Whitehouse, In re

• Decision Date: 26 September 1984
• Citation: 467 N.E.2d 228,18 Mass.App.Ct. 455
• Parties: In re Kenneth Lee WHITEHOUSE, Petitioner.
• Court: Appeals Court of Massachusetts

Page 228

467 N.E.2d 228

18 Mass.App.Ct. 455

In re Kenneth Lee WHITEHOUSE, Petitioner.

Appeals Court of Massachusetts Barnstable.

Argued May 16, 1984.

Decided Aug. 7, 1984.

Further Appellate Review Denied Sept. 26, 1984.

William F. Spallina, Watertown, for petitioner.

Raymond B. Lamb, Asst. Atty. Gen., for respondent.

Before GREANEY, C.J., and BROWN and KASS, JJ.

KASS, Justice.

In response to a demand by the Governor of Colorado for the rendition of Whitehouse (the petitioner) to face criminal charges in Colorado, the Governor of Massachusetts issued a warrant for Whitehouse's arrest and his delivery to the custody of an agent of Colorado. A State trooper executed the rendition warrant on July 12, 1983, and Whitehouse, claiming that the demanding papers were deficient, petitioned for a writ of habeas corpus. G.L. c. 276, § 19. A Superior Court judge denied the petition and Whitehouse appealed. We affirm.

Whitehouse was first arrested without a warrant in April, 1983, on information that he stood charged in Colorado of crimes (theft and second-degree burglary) punishable by imprisonment for a term exceeding one year. G.L. c. 276, § 20B. See Colo.Rev.Stat. §§ 18-4-203 & 18-4-401 (1973). He was released on bail pending arrest on a Governor's warrant. G.L. c. 276, § 20D. When the warrant arrived some months later Whitehouse, by arrangement, voluntarily surrendered himself in the Superior Court sitting in Barnstable County and filed his petition for habeas corpus that day. He remained at liberty on $200 bail. After denial of his petition on August 16, 1983, by the Superior Court, Whitehouse moved to stay further steps in rendition pending determination of his appeal, and that motion was allowed by a single justice of this court. See Upton, petitioner, 387 Mass. 359, 364-370, 439 N.E.2d 1216 (1982).

1. Probable cause. The principle of Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975), that the Fourth Amendment to the United States Constitution requires a judicial determination of probable cause as a prerequisite to extended detention following arrest, applies with equal force to extradition arrests. Consalvi, petitioner, 376 Mass. 699, 700-701, 382 N.E.2d 734 (1978). Zambito v. Blair, 610 F.2d 1192, 1196 (4th Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1316, 63 L.Ed.2d 761 (1980).

Michigan v. Doran, 439 U.S. 282, 286-290, 99 S.Ct. 530, 534-536, 58 L.Ed.2d 521 (1978), however, made the point that the extradition clause of the United States Constitution (Art. IV, § 2, cl. 2), prohibits an asylum State from conducting its own probable cause hearing if the extradition documents on their face contain a statement indicating that a judicial determination has already been made in the demanding State. "[T]he proceedings of the demanding state are clothed with the traditional presumption of regularity ... [therefore], when a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination." Doran, supra, at 290, 99 S.Ct. at 536. See Commonwealth v. Sawyer, 389 Mass. 686, 695 n. 10, 452 N.E.2d 1094 (1983).

Michigan v. Doran also articulates the limited nature of a rendition proceeding in an asylum State.

"Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable."

Id. 439 U.S. at 289, 99 S.Ct. at 535. See Pacileo v. Walker, 449 U.S. 86, 87, 101 S.Ct. 308, 309, 66 L.Ed.2d 304 (1980) (per curiam); Alabama v. Battles, 452 U.S. 920, 924, 101 S.Ct. 3059, 3062, 69 L.Ed.2d 426 (1981) (Burger, C.J., dissenting from denial of certiorari); Upton, petitioner, 387 Mass. at 361, 439 N.E.2d 1216. See also Maldonado, petitioner, 364 Mass. 359, 362, 304 N.E.2d 419 (1973). See also the requirements of G.L. c. 276, § 14 (a part of our version of the Uniform Criminal Interstate Rendition Law). This is both because "[i]nterstate extradition was intended to be a summary and mandatory executive proceeding" and because "[a] governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met." Doran, supra, 439 U.S. at 288 & 289, 99 S.Ct. at 535.

In the present case, unlike Doran, the extradition documents do not, on their face, include an explicit judicial finding that there is probable cause to believe a theft and burglary have been committed and that Whitehouse committed them. This omission is not, as Whitehouse urges, fatal to the extradition proceedings. "[T]he fourth amendment, as applied to the states by the fourteenth amendment, requires only that, prior to an extradition, there in fact have been a finding of probable cause by a neutral judicial officer, not that the demanding papers, additionally, must say so .... [E]xecution of that warrant is not constitutionally invalid merely because the documents which were presented to the governor of the asylum state did not, at the time of their presentation, specify that the finding had been made." Zambito v. Blair, 610 F.2d at 1196. See also Michigan v. Doran, 439 U.S. at 296-298, 99 S.Ct. at 534-535 (Blackmun, J., concurring).

Whether the demanding State has made a judicial determination of probable cause may be determined from all the relevant sources which, in this context, include the extradition documents, the assertion by the Governor of the demanding State of a right to extradition, and an examination of the demanding State's criminal practice. See, e.g., Zambito v. Blair, 610 F.2d at 1196; Consalvi, petitioner, 376 Mass. at 702, 382 N.E.2d 734; Moore, petitioner, 2 Mass.App.Ct. 399, 401-402, 313 N.E.2d 893 (1974); Keefer v. Leach, 198 Colo. 101, 102, 597 P.2d 203 (1979). See also Wentworth v. Bourbeau, 188 Conn. 364, 371, 449 A.2d 1015 (1982) ("presumption of regularity .... accompanies a finding of probable cause in an arrest warrant signed by a judge").

The documents forwarded from Colorado which requested the rendition of Whitehouse include an April, 1979, arrest warrant and an affidavit in support of that arrest warrant. The affidavit is sworn to before a Colorado County Court judge whose jurat concludes the affidavit. The same judge then signed on the same day the warrant for Whitehouse's arrest. Under Colorado law "[a]n...