Stewart v. Abraham

running mum on each count and then STEWART, consecutively. Robert on behalf

those sentences of himself and all others case, In had his 24-month appellant’s similarly situated, achieved im- aggregate sentence been posing a 12-month sentence on the bank consecutively to running fraud it count Lynne ABRAHAM, count, tax

the 12-month sentence on the Philadelphia County, individually have valid under result would been White, 24-month total though the capacity; even in her official District At have determined punishment would been torney’s Philadelphia Office of Coun on to his tax of- based conduct relevant ty, Appellants. appellant did not receive a

fense. Since No. 00-2358. greater than the maximum sen- sentence count, any and since consecutive tence on Appeals, United States Court of imposed ap- on sentences could have been Third Circuit. pellant to the 24-month sentence achieve Apprendi, violating without the rule Argued Nov. 2000. make no sense to deem that decision would Dec. 2001. because, simply an obstacle to his sentence Guidelines, availability under the of a

30-year statutory maximum on the bank count, § required

fraud 18 U.S.C. (select- 24 months punishment

the total months) to range

ed from the of 24-30 be count,

imposed concurrently to run 12-month sentence on the tax

with the way,

count. Either conduct relevant aggregate

the tax offense will result in an statutory greater

sentence than the maxi- However, ag-

mum for that offense.

gregate imposed ap- sentence is because offenses,

pellant has committed two maximum for one statutory

because

offense has been exceeded.1 above,

For the reasons set forth

judgment of the district court is affirmed. (Count 18) recognize Apprendi statutory

1. We that in in excess of the maxi- rejected argument case, the State's pending mum for that count. In the challenged upheld have been sentence should appellant's within sentences on each count is aggregate because the same sentence could statutory maximum for that count. by using imposed have been consecutive sen- analogy consecutive sentence from White Apprendi, 530 U.S. at 120 S.Ct. tences. Ap- therefore encounters no obstacle under Apprendi the vice in was the prendi. imposition single of a sentence on a count

OPINION OF THE COURT STAPLETON, Judge. Circuit This civil rights action mounts a Fourth challenge practice Amendment to a Philadelphia District Attorney’s Office parties which the have labeled “the rear- policy.” rest I.

Rule 5021 of the Rules of provides Criminal Procedure that a crimi- proceeding may by nal ... “be instituted an without a arrest warrant” there is subject cause to believe that the felony. has committed a Pa. P. R.Crim. arrest, 502. In the of a warrantless Eisenberg (Argued), Emily Ronald B. complaint “preliminary is filed and a ar- Kletter, Zimmerman, Fern District Attor- raignment” unnecessary is held “without Office, PA, ney’s Philadelphia, Attorneys 518(a). delay.” Pa. R.Crim. P. A refer- Appellants. for commentary ence in the of the Rules to County v. McLaughlin, Riverside 500 of Rudovsky (Argued), Ep- David Jules S.Ct. L.Ed.2d 49 stein, Kairys, Rudovsky, Epstein, Messing (1991), ordinary makes clear that under Rau, Cunningham, Bradley & Charles S. preliminary arraign- circumstances Bridge, Defender Association of Philadel- ment must be held within 48 hours. See Kreimer, PA, phia, Philadelphia, At- Seth 540(C). preliminary Pa. P. At R.Crim. torneys Appellees. for arraignment, a neutral “makes a determination of cause.” Pa. Fisher, Jr., Ryan, D. H. Michael William 540(C), P. 42 Pa. R.Crim. Cons.Stat. Graci, Suss, A. Robert Stuart Office of 540(C). § If he determines that Attorney Pennsylvania, Appeals of General exist, subject cause does not is dis- Section, Norristown, Legal and Services Otherwise, Id. is set and a charged. bail PA, Attorneys Amicus-appellant, for Attor- preliminary hearing date for a is fixed no ney Pennsylvania. General of days than nor than after “less more Winkelman, Nancy Stephen Shapiro, J. preliminary arraignment.” Pa. Schnader, Harrison, Lewis, Segal & Phila- 540(E)(1). If R.Crim. P. the Common- PA, delphia, Attorneys Amicus-appel- presents “prima wealth case” at facie lee American Civil Liberties Union of hearing, subject preliminary Pennsylvania. Pa. P. 543. If held over for trial. R.Crim. guilt

“a case of the defendant’s ROTH, preliminary and is not established at the hear- Before McKEE STAPLETON, granted, Judges. ing, Circuit and no ... continuance” is 1, 2000, April 1. On March order became effective on 2001. We Court Pennsylvania signed authorizing an order numbering system throughout use the current reorganization renumbering and of the Penn- opinion. this sylvania Rules of Criminal Procedure. This subject persons and All who have or in the charge is dismissed been will 542(D). subjected P. discharged. practice Pa. R.Crim. Un- future be to the and 544(a), charges der Rule are dis- policy [Philadelphia] “[w]hen of the ... preliminary hearing, ... missed ... at Attorney re-arresting, judicial without attorney for the Commonwealth authorization, persons criminal whose charges by approving, in reinstitute the charges by have been dismissed a Phila- writing, refiling complaint.” of a Pa. delphia Municipal Judge on based 544(a). P. R.Crim. a determination that the Commonwealth established, by lack had not reason of policy, challenged Under the rearrest prosecution, probable evidence or lack of Attorney, the District from time to time criminal trial. hold the case for when she concludes she has cause, reinitiates criminal injunction prohibited The District Court’s preliminary have been dismissed at a hear- “ordering the District from by subject rearresting refiling detention, re-arrest and without complaint pursuant authority authorization, any persons person 544. The Rules arrested is charge which has been dismissed then held to await new ar- Philadelphia Municipal judge at a raignment prop- 48 hours. or within Cash preliminary hearing of the failure because erty posted applied on the initial arrest is of the Commonwealth ... to establish against arraignment.2 at that the bail set prima cause or a facie case.” of a criminal proceeding This reinitiation appeal This followed. We will reverse. occurs without determination II. Attorney the District subject

cause to believe that the has com- charged Stewart was arrested and with felony. prima mitted Because no facie felony aggravated one count of the of as- presented case has been sault, and with misdemeanor counts of such cases and there because assault, simple recklessly endangering an- judicial finding has been no of person, possession other and of an instru- rearrest, prior pur- rearrests arrest, day ment of crime. One after his Attorney’s suant to the policy preliminarily arraigned Stewart was and challenged here as unreasonable seizures A preliminary hearing released on bail. under the Fourth Amendment.3 subsequently Philadelphia was held Mu- nicipal Court. At the conclusion of that PlaintiffiAppellee Robert Stewart hearing, presiding judge brought ruled that the this S 1983 action on behalf of presented Commonwealth had not similarly himself and others situated. The against felony granted District Court class certification Stewart enjoined Attorney Accordingly, the District count. from dismissed employing policy. felony aggravated the rearrest The certi- count of assault and fied class as was defined follows: scheduled Stewart’s case for trial on the Pennsylvania 2. The posted Rules of Criminal Proce- bail on an initial arrest to be credited specifically dure do not address the issue set bail result of a re-arrest. posed by imposition following of bail re- arrest. the record indicates that in Attorney's policy 3. The District rearrest is not 2000, May Municipal Court of Philadel- challenged here as violative of phia, agreement cooperation with the and, accordingly, present law we assume for Attorney’s the District Office and the Defend- purposes that it is consistent with that law. Association, policy permitting er instituted a remaining only. (quoting misdemeanor counts The S.Ct. 746 Boykin, Fenner v. Attorney prose- Assistant District who was 46 S.Ct. 70 L.Ed. 927 (1926)). cuting met, Stewart in the courtroom immedi- This standard cannot be said, ately felony charge reinitiated an identical “the threat to plaintiffs federally protected aggravated allegations rights assault. The ... [can be ad- by his complaint against dressed] the new were identical to those defense a single prosecution.” criminal complaint just Id. at had been dis- S.Ct. missed. Police re-arrested Stewart on the charge,

“dismissed” and detained him for In Younger, the plaintiff federal request- preliminary hearing. another Because ed that the District Court find unconstitu- Stewart was able to make the bail set tional the government law under which the preliminary arraignment, at his second he prosecuting thereby was him and foreclose jail approximately remained in two prosecution. case, his In this equitable weeks until his preliminary hearing second requested relief is not aimed at pros- state rights was held. Stewart filed this civil ecutions, but at legality of the re- § action under U.S.C. 1988 while he policy arrest pretrial and the detention of in custody awaiting prelim- was the second a class of criminal defendants. The issues inary hearing. here raised could not have been raised in

defense Stewart’s criminal prosecution, III. injunction and the sought would not bar prosecution. his argues The District first the District Court should have ab application We conclude that the Court’s exercising jurisdiction stained from its un Younger Pugh, Gerstein v. 420 U.S. Harris, Younger der the doctrine of (1975), 95 S.Ct. 43 L.Ed.2d 54 37, 746, U.S. S.Ct. L.Ed.2d 669 controls our resolution of the abstention (1971). The District Court decided not to issue here. The defendants in Gerstein abstain, and we conclude that it did not pursuant were arrested prosecutor’s to a abuse its in doing discretion so. information. applicable Under Florida ' statutes, rules and prosecutors could Younger was arrested under a state charge noncapital by offenses information criminal allegedly statute which violated a preliminary hearing without or leave of right speech his to free under the First previously court. The Florida courts had and Fourteenth Amendments. While the that prosecutor’s filing held of an infor- state pending, Younger were still suspect’s mation right “foreclosed the to a enjoin filed an action in federal court to his hearing.” Id. at 95 S.Ct. prosecution. agreed The District Court that vagueness statute was void for and overbroad in violation of the First and Several arrestees detained under this enjoined Fourteenth Amendments and procedure against filed class action coun- Attorney from enforcing ty it. See officials in alleg- federal District Court id. at Supreme S.Ct. 746. The they that “a right had constitutional held, princi- Court reversed. It based on the issue of ples equity federalism, and that a requesting feder- cause and in- declaratory and enjoin al court should not junctive state criminal relief.” Id. at 95 S.Ct. 854. proceeding showing without a argued the The State of Florida Younger plaintiff would irreparable injury suffer compelled abstention because federal ac- great “both and immediate.” Id. at 91 tion would proceedings interfere with state prompt properly The District Court exercised grant the state by requiring contrary hearings jurisdiction over this matter. probable cause procedures. The and state’s own rules rv. unanimously rejected argu-

Court stated: ment. Court certification, To obtain Stewart was re- correctly held that District Court purported class quired to show claim for relief was respondents’ 23(a) prerequisites met the four of Rule restrictions on equitable barred and at least one of the elements of Rule prosecu- in state federal intervention 23(b). Baby Casey, Neal v. 43 F.3d v. Harris. The Younger tions[ ] [under] (3d Cir.1994). 23(a) 48, 55 states: Rule at the state injunction was not directed members of a class One or more such, only but prosecutions representative parties sue or be sued as without pretrial detention legality (1) only all class is so on behalf of that could judicial hearing, an issue joinder numerous that of all members is the criminal not be raised in defense of (2) impracticable, questions there are prelimi- to hold prosecution. The order (3) class, law or fact common to the nary prejudice could not hearings representative claims or defenses trial merits. conduct of the on the parties typical of the claims or de- (citations 9, 95 Id. at 108 n. S.Ct. (4) class, represen- fenses of the and added). omitted, find the emphasis We parties fairly adequately tative will to that be- analogous situation before us protect the interests of the class. in Gerstein. Supreme fore the 23(a). Fed.R.Civ.P. The District also find the Court’s subse- We argues that Stewart’s claim fails to meet to be quent characterization of Gerstein (1) (2) commonality, numerosity, Sims, 442 helpful here. In Moore v. (3) typicality class required elements (1979), 2371, 60 L.Ed.2d 994 99 S.Ct. 23(a). certification under Rule She con- from the distinguished Gerstein representative cedes that the named class following ground: case before on the adequately represent will the interest misplaced. on Gerstein is The reliance required absent class as is under members challenge pre- That involved a 23(4). Rule prosecu- trial on the basis of restraint 23(b)(2) provides Rule for class certifica- alone, without the ben- tor’s information 23(a) requirements tion where the of Rule a determination of efit of opposing party are satisfied and “the by judicial officer. This Court class has or refused to act on acted properly the District Court held that class, grounds generally applicable to the by found that the action was not barred thereby making appropriate injunc- final injunction was not Younger because declaratory corresponding tive relief or re- proceeding to a state and addressed respect lief with to the class as whole.” with the therefore would not interfere 23(b)(2). Fed.R.Civ.P. “The prosecutions criminal themselves. preliminary hearings order to hold Numerosity A. the conduct of the prejudice could not merits.” trial on the plaintiffs No minimum number of ac (quoting required 99 S.Ct. 2371 to maintain suit as class U.S. at Gerstein, tion, generally plaintiff if named at 108 n. 95 S.Ct. but 854). potential precisely That the situation here. demonstrates that the number

plaintiffs prong 'prima exceeds first of make a case. She insists that 23(a) Rule met. been James these “dissimilar” situations cannot be in- al., Wm. Moore et Moore’s Federal Prac cluded in the instant class certification. (Matthew § tice Bender 3d 23.22[3][a] argument this recog- fails to ed.1999). Here, that, parties both concede that, nize despite the differences that un- injunction, prior to the the District Attor doubtedly case, exist from case to common ney had re-arrested defendants under issues of law predominate. and fact pursuant disputed Rule 544 policy. class is defined such that each class mem- Forty-one of those defendants had been ber had criminal discharged his/her discharged for lack of evidence and the officer and was then re-ar- resulting failure to establish solely upon rested based the exercise of cause. The of class number members will prosecutorial discretion, any judi- without policy increase further if the continues cial determination of cause for Accordingly, plaintiffs satisfy force. the arrest. The District specifically 23(a). numerosity requirement of Rule enjoined persons re-arrest against whom have been dismissed at the Commonality B. preliminary hearing because of failure to concepts “The of commonality establish cause or a prima facie typicality and broadly defined and tend Therefore, case. “at question least one merge. Both criteria seek to assure fact or law” is common to each member of practically that the action can be and effi this prospective class.

ciently maintained and that the interests of fairly adequately the absentees will be C. Typicality represented. Despite similarity, their typicality inquiry centers on however, commonality typicality are whether the interests of plain the named requirements distinct under Rule 23.” align tiffs with the interests of the absent (internal Baby Neal Casey, 43 F.3d at 56 al., members. See 5 James Wm. Moore et omitted). citations commonality “The re 23.24[1]; § Moore’s Federal Practice New quirement will be satisfied the named Pierce, Lynch, ton v. Merrill Fenner & plaintiffs share at least question one of fact Smith, Inc., 259 F.3d grievances or law with the prospec (3d.Cir.2001) (“The typicality inquiry ... added). (emphasis tive class.” Id. centers on whether the plaintiffs’ named Attorney argues

The District that cir- markedly individual circumstances are dif- among cumstances potential class ... legal theory upon ferent or which vary to members such an extent that there the claims are based differs from that is no commonality. upon She reminds us that which the claims of other class mem- based.”) (citation charges defendants can perforce have their dis- bers will be omitted). preliminary hearing missed at for challenging “[C]ases the same many different reasons. The District At- unlawful conduct which affects both the torney argues discharge also that a for plaintiffs putative a named and the class prosecution, lack of usually satisfy which the typicality requirement government are dismissed irrespective varying patterns because the fact produce necessary cannot underlying Baby witness and the individual claims.” (citation continuance, Neal, omitted). grant the court does not 43 F.3d at 58 discharge differs from a for a lack of evi- “Factual differences will not render a dence, government in which atypical fails to claim if the from the claim arises 228 Gerstein, 112, at 95 of con- crime.” 420 U.S. S.Ct. practice or course

same event or perspective, 854. From the individual’s rise to the claims of gives duct that members, provides if it that accommodation that he or is based class [absent] may not arrested in the absence of theory.” Hoxworth v. she be legal the same Co., Inc., Blinder, may cause and not be detained 980 F.2d Robinson & (3d Cir.1992) magis- (quoting 1 Herbert for over 48 hours without neutral 923 Actions trate’s review of that cause deter- Newberg, Newberg B. on Class (2d ed.1985)). Gerstein, Here, at mination. See 420 U.S. § at 168 Stewart 3.15 854; Riverside, Attorney’s County re-arrest challenges the District S.Ct. Conversely, constitutionality poli- 111 S.Ct. 1661. and the of that U.S. policy perspective, from the state’s that accom- cy at the heart of each of absent provides modation that a state arrest claims. members and detain an individual without a warrant 23(b)(2) D. Rule provides if it has cause and for review of the cause determination 23(b)(2) designed primari Rule by party within 48 hours of the neutral ly to authorize class action treatment arrest. Id. It is the function of the review- us that seek cases like the one before neutral to determine Neal, injunctive Baby relief. See 43 F.3d “whether the facts available to the officers Moreover, generally recog at 58. it is at the moment of the arrest would ‘war- rights seeking nized that civil actions relief rant a man of reasonable caution in the putative like the class on behalf classes belief that an offense has been commit- normally requirements of Rule meet Ohio, 89, 96, ted.” Beck v. 379 U.S. 23(b)(2). (“[T]he injunctive See id. at 59 (1964) (quoting S.Ct. 13 L.Ed.2d provision ‘designed specifically class was States, 132, 162, Carroll v. United rights seeking for civil cases broad declar (1925)). 69 L.Ed. 543 S.Ct. atory injunctive for a or relief numerous amorphous and often or unascertainable The record does not establish that Stew- omitted). ”) (citations persons.’ class of art or of the class was de- member Finally, Baby Neal teaches that courts prived anything that this constitutional sought should look to whether “the relief It guarantees accommodation them. does by plaintiffs the named benefit the [will] initially not establish that the officer ar- Here, entire class.” Id. at 59. Stewart (or any resting Stewart member of the injunctive rights seeks relief a civil class) rearresting or the officer Stewart sought claim and the relief could benefit (or class) any member of the lacked infor- the entire class. mation at the time of the arrest that would Thus, we conclude that the District “warrant a man of reasonable caution in certi- Court did not abuse its discretion the belief that an offense had been com- fying Ac- litigation this class action. mitted.” Id. Nor does the record establish cordingly, turn to merits of the we now class) (or any that Stewart member of dispute. for a total of more than 48 was detained hours without a review of the V. magis- a neutral cause determinations facts should have ended the applicable Fourth Amend trate. These summary judgment “represents necessary ment law a accom matter and mandated Pennsylvania in right modation the individual’s to defendants’ favor. The between probable cause for arrests liberty duty requiring and the to control law State’s 48 tent a that preliminary arraignment finding within between the Common- that hours satisfies all the Fourth Amend wealth has failed to a prima establish facie and there is no reason to requires, ment preliminary hearing case at the and the fully complied that law was not believe probable existence of cause for a second v. Abdul- with here. See Commonwealth arrest.

Salaam, 342, 347-48, 544 Pa. 678 A.2d (Pa.1996) (noting Pennsylvania’s

n. 10 First, it is not at all clear to us through prelimi pretrial process up “probable cause” standard and the nary arraignment addresses the constitu “prima case” standard under Penn facie requirements tional of Gerstein and Coun sylvania require law the Commonwealth to Riverside).4 ty of provide the same level of assurance that deprive subject Stewart asks us to do is to

What committed a crime. The Pennsylvania right of its to reinitiate different terms chosen to describe the in proceeding criminal accordance with a Commonwealth’s burden at the time of generally applicable process that is entire- preliminary arraignment arrest and and its ly appli- consistent with dictates burden at time of the cable Fourth Amendment law. There is hearings, suggest to us that facie aware, precedent no of we are which how- require case standard was intended to dif ever, proposition for the that the federal greater ferent and guilt. assurance of prohibits Constitution the reinitiation of a cause,” course, speaks “Probable of proceeding criminal in such a manner probability “prima terms of a while jeopardy has not attached where double case” Pennsylva has been defined pattern prosecutorial of and no harass- nia Court as evidence “such that alleged.5 ment has been court, presented at the trial in and ac argument predicated

Stewart’s on the true, cepted judge would be war proposition that the federal Constitution in letting go jury.” ranted the trial to the requires Pennsylvania give preclusive to Wojdak, Commonwealth v. 502 Pa. disposition municipal to the effect (Pa.1983) (emphasis 466 A.2d preliminary hearing at a unless and (citations omitted). Thus, original) while finding until there is a cause in the Commonwealth need not convince the subsequent judicial proceeding. This preliminary guilt beyond hearing judge of proposition arguments novel and the ad- doubt, it must nonetheless reasonable support unpersuasive. vanced present prelimi evidence at the admissible nary hearing that warrant a reason

Contrary repeated would Stewart’s asser- tions, nothing inherently jury finding there is inconsis- able each of the elements of rearrest, course, commentary have 5. to Pa. P. 544 Stewart’s would As R.Crim. the Fourth had it violated Amendment been explains, held "courts have made without cause. The same prosecution that the reinstitution under [of respect would be true with to an arrest of rule] [when] be barred the Common- member of the class without cause. repeatedly wealth has rearrested the defen- show, however, attempted Stewart has not dant in order to harass him....” Pa. R.Crim. attorney the district lacked (citing Thorpe, P. 544 cmt. Commonwealth v. anyone time or of his arrest (Pa.1997); Com- 549 Pa. 701 A.2d 488 reveal, else’s. The record does not for exam- Shoop, Pa.Super. monwealth v. ple, presented what information was (Pa.Super.1992)). pattern No A.2d 351 pre- neutral at Stewart’s second alleged here. harassment liminary arraignment and was there found constitute cause. 230 (Pa.1997) (defining probable It 492 cause Id. is by that standard.

the offense ground suspicion sup- or to find “a reasonable surprising thus not ported by of circumstances sufficient to war- that the standard recognizing cases ordinarily prudent case man in the prima rant an probable cause and facie conceptually believing party distinct. See that the same situation standard 6, offense”). Cartagena, By way Pa. guilty v. 482 of con- Commonwealth (Pa.1978) 350, (plurality opin- trast, preliminary A.2d at a presiding ion) cause had exist- (finding that that hearing must find the Commonwealth proceed- of criminal ed the institution un- presented prima for a has not facie case had not ings, though prima legally produced less it has information facie established); Commonwealth been substantiating each ele- admissible form 797, (Pa.Super.1998) Days, 718 A.2d ment of the offense. See Commonwealth affirming of that (stating Verbonitz, in the context Buchanan v. 525 Pa. ex rel. prob- (Pa.1990) magistrate properly determined (holding 581 A.2d a search war- cause existed to issue able upon relied in- where the Commonwealth on a “[p]robable rant that cause is based hearsay prima admissible to establish prima not a facie finding probability, case, it its burden of did meet facie activity”); Common- showing of criminal producing preliminary hearing at the “le- Scott, Pa.Super. 420 A.2d wealth v. competent evidence to demonstrate gally (“It un- (Pa.Super.1980) would be the existence of facts which connect the of costs require payment reasonable charged”). accused to the crime every time the Commonwealth wanted Second, to the the database available finding prima of lack of challenge a facie prosecutor is different from that available a hint there had not even been case when prima judge determining facie failure to show of harassment or prima ease can case issue because facie cause.”). only legally admissible exist on the basis “prima “probable cause” Even at the time presented evidence court standards, are coterminous case” facie hearing, probable cause preliminary while however, would nevertheless conclude we all can exist on the basis of the reliable nothing inherently inconsis- there prosecution information known to the a failure of the Common- tent between arrest. The District the time the second prima case at wealth to establish a facie notes, example, that the most hearing and the existence preliminary frequent reason for a re-arrest is the fail- for a second arrest. The appear ure of a witness to who the Com- may con- database that the Commonwealth pro- can monwealth has reason believe prob- there is determining sult in whether important guilt. evidence of In such vide arrest is different able cause for second situation, a determination that a than, from, comprehensive more presented is not case has not been is limited database to which consideration inconsistent with the existence of hearing. Moreover, cause for immediate re-arrest. First, given preliminary hearings are often determining whether investigation held while the of the crime is probable cause for a second arrest there is any continuing, frequently it will be the case prosecutor is entitled to consider gain will addition- information known to him that a reason incriminating knowledge al evidence ably prudent might regard man as reliable. Schmotzer, prelimi- within minutes or hours after McKibben v. 700 A.2d nary hearing concludes. The District there constitutional mandate that do so. injunction bars the District Attor- Court’s

ney reinitiating charges from ever without What Stewart asks us to do is to take prior approval, no matter how Pennsylvania hearing process that is not incriminating much additional information constitutionally required and fashion a fed- investiga- she learns in the course of her giving eral constitutional rule collateral ef- tion. magistrate’s fect ruling to the at that hear- ing so as to bar the state from exercising (cid:127) however, fundamentally, More even if right its to arrest when it in good believes necessary inconsistency there some were faith that it cause. pro- This finding between posed appears solely rule to be based present prima at failed case facie appeal an that respect be accorded the preliminary hearing and the existence of authority of municipal judge pre- who rearrest, we still would at the preliminary hearing. sides While anything to find be unable the United could, Pennsylvania chose, if it so accord that requires States Constitution a state to respect such judge’s prima to a case facie give preliminary collateral effect to a hear- ruling, nothing we find in the United ing finding preclude so as to from state requires States Constitution that it to do reinitiating prosecution in the normal so.7 concluded, manner. As the District Court principles judicata traditional of res would VI. appear not to require that collateral effect judgment of District Court will given preliminary disposi- to a be reversed, be and this matter will be re- tion,6 case, if that but even were not the proceedings manded for further consistent free, Pennsylvania would be within the opinion. with this of process, limits due to fashion its own preclusion. rules of McKEE, Judge concurring Circuit part, dissenting part. In and summary, Pennsylvania’s require- prosecution may ment that a criminal II, III, join I sections and IV of the go presents forward unless the state evi- majority opinion, I disagree however with constituting dence a prima case of majority’s facie conclusion that the District guilt before a time Attorney’s implementation of Pa. R.Crim. preliminary hearing necessary is not to P. 544 is constitutional.1 I therefore dis- satisfy requirements of the Fourth majority opin- sent from section V of the Amendment County under Gerstein and ion. Pennsylvania

Riverside. If im- chooses to I. is, pose requirement, this additional there course, impedi- no federal constitutional Under Pa. R.Crim. P. the Philadel- Nor, course, doing phia ment to its so. Attorney’s adopted Office has Cartagena, clearly 6. See ruling Commonwealth v. 482 Pa. not an un- (Pa.1978) (holding 393 A.2d 350 that rearrest reasonable one. proper though charge was even the same was notes, majority 1. As the prior preliminary hearing). dismissed at Pennsylvania reorganiz- entered an order early stage renumbering 7. Given the at which a Rules hearing occurs and the fluid state of affairs of Criminal Procedure on Mach frequently stage, Pennsylva- my colleagues, exist Like I use the current number- respect ing system throughout nia's choice not to accord such this dissent. felony charged complaint in a with re-arresting defendants some practice á warrant is detained Judge arrested without Municipal immediately after That prelimi- pending preliminary arraignment. felony charges at a discharged has usually occurs discharges preliminary arraignment are based hearing. The nary arrest. that the defen- 24 hours of the defendant’s judge’s conclusion within upon the 518(a). supported See Pa. R.Crim. prelimi- is not P. At the dant’s continued detention Commissioner, The re-arrests do not a Bail by probable nary arraignment cause. evidence, or authority,” additional in- functioning “issuing result from as the An Dis- Assistant in- changed rights, circumstances. forms the defendant his/her restamps the same Attorney merely counsel, appoints trict cluding right the to originally that was complaint necessary.3 criminal defendant is counsel immediately The defendant is then complaint filed. copy of the criminal given also charges that have re-arrested on the same accepted filing, Pa. that has been judge just though a been dismissed even 540(a), 520, and unless a P. R.Crim. offered in just that the evidence ruled represented by counsel defendant who is charges is insufficient support of the those hearing, the Bail preliminary waives a 544 does not re- support them.2 Rule Commissioner/issuing authority must also practice, legitimize nor can quire this hearing before preliminary set a date for a practice. this Philadelphia Municipal judge. Court “no than 3 nor more

That date can be less days preliminary arraign- than 10 the after Applicable Rules of II. Criminal 540(e)(1). Pa. P. ment.” R.Crim. Procedure. 518(a), a If the is able to establish Pa. P. defen- Under R.Crim. felony County charge who is case for a Philadelphia dant attempted even My colleagues suggest the decision to has not 2. by relying justify practice on some un- may additional this have been based on re-arrest specified of additional information prosecutor database learned from information supported that would have the dismissed some "database” and that this information only charges judge had known about if the may judge have been known when the it. discharged felony charges. Maj. Op. ("The database that the Common- at 230 Pennsylvania Assembly General In determining whether wealth consult in created the office of Bail Commissioner for a second arrest is there is cause for Municipal Philadelphia Court. See Pa. than, comprehensive different from and more 1123(a); Murray §Ann. see also Cons.Stat. is limited the database to which consideration Silberstein, (3d Cir.1989) 882 F.2d preliminary hearing.”). It not at all posi- (noting Commissioner creation Bail is, what data base where it came clear this legislature). In tion from, what it contains. or 540) (now former Rule 140 Rule only thing "da- that is clear about this require Pa. R.Crim. P. was amended to that there is no mention of it in tabase” is arraign- "issuing authority” at a record, prosecutor did not and that ment to determine cause. Pa. any such "database” have time to consult 540(c). P. This amendment to Rule R.Crim. Stewart was re-arrested. That re- before response County adopted 140 was judge as soon as the arrest here occurred McLaughlin, Riverside v. felony charges. (1991), dismissed the Stewart was S.Ct. 114 L.Ed.2d 49 wherein courtroom, apparently arrested in the probable cause Court held that a just judge generally had ruled that in front of the who must be made within determination County, support Philadelphia there was no cause to his 48 hours of arrest. In Moreover, authority issuing commissioner. charges. bail detention on those 500(H). ensuing preliminary hearing, the Mu- R. Crim. a warrant for nicipal Judge orders the defendant the defendant’s only re-arrest would issue held for trial the Court of Common if the approved court If submission. If felony charge(s). Pleas on the the*Mu- the initial dismissal of charges in the Mu- nicipal judge felony dismisses all nicipal Court finding was based on a of no charges lack due to of evidence or lack of cause, the preliminary hearing prosecution only so that misdemeanor following any re-arrest was scheduled be- remain, the defendant is tried on fore a of the Court of Common charges Municipal those misdemeanor cases, however, Pleas. In all a re-arrest 543(a), 1001(A). Court. See Pa. R.Crim. P. proceed only could judicial after a officer Municipal If the Judge pre- the had approved a resubmission and deter- liminary hearing concludes that the Com- mined that there was indeed monwealth has not established a cause for the re-arrest. charges, judge case on of the the discharge 1, 2000, must the defendant a January unless con- On the current version pursuant granted request (then tinuance is to a of Pa. P. 544 R.Crim. Pa. R. Crim P. “supported by grounds.” 143) reasonable went into effect. provides: The Rule 542(D).4 Pa. R.Crim. P. Reinstituting Charges Following Under the Rules of Criminal Procedure Withdrawal or Dismissal. in Pennsylvania January effect before (A) charges When are dismissed or 2000, Municipal judge if a dismissed at, to, withdrawn or prior a preliminary charges preliminary criminal hear- hearing, attorney the for the Common- ing due to lack of evidence or lack of wealth charges by reinstitute the prosecution, attorney for the Common- approving, in writing, refiling of a charges by wealth could reinstitute sub- complaint with mitting complaint issuing authority a new criminal and an who permitted affidavit of dismissed judge cause to a or the withdrawal the Court of Common Pleas. See Phila. charges. of the majority Attorney notes that the prosecutor explanation offer an for the suggests that the most common reason defen- appear, witnesses failure to and assumes immediately dants are pre- re-arrested at the judge adequacy that a will evaluate the liminary hearing important is because wit- explanation. This is no more than is appear compromising nesses fail to thus required lawyers in criminal and civil ability Commonwealth’s to establish country everyday. courtrooms all over this Maj. Op. cause. See at 230. Philadelphia County Prosecutors in are as prosecution was not the case pre- here. The elsewhere, lawyers able as the and I fail to against sented all of the evidence Stewart it why Attorneys see the Assistant District to, judge wanted and a ruled that evidence Philadelphia required request are not to a felony charges. insufficient to detain him on explanation continuance and offer an for a appear just failure 542(D) witnesses to like other specifies Inasmuch as Rule that a lawyers expected to. This would allow prosecutor may request a continuance judge gauge a to the efforts that were "supported by grounds,” made reasonable I fail produce why the witness and also afford an imprisonment to see re-arrest and opportunity judge for the requesting rather than to decide if bail a continuance is the response favored should be continued or reduced if the to a witnesses failure con- appear. granted. Requiring prosecutor tinuance is Under the to re- current quest practice a continuance rather than a defendant can be re-arrested and automati- cally resorting expediency jail of deten- detained in even if the witness did not places appear tion no burden whatsoever on the because of some dereliction on the merely requires Commonwealth. It part prosecutor. Attorney prevents It the District

(B) a com- tions. refiling of Following the (A), pending a defendant sec- detaining from paragraph plaint pursuant hearing judge where a preliminary ond deter- the Commonwealth attorney for felony charges holding de- dismissed the preliminary mines that prevents the custody. It also fendant by a different issu- conducted should be prosecutor’s assessment attorney shall file authority, reversing outweighing and clerk of courts from with the motion Rule 23 cause. I do not judge, or determination president requesting is all that ex- request to do that president think designated traordinary. issuing authori- assign a different judge, hearing. ty to conduct majority’s declaration Accordingly, set forth reasons motion shall injunction bars District Court’s “[t]he issuing authority. requesting a different reinitiating from ever the District Nothing in the text of P. 544. Pa. R.Crim. judicial approval, no prior without re-arrest the defendant’s requires that rule incriminating how much additional matter prelimi- the second completion of pending course of her she learns information from practice That arises nary hearing. Maj. simply wrong. investigation,” is here, not from at issue specific policy (emphasis original). Op. at 230 of the Rule. language Moreover, the District is is majority that Stewart believes The enforcing the district arguing that even Pennsylvania of its deprive asking us “to major- injunction has the effect the court’s proceeding” a criminal right to reinitiate it; In nor could she: dis- ity assigns to felony charges at a discharge of following Attorney’s the District cussions between Maj. hearing. Op. at 228. preliminary Office, Phila- Defender Association of “[tjhere no that majority concludes The Municipal delphia, Philadelphia and the aware, ... are for which we precedent of Court, Attorney initially pro- the District federal Constitu- proposition un- prosecutions be reinitiated posed that of a criminal the reinitiation prohibits tion charges by simply refiling der Rule a manner where double proceeding in such Municipal immediately after Court pattern and no not attached jeopardy has re-arresting the defen- dismissal without has been al- harassment prosecutorial policy, Pursuant to that the refiled dant. framing that of the Id. leged.” for a have received a new date case would the relief Stewart is issue mischaracterizes preliminary hearing and the defendant court’s or- as the district seeking as well subpoena appear to have received would enjoined only district court der. The date. For reasons unknown on that new “ordering Attorney from the re- us, Defender Association and to detention, judicial au- without and arrest rejected proposal. Municipal Court thorization, persons any charge on April since the Dis- Accordingly, by a Philadel- dismissed which been Attorney has ordered some defen- trict prelimi- at a phia Municipal Court judi- no additional dants re-arrested with failure of the nary hearing because probable cause under cial determination ... to establish prosecutor simply The refiles Rule 544. case,” and id. cause or a are and those defendants charges identical asking us to do. is all Stewart custody to immediately taken into await refiled arraignment on prose- new injunction preclude does not charges that are identical cutions; unauthorized deten- precludes certain, judge.5 just ing a warrantless arrest under been dismissed have Op. resulting at 4. limited circumstances. The com- Dist.

promise the necessary achieves balance Prohibits The Fourth Amendment III. between enforcement and law individual Re-Arrests. These liberty policeman’s “a because on-the- pro- scene assessment attempts Fourth Amendment legal justification arresting per- vides against unreasonable restrictions guard crime, suspected son of a and for a brief sup- liberty by requiring that an arrest be period of detention take the administra- that, cause, by probable where ported Gerstein, steps tive incident to arrest.” determine if possible, neutral 103, 114, 420 U.S. 95 S.Ct. 43 L.Ed.2d Thus, in Katz v. probable cause exists.6 States, referring to the threshold United showing needed for a search under the The defendants Gerstein were arrest- stated, Amendment Fourth prosecutor’s to a pursuant ed information. “searches conducted outside applicable Under Florida rules and stat- by judge process, prior approval without utes, prosecutors charge could noncapital un- magistrate, per se unreasonable or by information prelimi- offenses without a subject only the Fourth der Amendment — nary hearing or leave court. State specifically few established well- to a previously prose- courts had held 347, 357, exceptions.” 389 delineated of an filing cutor’s information “foreclosed (1967). 507, 19 L.Ed.2d 576 More 88 S.Ct. right suspect’s the to a hear- century Supreme half a ago, than the ing”. courts had also held ha- State declared, necessary provide the “[t]o Court corpus only challenge was available to beas security against intrusions unreasonable probable the cause for pursuant detention individuals, upon private lives of the “exceptional cir- an information under of the Fourth Amendment re- framers 106, Id. at 95 854. cumstances.” S.Ct. judicial processes adherence to quired result, person by charged “As a informa- possible.” Trupiano v. wherever United tion could detained for a be substantial States, 699, 705, 1229, 334 92 68 S.Ct. period prose- on the decision of solely (1948) added), over- (emphasis L.Ed. On appeal, cutor.” Id. on grounds by ruled other States v. United issue as follows: framed the “whether Rabinowitz, 430, 339 U.S. 70 S.Ct. person and held for trial under arrested (1950). L.Ed. 653 constitutionally prosecutor’s information is judicial v. determination Pugh, prob-

In Gerstein 420 U.S. entitled to a (1975) liberty.” pretrial 43 L.Ed.2d 54 the Su- for restraint of S.Ct. able cause 104, 95 preme Court addressed the inherent ten- Id. at S.Ct. 854. Stated another was, protecting way, person between an lib- issue “whether a sion individual’s hand, held erty the one and real world arrested and for trial on an informa- judicial of law on the oth- tion is to a determination necessities enforcement entitled at probable The Court the Fourth cause for detention....” Id. er. concluded that by 854. Amendment resolves that allow- tension S.Ct. Amendment

5. It not clear how the District 6. The Fourteenth extends guarantee against un- immediately Fourth Amendment's who re-arrested decides will be search or seizure to the manner, reasonable states. this be. and who will not Ohio, 643, 655, Mapp 367 U.S. S.Ct. (1961). 6 L.Ed.2d 1081 cause actually received analysis of that Stewart began its The Court magistrate. hearing before a neutral the aforementioned by discussing question However, proverbial “rub.” from the therein lies the that arise limitations practical above, magistrate that neutral enforcement. As set forth of law practicalities no there was determined Court observed: justify continued re- cause Stewart’s rights of individual protection Maximum Yet, despite this determi- straint. requiring magis- could assured be it, nation, spite Stewart perhaps justification of the factual trate’s view Rule immediately re-arrested under arrest, was require- but such prior to solely upon prosecutor’s cer- 544 based an intolerable constitute ment would Therefore, although filing. tification and legitimate law enforcement. handicap have initial arrest well been expressed a Stewart’s Thus, while ob- by an officer’s on-the-scene arrest war- occasioned the use of preference for complaint, in a feasible, or averments has never invali- servations rants when not so circumstances after the arrest are by probable supported dated an arrest extraordinary prosecutor’s as to allow the officers failed solely cause because justify cause to re- assessment to secure a warrant. arrest if a neutral determines 113, 95 420 U.S. at S.Ct. support is no cause to that there .requirement the warrant relaxation that re-arrest. to circumstances tightly tethered justify relax- sufficiently compelling to the constitu case illustrates Stewart’s by a in review protection endemic Attorney’s tional infirmities of the District exception- such magistrate. neutral When above, policy. As noted the victim of exist, on- policeman’s “a al circumstances pre charged assault testified Stewart’s the-scene assessment liminary hearing, and the Commonwealth arresting a justification for provides legal support evidence to offered no other crime, for a brief person suspected of felony. After that witness charged administra- to take the period of detention testify, Municipal Judge ruled Court steps to arrest.” Id. tive incident only that could be held for court Stewart necessity allowing police officer assault, and dismissed the on misdemeanor unfold “on-the- to react as circumstances felony Inasmuch as aggravated assault. not, however, minimize the scene” does permitted to make credibili judges are not liberty, per- nor importance suspect’s of a preliminary hear ty determinations manently entitlement degrade his/her Municipal ing stage, it is clear that the result- having judicial officer review testimo Judge the victim’s was, fact, if it ing arrest to determine ny testimony was insuf concluded suspect custo- “Once reasonable. a matter of law to sustain a ficient as justifying dispens- ... dy, the reasons [ ] aggravated assault even if conviction judgment magistrate’s neutral with the testimony were true. See Common rea- evaporate_And, while the State’s McBride, Pa. 595 A.2d wealth v. subside, summary action taking sons for (Pa.1991). Yet, though even determina- suspect’s need for a neutral testimony of the victim was ruled that the signifi- tion of cause increases on the to hold Stewart not sufficient cantly.” Id. at 95 S.Ct. 854. assault, charge aggravated of felonious course, immediately re-arrested for is, was a bit Stewart The situation here jailed for at least very charge, in Gerstein. different than the situation two weeks. Stewart was re-arrested preliminary arraignment more and the (apparently before he could leave the standard at the preliminary hearing. The courtroom), jailed and thereafter because majority agrees that dismissal at pre- post he could not bail second time. liminary hearing is based on a failure to different, meet a and substantially higher Nothing on this record establishes threshold, than that pre- established at a “exigency” justify that re-arrest. Al- liminary arraignment. Maj. Op. See at 229 my though colleagues postulate that (“The Pennsylvania requiring law prosecutor’s decision to re-arrest was cause for arrests and a preliminary ar- upon gleaned based information from some raignment within 48 hours satisfies all that “database,” sort of secret it is clear that the Fourth requires, Amendment nothing on this record rises to the level of there is no reason to believe that law was practical necessity that allows law enforce- here.”) fully complied with (citing upon ment officers to act on-the-scene Abdul-Salaam, Commonwealth v. 544 Pa. judgments they required to make 342, 347-48, (Pa.1996)). 678 A.2d n. 10 patrolling public while This streets. A close examination pre- of the nature of especially true when one considers liminary hearings and preliminary arraign- judge has heard all of the evidence the ments illustrates my the weakness of col- prosecution had to offer and concluded leagues’ analysis. legally the Commonwealth could not felony charges. detain Stewart on above, As noted Pa. R.Crim. P. 540 es- Gerstein, supra. procedures tablishes certain that an issu- ing authority am, course, prelimi- must follow at I aware that Stewart’s nary arraignment following a warrantless substantially detention under Rule 544 was requirement arrest. It includes a than that shorter which troubled the Su- issuing authority determine if preme there is Gerstein. I also realize probable cause for the arrest. If preliminary that the second hearing must found, issuing cause is authority must promptly be held after re-arrest under inform the defendant of filed County Rule 544. See Riverside v. him/her, against appoint counsel McLaughlin, and oth- 500 U.S. 111 S.Ct. counsel, (1991). explain right erwise set bail 114 L.Ed.2d majority re- (assuming the defendant was arrested for upon incorporated lies the 48 hour limit offense), a bailable and inform the defen- into uphold Rule 544 to Attor- right dant of “the to have a ney’s argument that she is free to re- 540(d). hearing.” Pa. R.Crim. P. The only upon arrest based prosecutor’s the “[ujnless provides pre- Rule also the probable assessment of provided cause liminary hearing by is waived a defendant prompt judicial defendants receive a represented by counsel,” who is issuing the of probable determination cause as re- authority a preliminary must set date for a quired by County Gerstein and River- of hearing “which shall not be less than 3 nor Maj. Op. side. See at 228-29. days preliminary more than 10 after the majority The concludes that the deter- arraignment.” Id. mination of cause made the “issuing authority” preliminary ar- preliminary arraignment The is often raignment provides legal the basis for the held a represented by before defendant is counsel, preliminary hearing. re-arrest after provides proce- and the Rule My colleagues accept case, thus appointing the District At- dure for counsel in such a torney’s distinction setting preliminary between the standard a date for a hear- 238 (Pa.1996) (unless represented (applying who is 342 Riverside a defendant it). requirements It is therefore clear to

by counsel waives cause determination of the Rule that the Pennsylvania procedure). the context criminal from in- designed to preliminary arraignment is The cause determination rights, and form the defendant his/her course, is, focus of our inquiry is the bail, and setting a mechanism for provide The during preliminary hearing. made a Pennsylvania counsel. The Su- appointing Supreme ex- Court has quite this clear perior Court made plained importance the function and of the In of Pa. P. the context R.Crim. Pennsylva- preliminary hearing under preliminary role of ar- addressing the nia Rules of Criminal Procedure: following pursuant to raignment an arrest principles respect The basic with of law 516, Pennsylva- Rule a warrant under purpose hearing of a preliminary to the Supreme nia Court has stated: preliminary are well established. The 123) (formerly Rule 516 Rule hearing principal is not a trial. Proce- Pennsylvania Rules of Criminal junction preliminary hearing a is to is ar- requires person dure who against an an protect right individual’s brought offi- rested be before arrest At this and detention. unlawful without preliminary arraignment cer for the Commonwealth bears unnecessary delay. purpose this prima establishing burden of at least to an accused’s requirement protect that a case crime has been commit- facie and cause of right to know nature probably ted and accused is him, against right accusation his one who committed it. It is not neces- counsel, right bail.7 and his to reasonable sary for the to establish Commonwealth 873, Perez, v. A.2d 875 Commonwealth 760 stage beyond guilt at this accused’s v. (Pa.Super.2000) (citing Commonwealth reasonable doubt. In to meet its order Duncan, 395, 1177, 403, 514 Pa. 525 A.2d preliminary hearing, burden at the added). (1987)) (emphasis If the is required present Commonwealth is unable to establish regard with the ma- evidence to each of ar- charge terial elements of and to raignment, the defendant must be dis- sufficient establish 542(D). Pa. R.Crim. P. charged. See com- warrant the belief that the accused 123) (formally was enact Rule 516 Rule offense. mitted the response ed in 1995 in McBride, v. 528 Pa. County Court’s decision Riverside. Commonwealth (Pa.1991) There, (emphasis 595 A.2d add required the Court ed) (citations omitted); reason cause determination “as soon as is see also Common feasible, ably Hetherington, later than 48 v. Pa. but no event wealth (Pa.1975). Thus, hours after arrest.” Commonwealth A.2d under Abdul-Salaam, law, A.2d Pennsylvania preliminary hearing 544 Pa. requires applies is a 7. Rule 516 that a defendant who when defendant has been arrested Therefore, a arrested with a warrant must be afforded pursuant ato warrant. the neu- arraignment delay." preliminary “without tral that the warrant has issued added). (emphasis P. 516 Rule Pa. R.Crim. already probable determined cause to ar- all requirements 540 then establishes the below, Pennsyl- rest. as I discuss preliminary arraignments. have vania courts not made that distinction. argued It can be that Rule 516 does not probable only focus on because it cause

239 government intended to insure that the evidence at the preliminary arraignment is must justify can sufficient facts to fur- be. establish “probable detention. cause ther de- Moreover, Pennsylvania Superior the at preliminary arraign- termination” the Court has said: is to merely ment intended insure that is concept [I]t clear that the of establish- holding justify circumstances the defen- ing prima inextricably facie case is tied it days dant for the 3 to will take for the is, to a showing cause. That present to evidence of Commonwealth its for the to Commonwealth establish prima case at the cause facie prima they prob- facie case need to show prelimi- at determination that occurs the able cause the accused committed colleagues nary hearing. My state the Therefore, the finding offense. the by following discussing in the distinction be- magistrate that the did Commonwealth hearing, prelim- and preliminary tween the not establish probable cause that inary arraignment: appellant committed the violations for is not at all to us that clear charged which he was is the as a same “pri- and the “probable cause” standard finding that the Commonwealth did Pennsyl- ma facie case” standard under prima establish a con- case. Thus facie require law the Commonwealth to vania assertion, trary appellant’s to no there is provide the same level assurance that legal phrase- distinction to the choice of subject has committed crime. The ology magistrate may em- have different terms chosen describe the ployed dismissing charges against at burden the time of Commonwealth’s him. preliminary arraignment arrest and and Sebek, Commonwealth A.2d preliminary its burden at the time added). (Pa.Super.1998) (emphasis hearings, suggest prima to us that facie above, Philadelphia County, As noted require case standard was intended to preliminary the determination at the hear- greater guilt. different and assurance of ing by Municipal Judge. is made Court course, cause,” speaks “Probable in The at the ar- determination probability “prima of a while terms facie raignment by a Bail is made Commission- Pennsyl- case” has been defined Municipal pre- Judge er. It is the Court as vania evidence “such siding preliminary hearing whom presented court, at the trial in Pennsylvania ensuring with law true, accepted judge as would be justified government depriv- is letting go warranted in the trial In suspect liberty. of his/her

jury.” McBride, Pennsylvania Supreme Maj. Op. Although majority expressed difficulty at 229. no that: concluding “the at prelim- concludes the distinction between sole function [of the inary cause hearing] case “is not determine whether law; probable clear” ac- controlling require at all under the cause exists an ” charges.... courts stated that it cused to trial on the have stand Gerstein, to them at In clear that no distinction exists. A.2d the Court above, at As noted the evidence that noted that “the sole issue” presents prelimi- hearing required by the Fourth true,” “accepted nary must be Amendment “is whether there is McBride, detaining person see Pa. cause for the arrested Commonwealth v. (Pa.1991), just pending 595 A.2d proceedings.... as the further The stan- 240 350, (1978), support That in of for arrest. A.2d 355 her

dard the same that position. Cartagena say While seems cause to believe probable standard — ” probable prima 420 that facie case and committed a crime.... suspect has Here, 120, concepts are that cause different under 95 S.Ct. 854. law, Pennsylvania not prelimi- it does define was made determination Municipal explain them or the difference. Cart- nary hearing by Court years agena was decided over fifteen judge. present the institution of the before majority bases its conclusion system whereby two-level a bail com- probable prima cause is distinct from the not law missioner learned makes Pennsylvania on Common case in facie and a cause determination 6, Pa. 393 A.2d Cartagena, v. 482 wealth Municipal judge Court thereafter makes (find (Pa.1978) 350, (plurality opinion) 355 prima facie case determination. for the institu probable cause existed McBride, 1991, which decided was though pri- proceedings, tion of criminal Pennsylvania has been construed established); had not ma been facie proba- Superior Court to mean 797, Days, v. 800 Commonwealth 718 A.2d prima cause and facie case determi- ble (“[pjrobable cause is based (Pa.Super.1998) nations are the same. finding probability, prima on of not a activity”); and showing of criminal Abraham, facie v. 1022958 *7 Stewart WL 8, Scott, Pa.Super. (citations omitted). (E.D.Pa.2000) Commonwealth v. agree. I (“It (Pa.Super.1980) Moreover, that, A.2d important it is to note payment require would be unreasonable to here, Cartagena, unlike the District Attor- every of time Commonwealth costs ney simply did not refile identical challenge a lack of finding wanted to seek to and re-arrest defendant without prima when had not even facie case there judge intervention after a ruled hint or failure to been a of harassment prosecution did not establish cause.”). Maj. Op. at show charges. cause for the initial In- 230. stead: Appellant May was on arrested 1975. Cartagena,

In v. preliminary hearing A was held state Pennsylvania Court did Municipal Philadelphia June that: courts have rec- “[t]he 5, 1975. The court took the matter un- ognized the standard of advisement and after argu- der and the case standard cause ment, found a Prima facie case had conceptually distinct.” not been established. The court or- carefully Cartage- district court considered appellant na, discharged dered on June persuaded. The district and was 1975. analysis Cartagena court’s is worth re-

peating fully here because and accurate- up The Commonwealth then drew anoth- ly disposes Attorney’s of the District reli- complaint er more detailed criminal and ance on that case. The court relied district arrest another warrant. These docu- upon following: McBride in stating the presented judge ments were to a Philadelphia

While the District was unable of Common Pleas of any practical signed to articulate distinction be- who documents on June re-arrested, pri- Appellant tween the terms was case, following preliminary hearing ma facie she us to Com- directs before Cartagena, Pa. monwealth another the Court Common appellant Philadelphia, my Pleas of was held tinction colleagues seek to draw did for trial.... not exist. Id at 720. For example the noted, court Accordingly, 393 A.2d at 354. the District especially unlikely [i]t is Attorney in did not intent Cartagena substitute of the Rule as revised was to require his own for that a the determination of neutral payment prior ... magistrate prosecutor any as the cost to the seeks to do Moreover, prosecution second reaching here. the because decision re-arrest stated, and a Cartagena second “[w]hen is the magistrate probable only route open believes cause to to the Commonwealth to hold the defendant has not been test an proven, issuing authority’s he judgment that him; ... If discharge prima the Common- case has not been made facie aggrieved by wealth deems itself his deci- out. It would be unreasonable to re- sion it may bring again the matter quire before payment every of costs time the any empowered other officer pre- to hold Commonwealth wanted to challenge a Thus, liminary hearings.” Id. Cartagena finding prima of lack aof facie assumes for approval a second ar- when there had not even been a hint of following discharge rest at a preliminary harassment or to failure show hearing. cause. majority’s reliance upon pro- 420 A.2d at 720. Pennsylvania Superior nouncement of the I am persuaded by majori- also not Scott, Court in' is also ty’s citation to Days. Commonwealth v. There, unconvincing. the court did state: There, the defendant was arrested follow- require pay- “[i]t would be unreasonable to ing execution of a warrant. search every ment of costs time the Common- pursuant search to that conducted warrant

wealth challenge finding wanted to revealed numerous vials of cocaine on her prima lack of case when there had facie person and in her apartment, and she was not hint of even been a harassment or possession convicted for of a controlled failure to show cause.” 420 A.2d ap- substance with intent deliver. On Indeed, at 720. issue Scott was the peal, she trial challenged the court’s con- applicable assessment of under then costs clusion that cause existed for the 542(d). Pa. R.Crim. P. The Rule allowed search. In affirming the trial court’s rul- government costs to against be taxed ing, Pennsylvania Superior Court did it prima did not establish a case “at facie “[p]robable state: cause based on a find- preliminary hearing.” first Id. at 719. ing of probability, prima not facie show- It gave also judges discretion to dis- activity,” of criminal 718 A.2d at if, charge despite prior defendant my colleagues as note. discharge, proceedings “further on the duty court then “[t]he stated: of this brought] same pay- [were without magistrate Court is to ensure that the had ment” Id. The does not decision establish a concluding substantial basis distinction between a case and facie Here, Id. cause existed.” probable cause, does it infer nor such course, Moreover, concluded that interesting distinction. exist, there, note that cause did and I fail even court “probable used see “prima Days supports proposition cause” and how case” interchangeably though prosecutor ignore the dis- is licensed to 242 independent determined someone ruling.8

that police prosecution. then, Essentially asked to decide we are Gerstein, 117-18, 420 at 854. U.S. 95 S.Ct. tolerate Fourth Amendment will the an can be de- individual Moreover, situation where al- the Court has upon of a solely the certification tained ready rejected argument the that a defen- judicial officer though even prosecutor liberty captive interest can held dant’s be lacks prosecutor has determined prosecutors in this to the discretion for contin- probable cause the defendant’s Gerstein, In manner. the Court stated: it- question That answers ued detention. “[although a decision that conscientious any system of I do not think that self. prosecution affords the evidence warrants liberty upon respect for ordered based protection against a measure of unfounded charged interpreting neutral judiciary with detention, prosecutorial we do not think practice can the legal principles condone standing the re- judgment alone meets Attorney urges upon us that the District quirements of the Fourth Amendment.” application Rule 544 and which under its at S.Ct. 854.

my colleagues have sanctioned. hardly Anyone It can be otherwise. ex- is

My colleagues that Stewart believe in perienced the emotions of criminal trials exercising asking us “to bar the from state practicalities will realize what real world good right to arrest it prosecutor’s its when believes suggest. The motivations Maj. faith that it has cause.” See may causing a re-arrest under Rule 544 agree nothing I on this Op. often, at 231. part, least in at result from a sin- re-arrest suggests record that Stewart’s cerely held belief the defendant “beat However, the was the result bad faith. “got prosecutor. or over” the case” on the analysis not turn here does constitutional feelings upon often Such be based faith The good prosecutor. on the of the in- little more than emotions that are more than that. issue is fundamental in the process, herent adversarial and/or solely always if such re-arrests result Even prosecutor’s obviously conclu- biased good prosecutor from faith beliefs of the strength sions about the case. his/her courtroom, equation constitutional A system that conditions an individual’s allowing not balance in favor of hardly would still liberty on those motivations can negate the prosecutor’s judgment protection offer the Fourth just has actions of a officer who requires; Amendment no matter how well- is basis to ruled that there not a sufficient prosecutor may intentioned the be. liberty on deprive the defendant of his/her Experience therefore counseled that felony charges. safeguards against must be provided prosecutor’s responsibility dangers to law of the as well as the

[A] overzealous is the con- despotic. enforcement inconsistent with awful instruments of the role of and detached to a stitutional a neutral criminal law cannot be entrusted single functionary. complicated for the magistrate.... Probable Cause process justice of an must be of criminal therefore issuance arrest warrant is limited I realize that cause determination is not with- given strength to admissible out force. evidence result, suggest contrary hearing, hearsay may considered I whereas be authorities agree signifi- preliminary arraignment, and the ma- that this is so can not distinction jority’s significant support majority assertion that creates a cant as to the distinction the this proceedings. between case and draw between two distinction seeks to those States, parts, responsibili- divided into different Johnson United 333 U.S. 13- (1948).9 If ty separately vested S.Ct. L.Ed. which initially defendant can not be detained participants upon various whom the prosecutor,” on the “solely decision of a criminal law relies for its vindication. would stand Constitution its head to 118, (citing Id. at S.Ct. 854 McNabb v. 95 prosecutor power allow the that after a States, 608, 332, 318 U.S. 63 United S.Ct. has ruled judge prosecutor that the lacks (1943)). why 87 L.Ed. 819 That is we have probable defendant, cause to detain the why neutral the Su- magistrates, is felony and orders charges discharged. preme prosecution’s restricted the Gerstein, 106, U.S. at S.Ct. 854. of a authority to detain absent review neu- that a The fact trained Bail non-law Com- magistrate, why tral and that is the dis- may previously missioner have held the enjoined policy trict court the that has defendant for court at a time when the in Phil- implemented been under Rule 544 represented not defendant have been County. adelphia by change equation. counsel does not the magis- that a requirement neutral In Gerstein the Court determined that probable trate amounts to evaluate cause practicalities justified the an initial by if it can precious little be nullified the arrest justify warrantless could not con- prosecutor’s certification that tinued detention without a deter- exists, especially when the certifica- Here, mination of cause. the immediately tion is after a has made practicalities Commonwealth asserts that contrary. prosecutor’s ruled to A “of- the justify pe- continued detention for a brief ficial oath furnish [can] riod to allow it to the establish Gerstein, cause....” U.S. at However, cause that believes exists. prosecutor in substan- S.Ct. 854. is prosecution the of practicality focus position tially the same as law enforce- brevity and the of the detention misses ment view of officer who believes his/her requires It point. the us to minimize both correct, cause to case to be and his/her liberty, of importance one’s and the righteous. century be More than half a in proper role of the judge determining ago, the stated the reasonableness of an arrest. Amendment, point of the Fourth

[t]he in The detention that results these cases which not grasped by is often zealous may compared be brief when well officers, not that it enforce- is denies law lengthy pretrial more detentions Ger- support ment the of the usual inferences ought stein. we not to devalue which men reasonable draw from evi- liberty to of condoning one’s the extent protection requir- dence. Its consists period even a brief of incarceration follow- by those inferences be drawn ing a warrantless arrest unless neutral neutral and detached instead magistrate prosecution concludes that being judged by engaged of the officer has established cause. No in- competitive enterprise of seriously often officer of the can formed court ferreting regard procedural protection out crime. this as a stated, (3d Cir.1992) previously competi- "Although 9. We have noted we it, litigation atmosphere government hardly tive of will will sometimes admit reasons give part proffered prior rise motives on of an to admit act ... to mixed bad evidence (there, urge prosecutor) it was at- mixed advocate is often between an show some tempting consequential impugn to admit evidence in a criminal trial. other fact well as to Sampson, In v. United States 980 F.2d the defendant's character.” 56, 111 I doubt 1661.10 The legal technicality, and 500 U.S. S.Ct. troublesome provided of such un truly operating examples Court then any prosecutor who It “Exam delay. proclaimed: it as such. regard faith would reasonable good delay delays unreasonable liberty largely ples been history “The purpose gathering additional evi history procedural observance arrest,....” justify the That administration dence to Id. safeguards and effective we There justice hardly requires precisely disre- what have here. of criminal fore, majority places law.” I far too procedures imposed fair believe gard of U.S., prelimi 63 much reliance on fact that the 318 U.S. McNabb (1943). nary arraignments within 48 hours 87 L.Ed. 819 occur S.Ct. (“The Maj. Op. at 229. of arrest. See Moreover, of the incarcera brevity requiring probable law cause weigh does not tion that follows re-arrest preliminary arraignment and a for arrests heavily in under nearly as the balance hours all within 48 satisfies majority con circumstances as the these ”).11 ... requires, Fourth Amendment has noted The cludes. delay con may that circumstances make IV. Conclusion proba if a stitutionally unreasonable even hearing occurs 48 hours ble cause within above, I For the reasons must outlined establishing the 48 hour an arrest. While disagree majority respectfully with the probable rule for cause determinations my colleagues conclude opinion insofar Riverside, County of the Court cautioned: enjoining the district court erred say probable not to This is Attorney’s policy current un- particular in a cause determination Rule 544. der simply constitutional be- passes muster provided 48 hours.

cause it is within violate

Such a nonetheless if the can

Gerstein arrested individual probable his or cause

prove that her delayed unreason-

determination was

ably. context, Supreme Court does not In a different record reveal ... what information 10. declared, suggest that "Authority presented to the does was neutral at pris- time in preliminary arraignment a minimal amount of additional Stewart's second prejudice [under on cannot constitute was found to cause.” constitute analysis competency counsel]. Strickland Maj. Op. at n. 4. Quite contrary, sug- jurisprudence our does, however, The record show that jail gests that actual time has amount of judge ruled that the did not Commonwealth significance.” Sixth Amendment Glover Stewart on have cause to detain States, 121 S.Ct. United felony charges for im- he was arrested (2001). (Emphasis 148 L.Ed.2d 604 mediately ruling. judge after the made that added). Therefore, majority's believe I that the focus preliminar)' arraignment second on the majority arrest states that Stewart’s already misplaced. had oc- arrest have violated Amendment if would the Fourth curred, cause, dispute and there is that a no it had been made but without already ruled attempted to had concludes that "Stewart has not presented Municipal attorney had not show ... lacked district (the Judge magistrate”) arrest or relevant "neutral the time of his anyone support majority else’s.” The notes that "the with cause to that arrest.

Case Details

Case Name: Stewart v. Abraham

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 26, 2001

Citation: 275 F.3d 220

Docket Number: 00-2358

Court Abbreviation: 3rd Cir.