellington v. State of South Dakota, 413 F.Supp. 151 (1976). Other jurisdictions have held, however, that an extradition request based on an accusatory affidavit, along with an arrest warrant issued by a judicial officer, is sufficient under § 3182 although the charging document does not set out facts which support an independent finding of probable cause by the asylum state. Garrison v. Smith, 413 F.Supp. 747 (N.D.Miss.1976); People v. Woods, 52 Ill.2d 48, 284 N.E.2d 286 (1972); Smith v. Helgemoe, 369 A.2d 218 (N.H.1977); In Re Consalvi, 370 N.E.2d 707 (Mass.App.1977).

Those cases which hold that an independent determination of probable cause need not be made in the asylum state do so on the grounds that "(the) summary nature of extradition and the awareness that our Constitution protects equally citizens throughout the United States has led to the well-established rule * * * that it is not for courts in the asylum state to inquire into the constitutionality of a sister state's criminal justice system." Garrison v. Smith, supra, at 753. In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975), the Court held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest."...