The opinion
Goodman, J.,
dissenting (with whom Brown, J., joins). It is submitted that the “complaint” 1 and the “arrest warrant” 2 in this case are an insufficient basis under the Fourth Amendment to the United States Constitution for the petitioners’ arrest. The validity of this position depends on the extent to which the holding in Ierardi, petitioner, 366 Mass. 640, 645 (1975), has been modified by *734 Gerstein v. Pugh, 420 U. S. 103 (1975). In Ierardi, petitioner, supra, the Supreme Judicial Court held that “[wjhether there is probable cause to arrest can be fully litigated before the courts of the demanding State” and permitted extradition to Florida on the basis of an information brought by a Florida prosecutor. No finding of probable cause in Florida or Massachusetts had been made prior to extradition. Subsequently, Gerstein v. Pugh, 420 U. S. at 114 , held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest” and ruled that the Florida procedure was violative of the Fourth Amendment. Under Florida procedure an arrest could be made pursuant to a capias based on a prosecutor’s information, and the arrestee had no way of obtaining a judicial determination of probable cause for the arrest for at least thirty days. The Court said (at 124-125), “Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty____”
In Ierardi v. Gunter, 528 F. 2d 929, 930 (1st Cir. 1976), the Court of Appeals applied the Gerstein case to the extradition proceedings which had been considered in Ierardi, petitioner. It held that “Gerstein requires a judicial determination of probable cause as a prerequisite to interstate extradition. After Gerstein such a determination must precede ‘any significant pretrial restraint of liberty,’ 420 U. S. at 125 ... and we think interstate extradition necessarily involves significant restraint.” Accord, Wellington v. South Dakota, 413 F. Supp. 151 (S.D.S.D. 1976) (following Ierardi v. Gunter). Contra, In re Golden, 65 Cal. App. 3d 789, 794-796 (1977) (which does not mention Ierardi v. Gunter). The court in Ierardi v. Gunter, supra at 930 , pointed out that “[a]t best extradition means an extended period of detention, involving custody pending administrative arrangements in two states as well as forced travel in between. At worst it means separation from a familiar jurisdiction and effective denial of the support of family, friends and familiar advisors.” That court thus *735 affirmed the grant of habeas corpus relief to Ierardi on the ground that “the rendition demand... did not embody the prior judicial determination of probable cause required by the fourth amendment, and the requisite determination had yet to be made” (at 932).
The court noted (at 931) that its holding did not require that Massachusetts make its own determination of probable cause: “Massachusetts may credit an arrest warrant shown to have issued upon a finding of probable cause in Florida just as it would credit a Florida indictment.” This is quoted with approval in Puopolo, petitioner, 372 Mass. 868 (1977), also an extradition case.
We therefore turn to the complaint and the arrest warrant in these cases to determine whether such a showing has in fact been made. The recitation in the arrest warrant of a finding of probable cause would ordinarily be determinative — assuming the continued rejection of Kirkland v. Preston, 385 F. 2d 670 (D.C. Cir. 1967), which holds that the court of the asylum jurisdiction should review determinations of probable cause made in the demanding State. However, the significance of the Kansas finding and its limitation depend on Kansas procedure. It is the Kansas procedure which must supply the dictionary for determining the meaning in the arrest warrant of the symbols “finds that there is probable cause to believe.” See Moore, petitioner, 2 Mass. App. Ct. 399 (1974) (in which this court examined California procedure to determine the significance of a California information). Our examination of the Kansas statutes and case law leads us to conclude that the issuance in Kansas of an arrest warrant, though stated to be on a finding of probable cause, does not require such a determination as would pass muster under the Fourth Amendment. The Kansas Code of Criminal Procedure, Kan. Stat. Ann. § 22-2301 (1974), provides that “[ujnless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate.” Section 22-2302 provides: “If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause *736 to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue.” Further, Kan. Stat. Ann. § 22-3201 (1974) (see n.l) provides: “(2) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient.”
The complaint is thus a charging document which needs do nothing more than set out a crime in the words of the statute. 3 Indeed, § 22-3201 provides that “ (3) The court may strike surplusage from the complaint, information or indictment.” Nor need the magistrate require more. The court syllabus in State v. Woods, 214 Kan. 739, 741 (1974), states: “The allegations of a complaint positively sworn to provide a magistrate with a sufficient basis for making the requisite finding of probable cause to issue a warrant for arrest.” The court cites State v. Carey, 56 Kan. 84, 87 (1895), in which it held that mere unqualified verification under oath was sufficient to foreclose any further inquiry as to knowledge of the person who swore to the complaint. See State v. Addington, 205 Kan. 640, 644 (1970); State v. Giddings, 216 Kan. 14, 16-17 (1975); Meyer, Arrest Under the New Kansas Criminal Code, 20 U. of Kan. L. Rev. 685, 690-697 (1972). And, as that article states (at 693), “Normally, the warrant will be issued solely on the basis of a complaint filed with the magistrate.” 4 In these *737 circumstances the issuance of an arrest warrant “from the complaint” filed by enforcement officers — despite the assertion of a finding of probable cause — can stand no better than the capias by the Florida court on the basis of the information filed by the prosecuting attorney. See Ierardi v. Gunter, supra at 929 . To be sure the magistrate might have made a finding of probable cause on the basis of “affidavits filed with the complaint or from other evidence ____” Kan. Stat. Ann. § 22-2302 . But from the arrest warrant before us (see n.2) it appears that there was nothing before the magistrate but the verified complaint. Indeed, both parties in response to inquiries at oral argument have submitted affidavits which agree that, as stated in the Assistant Attorney General’s affidavit, “[t]he context of the presentation of the complaint [to the magistrate] was informal and the responses made by Davis [who signed the complaint] were not under oath.” The informal unsworn responses cannot avail to convert the complaint from a charging document to a showing of probable cause. U. S. Const, amend. IV. Frazier v. Roberts, 441 F. 2d 1224, 1227-1228 (8th Cir. 1971). 5
We conclude that pursuant to the procedure here followed and sanctioned by the State of Kansas “ ‘the inferences from the facts which lead to the complaint [and the arrest warrant] ’ [were] drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, [ 357 U. S. 480, 486 (1958)]____” Aguilar v. Texas, 378 U. S. 108, 115 (1964).
The Kansas Code of Criminal Procedure defines a complaint as “a written statement under oath of the essential facts constituting a crime....” Kan. Stat. Ann. §22-2202 (6) (1974). Section 22-3201 of Kan. Stat. Ann. (1974) provided: “The charge. (1) Prosecutions in the district court shall be upon indictment or information. Prosecutions in other courts shall be upon complaint.” Effective January 10, 1977, § 22-3201 was amended to provide: “Prosecutions in the district court shall be upon complaint, indictment or information.” Kan. Stat. Ann. §22-3201 (1976 Supp.). Our references hereafter to the Kansas statutes are to the versions appearing in Kansas Statutes Annotated (1974) which in all respects material to this case remain unchanged.
The arrest warrant recites that “[w]hereas, a complaint in writing and under oath has been filed with the undersigned magistrate at Wichita, Sedgwick County, Kansas, and the undersigned magistrate finds that there is probable cause to believe [there follows the complaint verbatim] .... You are, therefore, commanded forthwith to arrest the said [ten named individuals, including the two petitioners]____”
See Kan. Stat. Ann. § 22-3201 (2) (1974) which provides that “[t]he complaint, information or indictment shall state for each count the official or customary citation of the statute... which the defendant is alleged to have violated.”
Compare Wilson, Basic Rules of Arrest, Seach and Seizure, A Manual for Kansas Peace Officers, Governmental Research Center, The University of Kansas 7 (1964): “The complaint may be made by any person who knows the facts. Frequently, it is thought the better plan to require the signature and oath of the injured party as this may help to assure his later cooperation. Often, however, the complaint will be signed and verified by the prosecuting attorney or investigating officer on the basis of facts revealed in the investigation.”
Even if it were possible to treat the complaint as an affidavit purporting to establish probable cause (and we submit it is not), the question may still remain whether (though Ierardi, petitioner, constrains review generally of the sufficiency of the allegations in an affidavit) we should take note of so obvious a defect as a verification under oath which, as the majority opinion is willing to assume, does not purport to be on personal knowledge or on reliable information. See Giordenello v. United States, 357 U. S. 480, 481, 486-487 (1958); Aguilar v. Texas, 378 U. S. 108, 112-114 (1964).