*1 STRUVE, Petitioner-Appellant, WILCOX, Sheriff, Bonner Robert
County, Defendant-Respondent. 12307.
No.
Supreme of Idaho.
Feb. 1978.
Rehearing May Denied Lamanna,
Nick M. Lamanna of Cooke & River, Priest petitioner-appellant. for appearance respondent. No BISTLINE, Justice. presented
The issue this habeas validity ofcpetitioner’s prere- review is the *2 quisition detention to await the issuance of read from the fugitive complaint, Idaho an Idaho’s entire proceeding3 Governor’s arrest warrant on the was as follows: requisition of the Governor of Dako- South THE .... COURT:. ta. For failure to comply with the Idaho This is the time that has been set for the statute requiring hearing at hearing in the matter of STATE OF appear it must petitioner is the IDAHO, Plaintiff, vs. HARRY T. person charged having with STRUVE, committed the Defendant. No. Case 16091— alleged crimes, South Dakota IDAHO, Plaintiff, and that he F/W and STATE OF probably same, STRUVE, committed the vs. HARRY T. we reverse Defendant. the district Case No. 15967-IM. court with instructions to order the release of petitioner. up The first matter we have to take today is 16091. Petitioner initially was arrested in Sand- you Are Mr. T. Harry Struve? point, Idaho, on felony Idaho check MR. Yes STRUVE: sir. charges.1 A inquiry through routine Struve, THE Mr. COURT: the com- National Crime Information Center com- plaint has been filed with the puter led to the information that South case, you charged being in this are Dakota had three outstanding felony war- justice fugitive from State against Struve, rants Dakota, in South violation of Idaho Code were based on complaints of passing one time, 19-4513. At this I will read the $5.00, check for and two $10.00 all complaint to you. drawn on a nonexistent bank account. “Personally appeared before me this petitioner’s On arraignment on the Idaho (14th) day Fourteenth May, check charges, he was jail ordered to await- Schoonover, Charles in and for the Coun- ing a preliminary hearing and bond was set Bonner, ty of first $1,500.00. The court then asked for and sworn, duly complains says: [Here received police unsworn testimony about I, the court read to defendant Count the South charges, Dakota in view of which III, II Count and Count the three South the court petitioner’s raised bond from complaints, and continued.]” $1,500.00 $5,000.00. complaint This was subscribed and sworn Two weeks later petitioner when 14, 1976, May to on Charles Schoon- taken to his preliminary hearing on the Judge over before Swanstrom. Idaho felony charges, check he was served time, Judge At that Swanstrom issued a by a Sandpoint policeman with an Idaho warrant of arrest which was served this fugitive issued on an Idaho com- (19th) Nineteenth day May and return plaint. The preliminary scheduled made Charles Schoonover. And at- temporarily delayed deference to an im- complaint (3) tached to the are the Three mediate court arraignment on the complaints and warrants from Da- complaint. jail Petitioner’s detention in kota.
predicated upon the prerequisition warrant Now, admitting denying without which issued following arraignment.2 allegations complaint, you of this under- Omitting portions where the what charges stand are? vigorously jail 1.Struve maintained in the district 2. After on the ordered court, here, charges prerequisition check Idaho court turned to the pretext, preliminary hearing were a and thus all that tainted flowed matter of the on the Idaho allegedly illegal charges. charges from an detention thereon. check These were dismissed disagreed. prosecution. The trial court Because Struve’s on motion of the challenged detention was not on the Idaho charges, and because we find his No. 16091-F/W is the Idaho Case independent detention unlawful for reasons complaint. No. is the earlier Case 15967-IM theory, proceedings this taint we mention complaint charges. on Idaho check charges those Idaho check where proceedings intertwine with the in Idaho on the fugitive complaint. Yes, you. He County, represent I MR. have a for Bonner copy STRUVE: you. In the you notified and contact phrase identical read sir. will be post should be able to bond you event Now, THE I going COURT: am com- ($1000.00) of One Thousand amount you mit jail period up of time of dollars, which has been set previously to Thirty (30) days your to enable arrest *3 Swanstrom, contact you should Judge on a requisition from the Governor his office in Priest River. him at So, South Dakota. the State of Idaho Thirty (30) addition, will not desire to days Now, you have to should in which me, Idaho, pardon this you requisition. arrest on the State of require requisi- Dakota issue the State Now, addition, the time this through the Governor of requisition, you right have a to counsel. you if you may waive extradition right You have a to confront witnesses time, Now, like to. at this would would returning to South Dakota requisition or you prefer to wait for the
you right produce have a to evidence in like to you would waive extradition? your Or, own behalf. rather than await- ing the requisition, you right have a to MR. I will waive extradition. STRUVE: Now, waive mean, extradition. you do desire I I won’t waive extradition. an attorney represent to you? You waive extra- THE COURT: will not Well, MR. STRUVE: I was Very under well You will be dition. then. understanding that I on upwas here this custody to the Sheriff committed case involved here in County town. in the of Bonner for detention County jail for of time Well, period Kootenai THE you COURT: are here Two (30) days exceed (2) Now, Thirty not to to await cases. we talking are about the issuance the Governor’s warrant. extradition matter. you Do desire an attorney represent to you? any questions regard have youDo to matter, Mr. this Struve? MR. STRUVE: Yes sir! Well, uh, quite I don’t MR.
THE STRUVE: you COURT: Do any money have uh, mean, this this. I understand to hire an attorney you? to represent uh, been, right procedure going directly You do not? happens here? to South and what MR. STRUVE: No sir. mean, I what is this? THE Very you COURT: well. Would charge THE COURT: This is a rise please. and be sworn alleges nothing you more than that are a STRUVE, HARRY T. being duly first fugitive from South Dakota. This com- sworn testify truth, to the whole plaint upon your would be dismissed re- truth, truth nothing turn to South Dakota. examined and testified as follows: the charges, MR. You mean STRUVE: EXAMINATION BY THE FOR COURT here, mean, er, are dropped. You COURT-APPOINTED COUNSEL: [The uh . examination disclosed that so Well, particular THE COURT: this entitled, which is not here question.] Turning now to No. 15967. case. Case THE you signed COURT: Have it where it says, ? “Application” issued on basis of these The warrant4 proceedings reads: STRUVE, MR. after fi- reviewing your statement, nancial I going appoint initially ap- am to The above named Defendant Lamanna, Defender, Mr. Nick peared Public in Court at 1:30 P.M. date magistrate’s authority requisition I.C. 19-4515 of the of the executive jail offense, having jurisdiction commitment to un- state gives provided accused less the bail as reciting a warrant the accusation section, legally specified next charged. or until he shall be dis- for such a time in the warrant as will enable the arrest of the accused to be governor made under a warrant of the portions counsel, apparent right He was advised of his to of minutes to confront witnesses and his that in a matter above quoted produce pursuant to I.C. evidence the aid of was without who petitioner, Thereafter, Mr. Nick M. La- arrested, counsel, arraigned and com- appointed represent manna was HAR- jail. mitted RY T. STRUVE. reported Idaho appears to be no There was advised Additionally, Defendant where a habeas proceeding criminal of his to waive extradition and de- challenge prerequisition writ was utilized cline to do so. we find detention. Nor do arrest and NOW, THEREFORE, the named above reports from other aid in the substantial custody to the Defendant is committed simply jurisdictions. This is understandable County period the Bonner Sheriff is ordi- such arrest and detention because (30) Thirty days time not to exceed *4 the requisition a from narily followed enable the arrest of the accused on a gov- and the issuance demanding state requisition pursuant to Governor’s It is asylum state. ernor’s warrant in the in the sum 19-4515. Bail was continued the author- arrest under generally held that ($1000.00) of dollars. One Thousand warrant moots ity governor’s of a valid the have occurred irregularities which hear- arraignment the al- of apprehension and detention prior ing establishes that the recitations Smedley, 553 P.2d Levick v. leged fugitive. respects. warrant are inaccurate several Cronin, 1976); (Alaska McCoy v. to counsel right Petitioner was advised of a Caudill, (Colo.1975);Application P.2d 379 identity his as only after he had admitted to petitioner’s (Okla.Cr.1960). In after he was Harry only T. with a situation we are not concerned case jail A to ordered to lieu of bond. has been governor’s a warrant in which only was mentioned in connection counsel us on review issued.6 We have before challenge validity the the with to warrant, which was the prerequisition the Al- anticipated governor’s the warrant.5 the detention at petitioner’s sole basis of though appointed Mr. Lamanna was hearing in the time of the habeas possible hearing, counsel for such future he court.7 present arraignment. was not at this It is district prer- notwithstanding Rights Right on the that his detention to 19-4510. of accused — apply corpus. person equisition one week for writ of habeas then lacked but warrant —No upon justification year. question arrested such warrant shall be delivered We the a full authority agent over to the whom the executive was com- he confinement since his continued demanding appointed him to receive shall have period to exceed of time not mitted for a him unless he has been informed of the demand that, authority days. of I.C. the is true under made for his surrender and of the crime with 19-4517, may magistrate enter an order the charged, which he is and that he has the day.” How- recommitting further him “to a counsel; legal prisoner, demand and if the to ever, commitment no second shows the record friends, or or counsel shall state that he Unfortunately, must be review order. arrest, legality of the desire to test the the district made before which was the record judge prisoner shall be taken forthwith before a hearing writ of at the time of court state, fix a of a court of record in this who shall hearing corpus. held on was This habeas within reasonable time to be allowed him period 30-day ordered day detention 8th apply corpus. which to for a writ of habeas magistrate. for, applied And when such writ is notice there- of, place hearing and of time and there- corpus hear- the habeas the conclusion of 7.At on, public prosecuting given to shall attorney prosecuting stated: ing, deputy county is officer of the in which the arrest today is the only thing the Court “The custody, in which the made and accused is Mr. Struve fugitive complaint that warrant demanding agent of state. and to the said on, While being Dakota.” of South held out “pre- argued primarily petitioner’s counsel 6. We assume that no warrant supra charges, he note text” arrest on local been issued. in- ever Petitioner’s counsel hearing under type ordered argument did “this petitioner had refer to us at oral formed Act,” going Chapter yet Extradition 45 under the arrested on a been statute, When the legislature plain provision Idaho in 1927 Under adopted the Uniform Extradition Act it rec a magistrate required to conduct ognized that it would be unfair to detain a hearing. A warrant commit- person for any period extended without jail ting could not issue with- petitioner judicial there finding judicial finding petitioner out cause for doing so. Accordingly, the Idaho felony person charged the identical version of the Extradition Act Dakota, and that check offenses South arrested as is entitled to crime, petitioner probably committed the have his answer to the fugitive complaint from petitioner and that fled heard at a examination as to the there be in this justice. Except that existence of cause: Struve, the T. Harry world more than one requisi- Commitment to await petitioner magistrate did establish tion—Bail.—If from the examination be- Nothing in the indeed Struve.8 judge fore the it appears petitioner rose arraignment brief accorded that the person held person charged is the dignity or established with having committed the alleged crime probable cause which is abso- requisite and that he probably committed committing lutely essential to a valid order crime, and, except in arising cases under jail. 19^506, section that he has fled from only thing the record justice, judge which we can turn is the Idaho jail commit him reciting *5 itself, complaint attached to it has the accusation for specified such a time in copies the three certified of the Da South the warrant as will enable the arrest of complaints against kota a named
the accused to be made under a warrant Harry complaint T. Struve.9 criminal governor of the requisition of the by while sworn to a executive authority of the state having officer, jurisdiction offense, allegation peti local made no unless the ac- cused give bail as in provided any in the next tioner had committed offense South section, or until he legally filing shall be of three allege dis- Dakota. did charged. (Emphasis Dakota; supplied.) criminal actions in it did South challenge establishing not, on to petition- of when there had and that cause: counsel, er had been advised of his not, when he had and that he had been advised fact, Honor, your ques- As a matter of I even that he had a to confront witnesses and Complaint tion the and I will ask the Court to evidence, produce when he had not. take notice of South Dakota law Chapter which deals with the issuance of procedure by 8. The which this information was Complaint propose a and I would to the suspect obtained is where was not Complaints only those are not to, informed of his nor did he have coun- illegal unrecognized, and but are not sel, possibly the time he was asked the sufficient under the Uniform Extradition Act incriminating question about who he was. regarding fugitives, and the law both under 19-801, 802, 851, 852 and 853. §§ the Uniform Federal Act and Idaho’s Pattern Act. Copies of the South Dakota arrest warrants At hearing the habeas there was no complaint. were also attached to the Idaho proceedings of magis- before the requirement These documents do not fulfill the arraignment trate on on the war- of an the Idaho statute that Idaho court is tape rant. recording pro- There was a of that required to make its own determination of ceeding, but the record is clear that it was not Moreover, the inference to be cause. prior listened to reaching the trial court complaints were drawn from the fact that the denying decision relief. Had the trial court had notary public— each subscribed to in front of a transcript, Court, as does this we have no complainants not a nev- doubt —is would have reached the same appeared er at all. We validity view prerequisi- as we do on the also observe that two of the warrants were tion warrant. by magistrate, “deputy.” issued not The trial court did see the war- perusal A Dakota laws does not of the South rant itself. This have caused the court to position magistrate.” “deputy show the of infer there had been a 22-41-1.2, Harry bank, name a T. Struve violation of as the SDCL alleged offender; it did allege that that to the statute contrary form Harry T. .the fugitive; Struve was a and “for provided; against made and further case such particulars” it made reference to dignity the at- of the State peace tached certified copies of the Dakota, South Dakota South complaints. Each such complaint is sworn com three Dakota of the South All a notary to before public, Kleibacker, M.W. un devoid of statement of plaints are charges a Harry T. very Struve Williams, who Maureen derlying facts. language statute, of the South Dakota S.D. one, Swanson, who and Edwin M. signed 22-41-1.2, the ingredients C.L. essential two, other are unidentified. signed the are a no-account cheek made or deliv- is set forth as to Nothing whatever ered an intent to defraud. One such in which checks deliv were transactions complaint, signed Swanson, M. by Edwin Nothing accepted. shows ered and is illustrative of all three: information, complainants’ sources of County, Edwin M. Swanson of said transaction, either as to or as to wheth oath, duly first sworn and examined on Harry er T. Struve had a bank account. undersigned Kleibacker, W. M. complaint This Idaho with its attached Notary Public in County and for the complaints is copies of the South Dakota, Lake and State of on his South justify any finding proba- inadequate oath, complains and that on charges ble cause.10 March, day 20th A.D. at Madison beyond look We need not own statu- the County Lake, and State of and our own law tory provisions case Dakota, did, South then find- necessary what is to make a ascertain there, willfully, intentionally, unlaw- cause. ing “Probable cause” himself,
fully, for present considera- jurisprudence. to Idaho criminal tion, stranger no defraud, make, draw, with intent to allegedly an offense is one which Where Drug utter or deliver & Casey Jewelry, Madison, ever law Dakota, check, place took been the draft or that an arrest will payment money order for the issued *6 $5.00, by magistrate upon upon payable sum of drawn at satisfied and Bank, Falls, probable (reasonable Western there cause Sioux Dakota, knowing ground) of such to believe that the named at the time defend- making, ant drawing, uttering delivering complained has committed offense magistrate that he did not with such satisfy have an account of.11 The must himself nesses, tending 10. Neither the recitals of the to establish the commission pro- guilt nor the of the actual warrant ceedings suggest and the offense of the defendant. magistrate magistrate con- If the 19-506. is satisfied there- required probable himself to conduct complained sidered been from that committed, offense of has hearing required by § 19^1515. cause I.C. and that there is reasonable Nevertheless, we have what was be- reviewed ground believe that defendant may possibility he him on the bare have it, fore committed he must issue a warrant entirely subjective an and unrecorded made determination arrest. probable that he could find 19-4403, 4404, govern 4405 and 4406 I.C. §§ papers him. front of cause provide search and warrants A search can be is- 19-4403. warrant not passage 11. Since the of Idaho’s first territorial cause, by supported upon probable sued but 1864, code in have re- criminal quired statutes affidavit, naming describing person, finding officer’s describing property particularly and and per- as essential cause son ed and the Idaho to effect a of a seizure place to be searched. property violating or his Unit- without must, issu- The 19-4404. Amendment, Constitution, States Fourth ing com- on oath the examine Constitution, 1, 17. I.C. § art. may produce, plainant any witnesses he and govern 19-505 and 506 arrest warrants of §§ writing, depositions and take their provide: by parties cause subscribed them to be deposition 19-505. must set forth making them. by prosecutor stated facts wit- and his
211
magis-
must be drawn
cause from “facts
“conclusions
stated
63,
254
prosecutor
witnesses,
the affiant.”
Id.
and his
and not
trate
tending to
establish the commission of the offense and
P. at 794.
guilt
of the defendant.”
19-505
§§
suffi-
necessary
that the facts be
It is
and 506.
upon which to base a verdict
cient
Long before Gerstein v. Pugh, 420 U.S.
upon
but
must be sufficient
jury,
103,
854,
95
(1975);
S.Ct.
741, 13
(1965);
L.Ed.2d 684
Aguilar
later,
v. Tex
years
promulgat-
This Court 45
as,
108,
1189,
378 U.S.
84 S.Ct.
25 L.Ed.2d
ing Rules of Criminal Practice and Proce-
(1964); Mapp Ohio,
643,
723
367 U.S.
81
dure, incorporated the spirit and intent of
1684,
(1961);
S.Ct.
legislature
affording
in
such
be hun-
jurisdiction
may
another
safeguard
probable
cause
his home.
dreds of miles from
[Footnote
19-4515,
philoso-
applauded.
must be
accordingly
The law
surrounds
omitted.]
was also re-
phy evident in this statute
procedural
with considerable
the accused
recent decision in Walton v.
flected
wrongful
stave
rendi-
protection to
off
State,
(1977).
98 Idaho
It is consistent
tion. [Footnote omitted.]
There,
corpus pro-
reviewing
a habeas
just
the accused’s
with this concern for
ceeding testing
validity
of extradition
to re-
recognize
treatment
said:
this Court
quire official confirmation of
asylum
While the courts of the
state are
asylum
state before extradi-
cause
prevent
the state from be-
obligated
This
cause confir-
tion.
coming
fugitives
a haven for
from other
especially appropriate
mation seems
states,
pro-
state to
authority
view
the fact
the accused will
illegal arrest or
tect
its citizens from
evidentiary prelimi-
to an
have no access
forgot-
wrongful rendition must never be
cause until he
nary hearing
566 P.2d at
ten. 98 Idaho
jurisdic-
finally
accusing
arrives in the
rendi-
be noted that
tion.
[Footnote omitted.]
asylum
proceedings,
tion
the courts of
addition,
asylum
the interests of the
jurisdictions
have accorded
states
several
its own
state are advanced
protection
of the Fourth
defendants
determination. For it would
Amendment to the United States Constitu
compel
jurisdiction
highhanded to
by requiring
extradition docu
authority, and the
lend its coercive
demanding
ments of the
state establish
law, against even its own
processes of its
probable cause. Where the extradition doc
key
enterprise
of an
citizens
aid
merely
uments consist
of affidavits and/or
If,
in the dark.
of which remain
details
complaints
criminal
facts
underlying
v,
here,
prosecution
it turns out that the
Preston,
must be set forth. Kirkland
*8
unfounded,
148,
against
fugitive
the
is
U.S.App.D.C.
Pip
[foot-
Where it is thus seen that arrest petitioner as to whether desired counsel at under a is such a signif prepar that time when person’s icant interference awith freedom ing any person to detain him. so as to necessitate a showing to counsel. detained has a would cause, logical that we require anomaly person be an to allow a indeed strict adherence to statutory require our gover his arrest on a challenging counsel ment that probable cause be established as making his answer nor’s but not precedent condition to prerequisition de proceeding to a at a fugitive complaint tention awaiting the probability gov that a which can lead indefinite incarcera to his ernor’s warrant will issued. county jail. tion in a The fact that peace making complaints Idaho officer What was said in Kirkland is equally true alleges pub that a committed a person has here, establishing probable cause at jurisdiction, lic offense in another and is a hearing statute, mandated I.C. therefrom, not make it does § is no real inconvenience. In this 19— public a complaint less of “a offense” with day of instant communication rapid 19-801, meaning § transportation, identity petitioner as provides that the accused must be the Harry T. Struve who allegedly passed informed of his counsel. bad checks in South Dakota could have 19-802 reasonable time be easily Also, been established. how much counsel, securing afforded for and I.C. effort would have been entailed estab- 19-852 sets forth circumstances under lishing the identity of Maureen Williams provided needy which counsel will be Swanson, and Edwin briefly M. outlin- person. Perhaps, had repre been ing their knowledge firsthand of the under- sented, hearing a real would lying gave facts which rise to the com- place. have taken plaint? problem What would there have been obtaining above, an affidavit For we the reasons stated reverse stating bank no had account in the denying petitioner trial court decision name of Harry two Surely custody. Struve? discharge from district (if merchants that is not who court is Williams and directed to forth- authorized with, are) upon Swanson who opinion,14 received the enter an receipt worthless of this brief, proceedings rep- argue, preadvising 14. In all appear below the State was intention, City Attorney resented Sandpoint, Court that and his ad- such was his Idaho, acting capacity copy in that vice showed advice was sometimes Deputy Prosecuting Attorney. Attorney General, sent He not file did office of *9 order discharging the from show any suggest does not that Struve was custody which ensued pursuant warrant. prerequisi- pe- arrested The 19, 1976, May Struve, warrant of suggest and from tition does not if ar- rested, subsequent prerequisition renewals of that was taken as founded on no required more than the rec- both state and federal statutes. ord which before the magistrate petition was on the Nor does the claim State date that the warrant first issued. Dakota continues to want returned.
Reversed with directions. to ac- Order company opinion. petition rehearing is denied. BAKES, J., DUNLAP, Judge District BAKES, JJ., DONALDSON and (ret.), concur. DUNLAP, (ret.), Judge District concur. DONALDSON, J., concurs in result.
SHEPARD, J.,C. opin- dissents without
ion.
ON DENIAL OF PETITION
FOR REHEARING
BISTLINE, Justice. Idaho, The State of through the office of General, the Attorney KRAFT, Plaintiff-Appellant, though party not a Jack Harold participant nor on this appeal, has asked for a rehearing. The STATE of As an excuse for not having participated Defendant-Respondent. appeal, points State to office error in having initially viewed the habeas No. 12304. corpus proceeding against Wilcox Sheriff Supreme of Idaho. Court
being civil in nature. The State wants the cause reheard in June urge order to upon us that the issuance of a irregulari- warrant renders moot ties in prerequisition arrest and detention.
Our opinion February might
have sufficed show knowledge our own
in that regard, and therein wondered we
why processed Struve had not been under a
governor’s warrant. petition, its attaches a
copy warrant which issued June, 1976,
on the 2d day of and a sheriff’s
return showing copy of the same was return,
served upon in all re Struve.
spects process, similar to a return of civil part whose there was also was neither brief filed either event this Court entitled appearance argument. adversary presentation. nor for oral Whether it to the benefit of an thought many appeal lacking Attorney
was on The office-of the so General briefs, dignified by ap- presented merit as to be and at a brief or occasions matters pearance which, helpful arguments, though respondent, to a behalf defend- thought ant, impossible greatly whether in its aided this endeavors to just appellate to sustain the issuance of a fair and review. conduct