Amicus Brief — Gerstein v. Pugh

IN THE —

SUPREME COURT OF THE UNITED states’

October Term, 1973

No. 73-477

RICHARD E. GERSTEIN, State Attorney for

the Eleventh Judicial Circuit of Florida,

in and for Dade County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all

others similarly situated, and

THOMAS TURNER and GARY FAULK, on their

own behalf and on behalf of all others

similarly situated,

Respondents.

BRIEF OF AMICUS CURIAE (STATE OF FLORIDA)

IN SUPPORT OF THE PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS IN AND FOR THE FIFTH CIRCUIT

ROBERT L. SHEVIN

Attorney General

RAYMOND L. MARKY

Assistant Attorney

General

GEORGE R. GEORGIEFF

Assistant Attorney

General

The Capitol Bldg.

Tallahassee, Florida

i

TOPICAL INDEX

Pages

PRELIMINARY STATEMENT........-e2+. lL

QUESTION PRESENTED.......-+eeee0+- 2

ARGUMENT... .cceccccccccccccecccess 2°20

CONCLUSION... ccccccccccccccccssese 20

CERTIFICATE OF SERVICE.....-.++++- 21

AUTHORITIES CITED

CASES Pages

Berea College v. Kentucky,

211 U.S. 45, S3.cccccccccccsccee 12

Callendar v. Florida,

380 U.S. 519, 14 L.ed.2d 265,

SS S.CO. L5BS (IPSS) ccccccccecece AZ

Callendar v. Florida,

383 U.S. 270, 15 L.ed.2d 749,

86 Be Gee 924 ll 13

Coleman v. Alabama,

399 U.S. l a) 7-8

Coolidge v. New Hampshire,

403 U.S. 443 oo 5

ii

Dresner v. Tallahassee,

375 U.S. 136, 11 L.ed.2d 208,

84 S.Ct. 2 SPT rTrTrrrrrerr 12-13

Fox Film Corp. v. Muller,

296 U.S. ee 12

Hurtado v. California,

110 U.S. 516 (1884)... ccccccee §

Morrissey v. Brewer,

408 U.S. 471 oo) 5-6

Murdock v. Memphis,

20 Wall. 590 (1875)........... 12

Seripto, Inc. v. Carson,

362 U.S. 207, 4 L.ed.2d 660,

80 §.Ct. Pte eeebdeebseeeeeooe 12

State v. Hernandez,

217 So.2d 109 (Fla. 1968)..... 8

Trupiano v. United States,

334 U.S. 699 (1948).........2. 5

RULES

Rule 3.13l(a), Florida Rules of

Criminal Procedure..........+. 2,5,6

Rule 5(c), Federal Rules of Crim-

BROS POGGIO c cccescccccccece Be

iii

Rule 3.130, Florida Rules of

Criminal Procedure........+++ 7,9

Rule 3.191, Florida Rules of

Criminal Procedure.........+-+ 7,10

Rule 3.220, Florida Rules of

Criminal Procedure.........++ 7,8,9

Rule 5.1, Federal Rules of Crim-

inal Procedure.....eeeeeeeeee 9

Rule 4.61, Florida Appellate Rules,

31 PeBobc Ce eeeeeeeseeeeseeeses 9

Article V, §2, Constitution of

Florida, Vol. 3, Fla.Stat.

CAS UEP coseesecseeecececoeeeese 14

Rules 3.120, 3.130, 3.131, Florida

Rules of Criminal Procedure.. 14

Article V, §5, Constitution of

Florida, Vol. 3, Florida

Statutes CAOTA) cccccceccsceces 14

Article V, §6, Constitution of

Florida, Vol. 3, Florida

Statutes CASTE) cocccceseeeses 14

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No. 73-477

RICHARD E. GERSTEIN, State Attorney for

the Eleventh Judicial Circuit of Florida,

in and for Dade County,

Petitioner,

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all

others similarly situated, and

THOMAS TURNER and GARY FAULK, on their

own behalf and on behalf of all others

similarly situated,

Respondents.

BRIEF OF AMICUS CURIAE (STATE OF FLORIDA)

IN SUPPORT OF THE PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS IN AND FOR THE FIFTH CIRCUIT

PRELIMINARY STATEMENT

Comes now the State of Florida, by and

through its Attorney General, and files

its brief Amicus Curiae in the above-

styled cause on behalf of Petitioner.

Amicus adopts in toto the position

taken by Petitioner in the brief hereto-

fore filed in this Court, and in addi-

tion thereto submits the cause should be

reversed for the reasons stated herein-

after.

_=

QUESTION PRESENTED

THE UNITED STATES COURT OF AP-

PEALS ERRED IN HOLDING THAT

ARRESTEES HELD FOR TRIAL UPON

INFORMATIONS FILED BY THE STATE

ATTORNEY MUST BE AFFORDED PRE-

LIMINARY HEARINGS BEFORE A

JUDICIAL OFFICER WITHOUT UN-

NECESSARY DELAY NOTWITHSTANDING

RULE 3.131(a), FLORIDA RULES

OF CRIMINAL PROCEDURE.

ARGUMENT

The United States Court of Appeals,

as well as the District Court, held that

the Fourth and Fourteenth Amendments af-

firmatively require that arrestees held

for trial upon informations filed by the

state attorney must be afforded prelimi-

nary hearings before a judicial officer

without unnecessary delay, in effect

declaring Rule 3.13l(a), Florida Rules

of Criminal Procedure, unconstitutional,

for said Rule dispenses with preliminary

hearings to a defendant charged by an

information or indictment.

lgubsection (b) of said Rule was wholly

misconstrued by the Court of Appeals for

that section only pertains to persons who

have not been indicted or informed, but

who have been arrested on a warrant or

in some cases without one. It does not

mean persons charged by indictment or in-

formation are entitled to a preliminary

examination within 72 hours.

o}-

The lower courts both recognized the

nonnecessity of a preliminary examination

wherein an indictment is returned against

the accused, which is not surprising in

light of this Court's Rule 5, Federal

Rules of Criminal Procedure. Subsection

(c) provides:

"(c) Offenses Not Triable

by the United States Magis-

trate.

"A defendant is entitled to

a preliminary examination,

unless waived, when charged

with any offense, other than

a petty offense, which is

to be tried by a judge of

the district court. If the

defendant waives preliminary

examination, the magistrate

shall forthwith hold him to

answer in the district court.

If the defendant does not

waive the preliminary exam-

ination, the magistrate shall

schedule a preliminary exam-

ination. Such examination

shall be held within a reason-

able time but in any event

not later than 10 days follow-

ing the initial appearance if

the defendant is in custody

and no later than 20 days if

he is not in custody, pro-

vided, however, that the pre-

limina examination shall

not be Cra if the defendant

for

age

before the date set for the

preliminary examination.

; i ad [Exphasts Supplied]

The lower court's conclusion that a

preliminary examination could not be dis-

pensed with where the defendant is held

pursuant to a charge contained in an in-

formation, but such could be done where

the accused is charged by an indictment

was in no way explained by either tribunal.

If one procedural method offends due pro-

cess and the other does not, then it would

necessarily follow that there is a sub-

stantial difference in the two methods.

The State of Florida suggests the dif-

ferences that may exist are more illusion-

ary than real. It is the same state

attorney who draws a direct information,

based upon testimony presented to him

under oath, who brings the evidence to

the grand jury, advises them as to the

various laws that might be involved and

in most cases makes a recommendation as

to whether they should indict or not.

Indeed, there are many individuals who

suggest that the grand jury has out lived

its usefulness because of the power exerted

over them by the over-zealous prosecutor.

Of course, grand jurors are lay persons

selected from the community at large and

under no circumstance can they be consi-

dered a “judicial magistrate." If one

is intellectually honest about the matter,

he must admit that while there may be a

distinction between the two methods in

law, there is virtually no difference in

fact or in substance. Needless to say,

.f one is truly concerned with substance,

different principles cannot be applied in

-§-

cases where a person is charged by an in-

dictment on one hand and by an information

on the other.

It is specifically because of the fact

that there is no difference that the

Florida Supreme Court saw fit to adopt

3.13l1(a), Florida Rules of Criminal Pro-

cedure, dispensing with preliminary hear-

ings if the defendant is charged in an

information or indictment and is perhaps

why this Court did the same in Rule 5,

Federal Rules of Criminal Procedure.

The Court of Appeals’ reliance upon

Coolidge v. New Hampshire, 403 U.S. 443

(1970) and Morrissey v. Brewer, 408 U.S.

471 (1971) is clearly misplaced. Coolidge

v. New Hampshire dealt with the issuance

of a warrant to justify the seizure of

property, and this Court held a warrant

had to be issued by a neutral magistrate

under the Fourth Amendment of the United

States Constitution. Coolidge did not

hold that subsequent to the seizure there

had to be a judicial examination to de-

termine whether there was a basis to con-

tinue to hold the evidence. The Coolidge

case is simply not applicable for if it

were, the plaintiffs would have been

asserting that they could not be arrested

without a warrant issued by a judicial

officer, a proposition this Court rejected

in Truptano v. United States, 334 U.S. 699

(1948), or that they haa to have a pre-

liminary examination prior to the filing

of an information, a proposition this

Court repudiated in Hurtado v. California,

110 U.S. 516 (1884).

In Morrissey v. Brewer, supra, this

Court held a parolee was entitled to a

prompt hearing to determine probable cause

before someone not directly involved with

the alleged violator. This Court did not

require that it be before a judicial of-

ficer, just someone not directly involved

with the parolee. That is precisely what

the state attorney is! In this respect,

Rule 3.13l(a) is consistent with the

rationale of Morrissey, not antagonistic

to it. Moreover, and perhaps more im-

portantly is the uniqueness of the insti-

tution of parole itself. In Morrissey,

the Court observed that the revocation

hearings were often times held in places

far removed from the place where the vio-

lation occurred and without compulsory

process the parolee could not adequately

present a defense to the charge. It was

this very fact which caused this Court to

hold that due process required there be

a “minimal inousry near the place of the

alleged paroie violation." No such prob-

lem exists in a criminal case, for the

defendant must be tried in the county

wherein the crime is committed and a de-

fendant in a criminal trial Clearly has

the right to compulsory process of wit-

nesses. Accordingly, a Morrissey hearing

in the context of a criminal trial serves

no valid purpose and certainly the absence

of such a hearing does not violate the

Due Process contemplated in Morrissey.

The State of Florida urges that the

dispensation of preliminary examinations

wherein an information is filed should

be approved by this Court for the same

reasons that it is dispensed with when a

person is charged by an indictment, and

that due process is not offended thereby.

~~

Examination of the Florida Rules of

Criminal Procedure, specifically Rules

3.130, 3.191, and 3.220 will reveal that

in light of those procedural safeguards

due process is not violated by the failure

to provide for preliminary hearings where

the accused is charged by an information

or indictment.

In Coleman v. Alabama, 399 U.S. 1 (1970),

this Court held due process required the

appointment of counsel to represent an

indigent at a preliminary hearing because

in Alabama it was a critical stage of the

criminal proceeding. This Court, of course,

did not hgld the state had to hold such

hearings,“ but merely that where one was

held counsel had to be provided. The

Court in concluding such hearings were

"critical stages" of the proceedings noted

the advantages to be gained by the defen-

dant saying:

"'Pirst, the lawyer's skilled

examination and cross-examination

of witnesses may expose fatal

weaknesses in the State's case

that may lead the magistrate to

refuse to bind the accused over.

2interestingly, Mr. Justice White's special

concurring opinion assumed such hearings

could be dispensed with for he opined, "Our

ruling may also invite eliminating the pre-

liminary hearing system entirely" 399 U.S.

at 18. Obviously, if the constitution re-

quired them they could not be eliminated.

Second, in any event, the skilled

interrogation of witnesses by

an experienced lawyer can fashion

a vital impeachment tool for use

in cross-examination of the State's

witnesses at the trial, or pre-

serve testimony favorable to the

accused of a witness who does

not appear at the trial. Third,

trained counsel can more effec-

tively discover the case the

State has against his client

and make possible the prepara- .

tion of a proper defense to

meet that case at the trial.

Fourth, counsel can also be

influential at the preliminary

hearing in making effective

arguments for the accused on

such matters as the necessity

for an early psychiatric ex-

amination or bail.'"

399 U.S. at 9

Under Florida law the interests or

rights referred to above are readily

available to the defendant without a

preliminary hearing ever being held.

Florida law clearly authorizes the

prosecuting officer to file an information

against the accused even if no probable

cause has been found. State v. Hernandes,

217 So.2d 109 (Fla. 1968), Florida's

discovery rules, to-wit: Rule 3.220, are

the most comprehensive rules of discovery

in the United States, and under those

rules he has a right to take the deposition

of all of the witnesses the state intends

to use at trial. Rule 3.220(d) These

-9-

depositions may be taken "at any time after

the filing of the indictment or information."

This discovery together with evidence the

state attorney must disclose to the de-

fendant and his counsel for inspection and

copying under Rule 3.220(a) and (b) provides

the defendant with ample “impeachment tools

for use in cross-examination of the State's

witnesses at the trial", and insures that

he will be able to prepare a “proper defense.

Indeed, when one considers that a preliminary

hearing can be conducted without all of

the State's witnesses and may rest solely

on hearsay evidence "in whole or in part",

Rule 5.1, Federal Rules of Criminal Pro-

cedure, use of the discovery rules is better

designed to provide the defendant with the

information this Court indicated he might

obtain at a preliminary hearing.

Insofar as acting as a conduit to bail

Or psyciatric examinations, the preliminary

hearing is totally unnecessary in this

State. Rule 3.130, Florida Rules of

Criminal Procedure requires a first ap-

pearance within 24 hours of arrest,3.130

(b) (1), and it is at this hearing that

the trial judge is to determine whether

bail is even necessary to assure the de-

fendant's appearance for he may release

him on his own recognizance and, of course,

tre defendant is “entitled as of right to

be admitted to bail before conviction",

3.130(b) (4), unless the offense charged

is a capital offense or an offense punish-

able by life imprisonment, in which case

the proof of guilt must be evident or

the presumption great. Since bail is

determined prior to the time that any

-10-

meaningful preliminary hearing could be

held,” such a hearing could have no rele-

vancy or bearing upon bail. Rule 3.210

provides for an inquiry into the defendant's

sanity on motion at any time before or

during trial and the preliminary hearing

is not needed for this purpose.

Florida's mandatory speedy trial rule,

Rule 3.191, osapl thekts the rights referred

to above, and it is respectfully suggested

that in this State no substantial right

is denied to an individual accused with

the commission of a crime because he is

not afforded a preliminary examination

where he has been charged by an indict-

ment or information. The district court

erred in concluding due process required

3ohe Respondents object to the alleged

timeliness of the preliminary hearing and

the district court was concerned about the

fact that a "...deprivation of liberty for

four days, absent a judicial determination

of probable cause, is questionable..."

(App. 111) This is indeed strange, for

this Court's Rules provide the magistrate

shall schedule a preliminary examination

within a “reasonable time. . . not later

than 10 days following the initial appear-

ance if the defendant is in custody..."

Rule 5(c)! The Court's conclusion that

"...an eight day (24 hours for initial ap-

pearance plus seven days) deprivation of

liberty is not reasonable..." (App. 111)

is clearly erroneous under Rule 5(c).

-ll-

such hearings and the Court of Appeals,

Fifth Circuit, erred in affirming such

conclusion.

Florida's recently amended Rules of

Criminal Procedure which were designed

to "...secure the just, speedy and ef-

ficient disposition of criminal cases..."

Rule 3.025(a) represents an experiment

by one state to devise a criminal justice

System that will work better than the

System that everyone admits is fraught

with delay, surprise and injustice.

Isolated portions, without regard to the

whole were, in effect, declared uncon-

stitutional before they were even im-

plemented and put into use. What makes

this so incomprehensible was that the

rule faulted was modeled to a great ex-

tent after this Court's rules pertaining

to first appearances, the difference

being that preliminary hearings are dis-

pensed with where the defendant is charged

by an indictment or an information under

Florida's Rules. As has been urged above,

the two methods of charging are so similar,

in fact, that this modification of the

= no way alters its substantive

worth.

The United States Court of Appeals,

Fifth Circuit, erred in concluding under

Florida prosecutorial rules an individual

charged with a crime by an information

must be accorded a preliminary examination,

and the failure to do so violates due pro-

cess of law. This Court should reverse

said holding.

-12-

Whether the decision of the Fifth

Circuit Court of Appeals can invest a

lesser tribunal (magistrate-county judge)

with jurisdiction sufficient to disturb

the custody of a defendant held in jail

as a result of having been charged by

information with a crime in Florida is

what this Court must decide.

The Supreme Court of Florida is the

final and unreviewable interpreter of

Florida law and, with respect to matters

of state law, the decisions of that court

binds everyone. Scripto, Inc. v. Carson,

362 U.S. 207, 4 L.ed.2d 660, 80 S.Ct.

619; Murdock v. Memphis, 20 Wall. 590

(1875); Berea College v. Kentucky, 211

U.S. 45, 53; Fox Film Corp. v. Muller,

296 U.S. 207. As recently as 1964, this

very Court in pursuance of Rule 4.61,

Florida Appellate Rules, 31 F.S.A.,

requested of the Florida Supreme Court a

decision by that tribunal regarding the

jurisdiction of the several courts

involved in that case so “hat it could,

in turn, determine whether matters pend-

ing before it should be disposed of in

one as opposed to another fashion.

Dresner v. Tallahassee, 375 U.S. 136, 1l

L.ed.2d 208, 84 S.Ct. 235. After having

received the opinion of the Florida

Supreme Court, the matters involved as to

<< ete

-13-

Dresner were dismissed this Cc

the following Senos’? ee

"PER CURIAM,

The questions which this

Court certified to the

Supreme Court of Plorida, 375

U.S. 136, 11 L.Bd.24 208, 84

S.Ct. 235, having been

answered in the affirmative,

164 So.2d 208, the writ of

certiorari is dismissed as

improvidently granted. 28

USC § 1257." 378 U.S. 539,

12 L.ed.2d 1018, 84 S.Ct.

1895. : _

Again, this Court in Callendar v.

Florida, 380 U.S, 519, 85 S.Ct. 1325, 14

L.ed.2d 265 (1965), and Callendar v.

Florida, 383 U.S, 270, 15 L.ed.2da 749,

86 S.Ct. 924 (1966), recognized that it

was bound by the Florida Supreme Court's

determination r ardi the

of courts in vidian —

It follows that this Court has repeat-

edly recognized the exclusive authority

of the Florida Supreme Court to deter-

mine the jurisdiction of the several

courts of the State of Florida. See

Dreener v. Tallahassee, supra, and

Callendar v. State, supra.

-14-

By operation of law (Article V,

Section 2, Constitution of the State of

Florida, see addendum at page 1307

through 1312 of Volume 3, Florida Stat-

utes, 1971), the Florida Supreme Court

is vested with the exclusive authority

to promulgate rules and regulations

regarding both jurisdiction and practice

in the several courts of the state. It

has adopted what is known as Florida

Rules of Criminal Procedure, effective

February 1, 1973, wherein the procedure

to be followed with regard to arrestees

is set out therein and in particular in

Rules 3.120, 3.130 and 3.131.

That same Article V, Section 5, sets

forth the jurisdiction of the circuit

courts of the State of Florida, and

Section 6 thereof sets forth the juris-

diction of the county courts. It may be

easily noted that the circuit courts

have jurisdiction of all matters not

vested in the county courts.

When an individual is indicted or

informed against in the State of Florida,

those formal charges are routinely filed

with the clerk of the circuit court where

the charge is brought, thereby vesting

the circuit court with jurisdiction of

the accused and the subject matter until

such time as the issues have been dis-

posed of. Obviously the circuit court

has jurisdiction to dispose of all

matters relating to that formal charge

and in so doing is reviewable on appeal

-15-

as a matter of right to the appropriate

district court of appeal or to the

Plorida Supreme Court as the case may be.

The criminal jurisdiction of the

county court is limited to misdemeanors.

Accordingly, they are, in the judicial

structure of the State of Florida, a

lesser tribunal--in short they are

Florida's magistrates much as the former

United States Commissioners are now

federal magistrates. In that posture

their jurisdiction no more permits them

to invade the province of the circuit

court regarding the custody of an

accused against whom an information has

been filed than could a federal magis-

trate invade the province of a Federal

District Court once an accused has been

informed against. Only the circuit

court or a district court of appeal or

the Florida Supreme Court, or conceivably

this Court, has authority to alter the

custody of an individual so confined.

By ruling as it did in the decision

below, the Court of Appeals purported to

vest the several magistrates (county

judges) in Florida with jurisdiction to

review an accused's custody ostensibly

on the theory of a preliminary hearing.

The net effect of this is to permit (by

dint of an impossible judicial fiat)

Florida's lbwest court to override the

authority of a Florida circuit court,

even to the point of ordering the

release of an accused theretofore con-

-16-

trolled only by the circuit court or by

the other courts above it mentioned pre-

viously. The Florida Supreme Court has

never vested magistrates with that kind

of authority~-they do not now have it--

and they cannot be given it, however

desirable that conclusion may appear to

the Court of Appeal below.

The upshot of the action taken by the

Court of Appeals in this matter, is that

an allegedly impartial magistrate is the

key which insures that due process

attends the proceedings they reviewed.

Apparently no one involved in this

litigation quarrels with the proposition

that a given state attorney in Florida

is free to file informations by virtue

of the authority vested in him to so do

under Florida law. It also seems appar-

ent that nobody quarrels with the propo-

sition that at preliminary hearings for

those arrested on a warrant (no indict-

ment o> information having been filed) a

magistrate in Florida is free within the

bounds of propriety to either find

probable cause and bind one over for

trial, or find its absence and order his

release. Accordingly, some questions

must arise as to whether this magistrate's

preliminary hearing is, in fact, any key

-l17-

at all.

Ostensibly, the only difference between

the matter set out immediately above and

the following, is that an information has

been filed and the individual has been

arrested on a capias based thereon. In

either instance, no particular arguments

would arise in those cases in which the

magistrate found probable cause and

entered an order binding the accused over

for trial in the circuit court. We ask,

“Suppose he finds an absence of probable

cause and orders the individual released

from custody under the charge?" Not in

either instance would such an order pro-

hibit the state attorney from thereafter

filing his information, securing a

captas, and having the accused arrested

thereon and confined as a result thereof.

By like token in the initial illustration

of an individual arrested on a warrant

without an information or an indictment

having been filed against him, a finding

of probable cause by the magistrate

accompanied by an order binding him over

en does not require the state

a to bring any cha S against

the individual either by iabtotions or

information--that being the province of

the state attorney's good judgment alone.

So it is that four possibilities

exist in the relationship of the office

of the state attorney and that of Florida's

county judge-magistrate:

-18-

1. Finding of probable cause by

a magistrate against an indi-

vidual routinely arrested but

neither indicted nor informed

ayainst.

2. A finding of a lack of prob-

able cause by a magistrate

against an individual routinely

arrested but neither indicted

nor informed against.

3. A finding of probable cause

against an individual

arrested based upon an in-

formation.

4. A finding of an absence of

probable cause for an indi-

vidual arrested based upon

an information.

Of these, certainly the situations involv-

ed in numbers 1, 2, and 4 have absolutely

no effect upon the subsequent action taken

by the state attorney with regard to the

individual involved.

It is at best doubtful that even the

situation set out in number 3 has any

effect upon the state attorney in terms of

a requirement that he continue to prose-

cute the arrestee against whom the magis-

trate has found probable cause. This is

so for the reason that the state attorney

is free to file in court his order nolle

prosequi at any time before the verdict

ee ee

2 ee ee

~ eee ee ee

-19-

is returned by the j - In this h -

not be challenged. =i ory

Since it is obvious that in virtually

all four of the only possible instances

that could arise the magistrate has

absolutely no controi over the disposi-

tion of the accused in terms of the

criminal charge, one must wonder at just

what, if anything, the opinion of the

Court of Appeals below was meant to

accomplish. Certainly it cannot be said

that the illegal detention of an accused

was its grail. Amicus has demonstrated

beyond question that such disposition

simply cannot be made by anyone who sits

in the capacity of a magistrate--certainly

never a county judge in the state of

Plorida--quite likely no other judge or

justice at any time prior to trial unless

on a petition for writ of habeas corpus

urging a total absence of any evidence.

If the magistrate and the preliminary

hearing are to be the key which we sub-

mit can be the only intention of the

decision of the Court of Appeals, then

such a key must both lock and unlock

the door to an arrestee's custody

regardless of what prompted the arrest.

Since it could not be the key before the

decision of the Court of Appeals and

cannot be as a result of it, it should

be characterized as just what it is

(in light of this Court's own decisions

in matters ‘virtually identical to this

Situation in all particulars and this

-20- | -21-

Court's own rules of procedure dealing |

with identical matters)--a judicial CERTIFICATE OF SERVICE

futility.

I, GEORGE R. GEORGIEFF, Counsel for

CONCLUSION | Amicus Curiea, and a member of the Bar of

the United States, hereby certify that

For these reasons, Amicus respectfully | on the day of January, 1974, I

served copies of the Brief of Amicus

urges this Court to reverse the holding

Curtae on Bruce Rogow, Esquire, 733 City

of the Court of Appeals in and for the

Pith Cioeshe tm ante ‘Gaede. National Bank Building, Miami, Florida,

and Phillip A. Hubbart, Esquire, Counsel

Respectfully submitted: for Respondents; and Peter L. Nimkoff,

Esquire, Suite 607, Ainsley Building, 14

ROBERT L. SHEVIN N.E. First Avenue, Miami, Florida, and

ATTORNEY GENERAL Lewis Jepeway, Jr., Esquire, 101 E.

Flagler Street, Miami, Florida, by a

dvly addressed envelope with postage

prepaid.

By

Raymond L. Marky

. Assistant Attorney

General

George R. Georgieft

And: ) Assistant Attorney

General

By

George R. Georgiett

Assistant Attorney

General

The Capitol Building

Tallahassee, Florida

32304

Counsel for Amicus

Curiae