Opinion — Gerstein v. Pugh

(Slip Opinion)

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SUPREME COURT OF THE UNITED STATES

Syllabus

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GERSTEIN v. PUGH et At.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 73-477. Argued March 25, 1974—Reargued October 21, 1974—

Decided February 18, 1975

1. The Fourth Amendment requires a judicial determination of prob-

able cause as a prerequisite to extended restraint of liberty follow-

ing arrest. Accordingly, the Florida procedures challenged here

whereby a person arrested without a warrant and charged by

information may be jailed or subjected to other restraints pending

trial without any opportunity for a probable cause determination

are unconstitutional. Pp. 7-15.

(a) The prosecutor’s assessment of probable cause, standing

alone, does not meet the requirements of the Fourth Amendment

and is insufficient to justify restraint of liberty pending trial.

Pp. 13-15.

(b) The Constitution does not require, however, judicial over-

sight of the decision to prosecute, by information, and a conviction

will not be vacated on the ground that the defendant was detained

pending trial without a probable cause determination. P. 15.

2. The probable cause determination, as an initial step in the crim-

-. inal justice process, may be made by a judicial officer without an

adversary hearing. Pp. 15-21.

(a) The sole iss 2 is whether there is probable cause for detain-

ing the arrested person pending further proceedings, and this is-

sue can be determined reliably by the use of informal procedures.

Pp. 16-18.

(b) Because of its limited function and its nonadversary char-

acter, the probable cause determination is not a “critical stage”

in the prosecution that would require appointed counsel. Pp. 18-19.

483 F. 2d 778, affirmed in part, reversed in part, and remanded.

I

1 GERSTEIN v. PUGH

Syllabus

PowE L, J., delivered the opinion of the Court, in Parts I and II

of which all other Members joined, and in Parts III and IV of which

Burcer, C. J., and Wurte, Blackmun, and Rexnauist, JJ., joined.

Stewart, J., filed a concurring opinion, in which Doucias, BRENNAN,

and MarsHa tL, JJ., joined.

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GRIN HR PEN CS

NOTICE : This opinion is subject to formal revision before Dan agnenagyest

in the preliminary print of the United States Reports. Readers are re-

uested to notify the Reporter of Decisions, Supreme Court of the

Jnited States, Washington, D.C. 20543, of any typographical or other

formal errors, in order that corrections may be made before the pre-

liminary print goes to press. :

SUPREME COURT OF THE UNITED STATES

No. 73-477

Richard E. Gerstein, State At-

torney for Eleventh Judicial |On Writ of Certiorari

Circuit of Florida, to the United States

Petitioner, Court of Appeals for

v the Fifth Circuit.

Robert Pugh et al.

[February 18, 1975]

Mr. Justice Powe. delivered the opinion of the

Court.

The issue in this case is whether a person arrested

under a prosecutor’s information is constitutionally en-

titled to a judicial determination of probable cause for

pretrial restraint of liberty.

I

In March 1971 respondents Pugh and Henderson were

arrested in Dade County, Florida. Each was charged

with several offenses under a prosecutor’s information.’

Pugh was denied bail because one of the charges against

him carried a potential life sentence, and Henderson re-

mained in custody because he was unable to post a $4,500

bond.

1 Respondent Pugh was-arrested on March 3, 1971. On March 16

an information was filed charging him with robbery, carrying a con-

cealed weapon, and possession of a firearm during commission of a

felony. Respondent Henderson was arrested on March 2, and charged

by information on March 19 with the offenses of breaking and

entering and assault and battery. The record does not indicate

whether there was an arrest warrant in either case.

Pat ais) sins.

2 GERSTEIN v. PUGH

In Florida, indictments are required only for prosecu-

tion of capital offenses. Prosecutors may charge all other

crimes by information, without a prior preliminary hear-

ing and without obtaining leave of court. Fla. Rule

Crim. Proc. 3.140 (a) ; State v. Hernandez, 217 So. 2d 109

(Fla. 1968); Di Bona v. State, 121 So. 2d 192 (Fla. Ct.

App. 1960). At the time respondents were arrested, a

Florida rule seemed to authorize adversary preliminary

hearings to test probable cause for detention in all cases.

Fla. Rule Crim. Proc. 1.122 (amended 1972). But the

Florida courts had held that the filing of an information

foreclosed the ruspect’s right to a preliminary hearing.

See State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla.

1972).*2, They had also held that habeas corpus could not

be used, except perhaps in exceptional circumstances, to

test the probable cause for detention under an informa-

tion. See Sullivan v. State ex rel. McCrory, 29 So. 2d

794, 797 (Fla. 1951). The only possible methods for ob-

taining a judicial determination of probable cause were a

special statute allowing a preliminary hearing after 30

‘days, Fla. Stat. Ann, § 907.045 (1973),° and arraignment,

which the District Court found was often delayed a month

or more after arrest. Pugh v. Rainwater, 332 F. Supp.

1107, 1110 (SD Fla. 1971). Asaresult, a person charged

? Florida law also denies preliminary hearings to persons confined

under indictment, see Sangaree v. Hamlin, 235 So. 2d 729 (Fla. 1970) ;

Fla. Rule Crim. Proc. 3.131 (a), but that procedure is not challenged

in this case. See n. 19, post, at 14.

3 This statute may have been construed to make the hearing per-

missive instead of mandatory. See Evans v. State, 197 So. 2d 323

(Fla. Ct. App. 1967); Fla. Op. Att’y Gen. 067-29 (1967). But cf.

Karz v. Overton, 249 So. 2d 763 (Fla. Ct. App. 1971). It may also

have been superseded by the subsequent amendments to the rules of

criminal procedure. Jn re Florida Rules of Criminal Procedure,

272 So. 2d 65 (1972).

*The Florida rules do not suggest that the issue of probable

cause can be raised at arraignment, Fla. Rule Crim. Proc. 3.160, but

GERSTEIN v. PUGH 3

by information could be detained for a substantial period

solely on the decision of a prosecutor.

Respondents Pugh and Henderson filed a class action

against Dade County officials in the Federal District

Court,® claiming a constitutional right to a judicial hear-

ing on the issue of probable cause and requesting declara-

tory and injunctive relief... Respondents Turner and

Faulk, also in custody under informations, subsequently

intervened.’ Petitioner Gerstein, the State Attorney for

Dade County, was one of several defendants.®

After an initial delay while the Florida legislature con-

sidered a bill that would have afforded preliminary hear-

ings to persons charged by information, the District Court

granted the relief sought. Pugh v. Rainwater, supra.

The court certified the case as a class action under Fed.

counsel for Petitioner represented at oral argument that arraign-

ment affords the suspect an opportunity to “attack the sufficiency of

the evidence to hold him.” Tr. of Oral Arg., Mar. 25, 1974, at 17.

The Court of Appeals assumed, without deciding, that this was true.

483 F. 2d 778, 781 n. 8.

5 The complaint was, framed under 42 U. S. C. § 1983, and juris-

diction in the District Court was based on 28 U. S. C. § 1343 (3).

6 Respondents did not ask for release from state custody, even as

an alternate remedy. They asked only that the state authorities be

ordered to give them a probable cause determination. This was

also the only relief that the District Court ordered for the named

respondents, 332 F. Supp., at 1115-1116. Because release was

neither asked nor ordered, the lawsuit did not come within the class

of cases for which habeas corpus is the exclusive remedy. ‘Preiser v.

Rodriguez, 411 U. S. 475 (1973); see Wolff v. McDonnell, 417 U. S.

—,— (1974).

Li Tomer was being held on a charge of auto theft, following arrest

on March 11, 1971. Faulk was arrested on March 19 on charges

of soliciting a ride and possession of marihuana.

8 The named defendants included justices of the peace and judges

of small-claims courts, who were authorized to hold preliminary

hearings in criminal cases, and a group of law enforcement officers

with power to make arrests in Dade County. Gerstein | was the only

one who petitioned for certiorari.

4 GERSTEIN v. PUGH

Rule Civ. Proc. 23 (b)(2), and held that the Fourth and

Fourteenth Amendments give all arrested persons charged

by information a right to a judicial hearing on the ques-

tion of probable cause. The District Court ordered the

Dade County defendants to give the named plaintiffs an

immediate preliminary hearing to determine probable

cause for further detention.® It also ordered them to

submit a plan providing preliminary hearings in all cases

instituted by information.

The defendants submitted a plan authored by Sheriff

E. Wilson Purdy, and the District Court adopted it with

modifications. The final order prescribed a detailed post-

arrest procedure. 336 F. Supp. 490. Upon arrest the

accused would be taken before a magistrate for a “first

appearance hearing.” The magistrate would explain the

charges, advise the accused of his rights, appoint counsel

if he was indigent, and proceed with a probable cause

determination unless either the prosecutor or the accused

was unprepared. If either requested more time, the

magistrate would set the date for a “preliminary hearing,”

to be held within four days if the accused was in custody

and within 10 days if he had been released pending trial.

The order provided sanctions for failure to hold the hear-

ings at prescribed times. At the “preliminary hearing”

the accused would be entitled to counsel, and he would be

allowed to confront and cross-examine adverse witnesses,

®The District Court correctly held that respondents’ claim for

relief was not barred by the equitable restrictions on federal inter-

vention in state prosecutions, Younger v. Harris, 401 U.S. 37 (1971).

The injunction was not directed at the state prosecutions as such,

but only at the legality of pretrial detention without a judicial hear-

ing, an issue that could not be raised in defense of the criminal

prosecution. The order to hold preliminary hearings could not

prejudice the conduct of trial on the merits. See Conover v. Monte-

muro, 477 F. 2d 1073, 1082 (CA3 1973); cf. Perez v. Ledesma, 401

U. S. 82 (1971); Stefanelli v. Minard, 342 U.S. 117 (1951). -

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GERSTEIN v. PUGH 5

to summon favorable witnesses, and to have a transcript

made on request. If the magistrate found no probable

cause, the accused would be discharged. He then could

not be charged with the same offense by complaint or in-

formation, but only by indietment returned ‘within 30

days. .

The Court of Appeals for the Fifth Circuit stayed the

District Court’s order pending appeal, but while the case

was awaiting decision, the Dade County judiciary volun-

tarily adopted a similar procedure of its own. Upon

learning of this development, the Court of Appeals re-

manded the case for specific findings on the constitu-

tionality of the new Dade County system. Before the

District Court issued its findings, however, the Florida

Supreme Court amended the procedural rules governing

preliminary hearings statewide, and the parties agreed

that the District Court should direct its inquiry to the

new rules, rather than the Dade County procedures.

Under the amended rules every arrested person must

be taken before a judicial officer within 24 hours. Fla.

Rule Crim. Proc. 3.130 (b). This “first appearance” is

similar to the “first appearance hearing” ordered by the

District Court in all respects but the crucial one: the mag-

istrate does not make a determination of probable cause.

The rule amendments also changed’ the procedure for:

preliminary hearings, restricting them to felory charges

and codifying the rule that no hearings are available to

persons charged by information or indictment. Rule

3.131; see In re Rule 3.131 (b), Florida Rules of Crim-

inal Procedure, 289 So. 2d 3 (Fla. 1974).

In a supplemental opinion the District Court held

that the amended rules had not answered the basic con-

stitutional objection, since a defendant charged by in-

formation still could be detained pending trial without

a judicial determination of probable cause. 355 F.Supp. - -

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1286. Reaffirming its original ruling, the District Court

declared that the continuation of this practice was uncon-

stitutional.’° The Court of Appeals affirmed, 483 F. 2d

778, modifying the District Court’s decree in minor par-

ticulars and suggesting that the form of preliminary hear-

ing provided by the amended Florida rules would be ac-

ceptable, as long as it was provided to all defendants in

custody pending trial. Jd., at 788-789.

State Attorney Gerstein petitioned for review, and we

granted certiorari because of the importance of the issue.”

414 U. S. 1062. We affirm in part and reverse in part.

10 Although this ruling held a statewide “legislative rule” unconsti-

tutional, it was not outside the jurisdiction of a single judge by vir-

tue of 28 U. S. C. § 2281. The original complaint did not ask for

an injunction against énforcement of any state statute or legislative

rule of statewide application, since the practice of denying prelim-

inary hearings to persons charged by information was then em-

bodied only in judicial decisions. The District Court therefore had

jurisdiction to issue the initial injunction, and the Court of Appeals

had jurisdiction over the appeal. On remand, the constitutionality

of a state “statute” was drawn into question for the first time when

the criminal rules were amended. The District Court’s supplemental

opinion can fairly be read as a declaratory judgment that the

amended rules were unconstitutional ; the injunctive decree was never

amended to incorporate that holding; and the opinion in the Court

of Appeals is not inconsistent with the conclusion that the District.

Court did not enjoin enforcement of the statewide rule. See.483 F.

2d, at 788-790. Accordingly, a-district court of three judges was not

required for the issuance of this order. See Kennedy v. Mendoza-

Martinez, 372 U. S. 144, 152-155 (1963); Flemming v. Nestor, 363

U. S. 603, 606-608 (1960).

11 At oral argument counsel informed us that the named respond-

ents have been convicted. Their pretrial detention therefore has

ended. This case belongs, however, to that narrow class of cases in

which the termination of a class representative's claim does not moot

the claims of the unnamed members of the class. See Sosna v. Jowa,

— U. S. — (1975). Pretrial detention is by nature temporary,

and it is most unlikely that any given individual could have his

GERSTEIN v. PUGH 7

II

As framed by the proceedings below, this case presents

two issues: whether a person arrested and held for trial

on an information is entitled to a judicial determination

of probable cause for detention, and if so, whether the

adversary hearing ordered by the District Court and

approved by the Court of Appeals is required by the

Constitution. . r

Both the standards and procedures for arrest and

detention have been derived from the Fourth Amend-

ment and its common-law antecedents. See Cupp v.

Murphy, 412 U. S. 291, 294-295 (1973); Ez parte

Bollman, 8 U. S. (4 Cranch) 75 (1807); Ex parte Bur-

constitutional claim decided on appeal before he is either released or

convicted. The individual could nonetheless suffer repeated depriva-

tions, and it is certain that other persons similarly situated will be

detained under the allegedly unconstitutional procedures. The claim,

in short, is one that is distinctly “capable of repetition, yet evading

review.”

At the time the complaint was filed, the named respondents were

members of a class of persons detained without a judicial probable

cause determination, but the record does not indicate whether any

of them were still in custody awaiting trial when the District Court

certified the class. Such a showing ordinarily would be required to

avoid mootness under Sosna. But this case is a suitable exception

to that requirement. See Sosna, supra, at — n. 11; ef. Rivera v.

Freeman, 469 F. 2d 1159, 1162-1163 (CA9 1972). The length of pre-

trial custody cannot be ascertained at the outset, and it may be ended

at any time by release on recognizance, dismissal of the charges, or

a guilty plea, as well as by acquittal or conviction after trial. It is

by no means certain that any given individual, named as plaintiff,

would be in pretrial custody long enough for a district judge to

certify the class. Moreover, in this case the constant existence of

a class of persons suffering the deprivation is certain. The attorney

representing the named respondents is a public defender, and we can

safely assume that he has other clients with a continuing live interest

in the case.

8 ' GERSTEIN v. PUGH

ford, 7 U.S. (3 Cranch) 448 (1806). The standard for

arrest is probable cause, defined in terms of facts and

circumstances “sufficient to warrant a prudent man in

believing that the [suspect] had committed or was com-

mitting an offense.” Beck v. Ohio, 379 U. S. 89, 91

(1964). See also Henry v. United States, 361 U.S. 98

(1959): Brinegar v. United States, 338 U.S. 160, 175-176

(1949). This standard, like those for searches and seiz-

ures, represents a necessary accommod:tion between the

individual’s right to liberty and the State’s duty to con-

trol crime.

“These Seacluabueiiien standards seek to safe-

guard citizens from rash and unreasonable inter-

ferences with privacy and from unfounded charges

of crime. They also seek to give fair leeway for

enforcing the law in the community’s protection.

Because many situations which confront officers in

the course of executing their duties are more or less

ambiguous, room must be allowed for some mistakes

on their part. But the mistakes must be those of

reasonable men, acting on facts leading sensibly to

their conclusions of probability. The rule of prob-

able cause is a practical, nontechnical conception

affording the best compromise that has been found

for accommodating these often opposing interests.

Requiring more would unduly hamper law enforce-

ment. To allow less would be to leave law-abiding

citizens at the mercy of the officers’ whim or caprice.”

Brinegar v. United States, supra, at 176.

To implement the Fourth Amendment’s protection

against unfounded invasions of liberty and privacy, the

Court has required that the existence of probable cause

be decided by a neutral and detached magistrate when-

ever possible. The classic statement of this principle

GERSTEIN v. PUGH 9

appears in Johnson v. United States, 333 U.S. 10, 13-14

(1948):

“The point of the Fourth Amendment, which often

is not grasped by zealous officers, is not that it denies

law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its pro-

tection consists in requiring that those inferences be

- drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime.”

See also Terry v. Ohio, 392 U.S. 1, 20-22 (1968).”

Maximum protection of individual! rights could be

assured by requiring a magistrate’s review of the factual

justification prior to any arrest, but such a requirement

would constitute an intolerable handicap for legitimate

law enforcement. Thus, while the Court has expressed a

preference for the use of arrest warrants when feasible,

Beck v. Ohio, supra, at 96; Wong Sun v. United States,

371 U. S. 471, 479-482 (1963), it has never invalidated

. an arrest supported by probable cause solely because the..

officers failed to secure a warrant. See Ker v. California,

374 U. S. 23 (1963); Draper v. United States, 358 U. S.

307 (1959) ; T'rupiano v. United States, 334 U.S. 699, 705

(1948).** :

12 We reiterated this principle in United States v. United States

District Court, 407 U. S. 297 (1972). In terms that apply equally

to arrests, we described the “very heart of the Fourth Amendment

directive” as a requirement that “where practical, a governmental

search and seizure should represent both the efforts of the officer

to gather evidence of wrongful acts and the judgment of the mag-

istrate that the collected evidence is sufficient to justify invasion of a

citizen’s private premises or conversation.” Jd., at 316. See also

Terry v. Ohio, 392 U.S. 1, 20-22 (1968)..

18 Another aspect of Trupiano was overruled in United States v.

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10 GERSTEIN v. PUGH

Under this practical compromise, a policeman’s on-the-

scene assessment of probable cause provides legal justifi-

cation for arresting a person suspected of crime, and for

a brief period of detention to take the administrative steps

incident to arrest. Once the suspect is in custody, how-

ever, the reasons that justify dispensing with the magis-

trate’s neutral judgment evaporate. There no longer is

any danger that the suspect will escape or commit further

crimes while the police submit their evidence to a magis-

trate.- -And, while the State’s reasons for taking summary

action subside, the suspect’s need for a neutral determina-

tion of probable cause increases significantly. The con-

sequences of prolonged detention may be more serious

than the interference occasioned by arrest. Pretrial con-

finement may imperil the suspect’s job, interrupt his

source of income, and impair his family relationships.

See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice

Is the Crime 51-62 (1972). Even pretrial release may be

accompanied by burdensome conditions that effect a sig-

nificant restraint on liberty. See, e. g., 18 U.S. C. § 3146

(a)(2), (5). When the stakes are this high, the detached

judgment of a neutral magistrate is essential if the Fourth

Amendment is to furnish meaningful protection from un-

founded interference with. liberty. _ Accordingly, we hold

that the Fourth Amendment requires a judicial deter-

mination of probable cause as a prerequisite to extended

restraint on liberty following arrest.

This result has historical support in the common law

Rabinowitz, 339 U. S. 56 (1950), which was overruled in turn by

Chimel v. California, 395 U. S. 752 (1969).

The issue of warrantless arrest that has generated the most con-

troversy, and which remains unsettled, is whether and under what

circumstances an officer may enter a suspect’s home to make a war-

rantless arrest. See Coolidge v. New Hampshire, 403 U.S. 443, 474—

481 (1971); id., at 510-512 n. 1 (Wuire, J., dissenting); Jones v.

United States, 357 U.S. 493, 499-500 (1958).

ta

GERSTEIN v. PUGH 11

that has guided interpretation of the Fourth Amend-

ment. See Carroll v. United States, 267 U. S. 132, 149

(1925). At common law it was customary, if not obliga-

tory, for an arrested person to be brought before a justice

of the peace shortly after arrest. 2M. Hale, Pleas of the

Crown 77, 81, 95, 121 (1736).; 2 W. Hawkins, Pleas of the

Crown 116-117 (4th ed. 1792). See also Kurtz v. Moffitt,

115 U.S. 487, 498-499 (1885)."* The justice of the peace

would “examine” the prisoner and the witnesses to deter-

mine whether there was reason to believe the prisoner

had committed a crime. If there was, the suspect would

be committed to jail or bailed pending trial. If not, he

would be discharged from custody. 1 M. Hale, supra, at

583-586; 2 W. Hawkins, supra, at 116-119; 1 J. Stephen,

History of the Criminal Law of England 233 (1883)."°

1*The primary motivation for the requirement seems to have

been the penalty for allowing an offender to escape, if he had in fact

committed the crime, and the fear of liability for false imprisonment,

if he had not. But Hale also recognized that a judicial warrant of

commitment, called a mittimus, was required for more than brief

detention.

“When a private person hath arrested a felon, or one suspected

of felony, he may detain him in custody till he can reasonably dis-

miss himself of him; but with as much speed as conveniently he can,

he may do either of these things.

“1. He may carry him to the common gaol, . . . but that is now

rarely done.

“2. He may deliver him to the constable of the vill, who may either

carry him to the common gaol, . . . or to a justice of peace to

be examined, and farther proceeded against as case shall require. .. .

“3. Or he may carry him immediately to any justice of peace of the

county where he is taken, who upon examination may discharge, bail,

or commit him, as the case shall require.

“And the bringing the offender either by the constable or private

person to a justice of peace is most usual and safe, because a gaoler

will expect a Mittimus for his warrant of detaining.”

i M. Hale, supra, at 589-590.

15The examination of the prisoner was inquisitorial, and the

witnesses were questioned outside the prisoner’s presence. Although

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The initial determination of probable cause also could be

reviewed by higher courts on a writ of habeas corpus.

2 W. Hawkins, supra, at 112-115; 1 J. Stephen, supra, at

243; see Ex parte Bollman, 8 U. S. (4 Cranch) 75, 97-

101 (1807). This practice furnished the model for

criminal procedure in America immediately following the

adoption of the Fourth Amendment, see Ez parte Boll-

man, 8 U.S. (4 Cranch) 75 (1807); ** Ex parte Burford,

7 U.S. (3 Cranch) 448 (1806) ; United States v. Hamilton,

3 U.S. (3 Dall.) 17 (1795), and there are indications that

the Framers of the Bill of Rights regarded it as a model

for a “reasonable” seizure. See Draper v. United States,

358 U.S. 307, 317-320 (1959) (Dove as, J., concurring).*’

this method of proceeding was considered quite harsh, 1 J. Stephen,

at 219-225, it was well established that the prisoner was entitled to be

discharged if the investigation turned up insufficient evidence of his

guilt. /d., at 233.

16TIn Ex parte Bollman, two men charged in the Aaron Burr case

were committed following an examination in the circuit court of

the District of Columbia. They filed a petition for writ of habeas

corpus in the Supreme Court. The Court, in an opinion by Chief

Justice Marshall, affirmed its jurisdiction to issue habeas corpus to

persons in custody by order of federal trial courts. Then, following

arguments on the Fourth Amendment requirement’ of probable cause,

the Court surveyed the evidence against the prisoners and held that

it did not establish probable cause that they were guilty of treason.

The prisoners were discharged.

17See also N. Lasson, The History and Development of the

Fourth Amendment to the United States Constitution 15-16 (1937).

A similar procedure at common law, the warrant for recovery of

stolen goods, is said to have furnished the model for a “reason-

able” search _under-the- Fourth Amendment. The victim was re-

quired to appear before a justice of the peace and make an oath

of probable cause that his goods could be found in a particular place.

After the warrant was executed, and the goods seized, the victim

and the alleged thief would appear before the justice of the peace

for a prompt determination of the cause for seizure of the goods

and detention of the thief. 2 M. Hale, supra, at 149-152; T. Taylor,

.GERSTEIN v. PUGH 13

B

Under the Florida procedures challenged here, a per-

son arrested without a warrant and charged by informa-

tion may be jailed or subjected to other restraints pending

trial without any opportunity for a probable cause

determination.’* Petitioner defends this practice on the

ground that the prosecutor’s decision to file an informa-

tion is itself a determination of probable cause that fur-

nishes sufficient reason to detain a defendant pending

trial. Although a conscientious decision that the evi-

dence warrants prosecution affords a measure of protec-

tion against unfounded detention, we do not think

prosecutorial judgment standing alone meets the require-

ments of the Fourth Amendment. Indeed, we think the

Court’s previous decisions compel disapproval of the

Florida procedure. In Albrecht v. United States, 273

U. S. 1, 5 (1927), the Court held that an arrest warrant

issued solely upon a United States Attorney’s information

was invalid because tie accompanying affidavits were de-

fective. Although the Court’s opinion did not explicitly

state that the prosecutor’s official oath could not furnish

probable cause, that conclusion was implicit in the judg-

ment that the arrest was illegal under the Fourth Amend-

ment.’® More recently, in Coolidge v. New Hampshire,

Two Studies in Constitutional Interpretation 24-25, 39-40 (1969) ;

see Boyd v. United States, 116 U. S. 616, 626-629 (1886).

18 A person arrested under a warrant would have received a prior

judicial determination of probable cause. Under Fla. Rule Crim.

Proc. 3.120, a warrant may be issued upon a sworn complaint that

states facts showing that the suspect has committed a crime. The

magistrate may also take testimony under oath to determine if there

is reasonable ground to believe the complaint is true.

19 By contrast, the Court has held that an indictment, “fair upon

its face,” and returned by a “properly constituted grand jury” con-

clusively determines the existence of probable cause and requires

issuance of an arrest warrant without further inquiry. Ez parte

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a GERSTEIN v. PUGH

403 U. S. 443, 449-453 (1971), the Court held that a

prosecutor’s responsibility to law enforcement is incon-

sistent with the constitutional role of a neutral and de-

tached magistrate. We reaffirmed that principle in Shad-

wick v. City of Tampa, 407 U. S. 345 (1972), and held

that probable cause for the issuance of an arrest warrant

must be determined by someone independent of police

and prosecution. See also United States v. United States

District Court, 407 U. S. 297, 317 (1972).” The reason

for this separation of functions was expressed by Justice

Frankfurter in a similar context:

“A democratic society, in which respect for the dig-

nity of all men is central, naturally guards against

the misuse of the law enforcement process. Zeal

in tracking down crime is not in itself an assurance

of soberness of judgment. Disinterestedness in law

enforcement does not alone prevent disregard of cher-

ished liberties. Experience has therefore counseled

United States, 287 U.S. 241, 250 (1932). See also Giordenello v.

United States, 357 U. 8. 480, 487 (1958). The willingness to let a

grand jury’s judgment substitute for that of a neutral and detached

magistrate is attributable to the grand jury’s relationship to the

courts and its historical role of protecting individuals from unjust

prosecution. See United States v. Calandra, 414 U. S. 338, 342-346

(1974).

“The Court had earlier reached a different result in Ocampo v.

United States, 234 U. S. 91 (1914), a criminal appeal from the

Philippine Islands. Interpreting a statutory guarantee substantially

identical to the Fourth Amendment, Act of July 1, 1902, c. 1369, § 5,

32 Stat. 693, the Court held that an arrest warrant could issue

solely upon a prosecutor’s information. The Court has since held

that interpretation of a statutory guarantee applicable to the Philip-

pines is not conclusive for interpretation of a cognate provision in

the Federal Constitution, Green v. United States, 355 U. S. 184,

194-198 (1957). Even if it were, the result reached in Ocampo

is incompatible with the later holdings of Albrecht, Coolidge, and

Shadwick.

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GERSTEIN v. PUGH 15

that safeguards must be provided against the dan-

gers of the overzealous as well as the despotic. The

awful instruments of.the criminal law cannot be

entrusted to a single functionary. The complicated

process of criminal justice is therefore divided into

different parts, responsibility for which is separately

vested in the various participants upon whom the

criminal law relies for its vindication.” McNabb v.

United States, 318 U.S. 332, 343 (1943).

In holding that the prosecutor’s assessment of probable:

cause is not sufficient alone to justify restraint on liberty

pending trial, we do not imply that the accused is en-

titled to judicial oversight or review of the decision to

prosecute. Instead, we adhere to the Court’s prior hold-

ing that a judicial hearing is not prerequisite to prosecu-

tion by information. Beck v. Washington, 369 U. S.

541, 545 (1962); Lem Woon v. Oregon, 229 U. S. 586

(1913). Nor do we retreat from the established rule

that illegal arrest or detention does not void a subsequent

conviction. Frisbie v. Collins, 342 U. S. 519 (1952);

Ker v. Illinois, 119 U. S. 436 (1886). Thus, as the Court

of Appeals noted below, although a suspect who is

presently detained may challenge the probable cause for

that confinement, a conviction will not be vacated

on the ground that the defendant was detained pending

trial without a determination of probable cause. 483

F. 2d, at 786-787. Compare Scarbrough v. Dutton, 393

F. 2d 6 (CA5 1968), with Brown v. Fauntleroy, — U. S.

App. D. C. —, 442 F. 2d 838 (1971), and Cooley v. Stone,

— U.S. App. D. C. —, 414 F. 2d 1213 (1969).

Ill

Both the District Court and the Court of Appeals

held that the determination of probable cause must be

accompanied by the full panoply of adversary safe-

5 tt LAND ATE SALLIE EEE ae

16 GERSTEIN v. PUGH

guards—counsel, confrontation, cross-examination, and

compulsory process for witnesses. A full preliminary

hearing of this sort is modeled after the procedure used in

many States to determine whether the evidence justifies

going to trial under an information or presenting the

case to a grand jury. See Coleman v. Alabama, 399 U. S..

1 (1970); Y. Kamisar, W. LaFave & J. Israel, Modern

Criminal Procedure 957-967, 996-1000 (4th ed. 1974).

The standard of proof required of the prosecution is

usually referred to as “probable cause,” but in some juris-

dictions it may approach a prima facie case of guilt.

A. L. I. Model Code of Pre-arraignment Procedure, Com-

mentary on Article 330, at 90-91 (Tent. Draft No. 5,

1972). When the hearing takes this form, adversary pro-

cedures are customarily employed. The importance of

the issue to both the State and the accused justifies the

presentation of witnesses and full exploration of their

testimony on cross-examination. This kind of hearing

also requires appointment of counsel for indigent defend-

ants. Coleman v. Alabama, supra. And, as the hearing

assumes increased importance and the procedures become

more complex, the likelihood that it can be held promptly

after arrest diminishes. See A. L. I. Model Code of Pre-

arraignment Procedure, supra, at 33-34.

These adversary safeguards are not essential for the

probable cause determination required by the Fourth

Amendment. The sole issue is whether there is probable

cause for detaining the arrested person pending further

proceedings. This issue can be determined reliably with-

out an adversary hearing. The standard is the same

as that for arrest.*‘ That standard—probable cause to

21 Because the standafds are identical, ordinarily there is no need

for further investigation before the probable cause determination can

be made.

“Presumably, whomever the police arrest they must arrest on ‘prob-

able cause.’ It is not the function of the police to arrest, as it were,

GERSTEIN v. PUGH 17

believe the suspect has committed a crime—traditionally

has been decided by a magistrate in a nonadversary pro-

ceeding on hearsay and written testimony, and the Court

has approved these informal modes of proof.

“Guilt in a criminal case must be proved beyond a

reasonable doubt and by evidence confined to that

which long experience in the common-law tradition,

to some extent embodied in the Constitution, has

crystallized into rules of evidence consistent with

that standard. These rules are historically grounded

rights of our system, developed to safeguard men

from dubious and unjust convictions, with resulting

forfeitures of life, liberty and property.

_ “In dealing with probable cause, however, as the

very name implies, we deal with probabilities.

These are not technical; they are the factual and

practical considerations of everyday life on which

reasonable and prudent men, not legal technicians,

act. The standard of proof is accordingly correla-

tive, to what must be proved.” Brinegar v. United

States, 338 U.S. 160, 174-175 (1949).

Cf. McCray v. Illinois, 386 U.S. 300 (1967).

The use of an informal procedure is justified not only

by the lesser consequences of a probable cause deter-

mination but also by the nature of the determination

itself. It does not require the fine resolution of conflict-

ing evidence that a reasonable-doubt or even a prepond-

erance standard demands, and credibility determinations

are seldom crucial in deciding whether the evidence sup-

ports a reasonable belief in guilt. See F. Miller, Prosecu-

at large and to use an interrogating process at police headquarters

in order to determine whom they should charge before a committing

magistrate on ‘probable cause.’” Mallory v. United States, 354

U. S. 449, 456 (1957).

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18 GERSTEIN v. PUGH

tion: The Decision to Charge a Suspect with a Crime 64-

109 (1969). This is not to say that confrontation and

cross-examination might not enhance the reliability of

probable cause determinations in some cases. In most

cases, however, their value would be too slight to justify

holding, as a matter of constitutional principle, that these

formalities and safeguards designed for trial must also be

employed in making the Fourth Amendment determina-

tion of probable cause.”*

Because of its limited function and its nonadversary

character, the probable cause determination is not a

“critical stage” in the prosecution that would require

221In Morrissey v. Brewer, 408 U. 8. 471 (1972), and Gagnon v.

Scarpelli, 411 U. 8. 778 (1973), we held that a parolee or proba-

tioner arrested prior to revocation is entitled to an informal pre-

liminary hearing at the place of arrest, with some provision for live

testimony. 408 U. S., at 487; 411 U.S., at 786. That preliminary

hearing, more than the probable cause determination required. by

the Fourth Amendment, serves the purpose of gathering and pre-

serving live testimony, since the final revocation hearing frequently

is held at some distance from the place where the violation occurred.

408 U.S., at 485; 411 U. S., at 782-783 n. 5. Moreover, revocation

proceedings may offer less protection from initial error than the

more formal criminal process, where violations are defined by statute

and the prosecutor has a professional duty not to charge a suspect

with crime unless he is satisfied of probable cause. See ABA Code

of Professional Responsibility, DR 7-103 (A) (a prosecutor “shall

not institute or cause to be instituted criminal charges when he }-nows

or it is obvious that the charges are not supported by probable

cause”); ABA Standards Relating to the Administration of Crim-

inal Justice, The Prosecut: »n Function, §§ 1.1, 3.4, 3.9 (1974) ; Amer-

ican College of Trial Lawyers, Code of Trial Conduct, rule 4 (c)

(1972).

23 Criminal justice is already overburdened by the volume of cases

and the complexities of our svstem. The processing of misdemeanors,

in particular, and the early stages of prosecution generally are marked

by delays that can seriously affect the quality of justice. A consti-

tutional doctrine requiring adversary hearings for all persons detained

pending trial could exacerbate the problem of pretrial delay.

GERSTEIN v. PUGH. : 19

appointed counsel. The Court has identified as “critical

stages” those pretrial procedures that would impair de-

fense on the merits if the accused is required to proceed

without counsel. Coleman v. Alabama, 399 U. S. 1

(1970); United States v. Wade, 388 U. S. 218, 226-227

(1967). In Coleman vy. Alabama, where the Court held

that a preliminary hearing was a critical stage of an Ala- |

bama prosecution, the majority and concurring opinions

identified two critical factors that distinguish the Ala-

bama preliminary hearing from the probable cause deter-

mination required’ by the Fourth Amendment. First,

under Alabama law the function of the preliminary hear-

ing was to determine whether the evidence justified charg-

ing the suspect with an offense. A finding of no probable

cause could mean that he would not be tried at all. The

Fourth Amendment probable cause determination is ad-

dressed only to pretrial custody. To be sure, pretrial

custody may affect to some extent the defendant’s ability

to assist in preparation of his defense, but this does not

present the high probability of substantial harm identi-

fied as controlling in Wade and Coleman. Second, Ala-

bama allowed the suspect to confront and cross-examine

prosecution witnesses at the preliminary hearing. The

Court noted that the suspect’s defense on the merits could

be compromised if he had no legal assistance for exploring

or preserving the witnesses’ testimony. This considera-

tion does not apply when the prosecution is not required

to produce witnesses for cross-examination.

Although we conclude that the Constitution does not

require an adversary determination of probable cause, we

recognize that state systems of criminal procedure vary

widely. There is no single preferred pretrial procedure,

and the nature of the probable cause determination

usually will be shaped to accord with a State’s pretrial

procedure viewed as a whole. Whi!2 we limit our hold-

eee LOIN EELS OLE ELLIE LELEOLIE FT Oe

Ul

20 GERSTEIN v. PUGH

| ing to the precise requirement of the Fourth Amend-

“ ment, we recognize the desirability of flexibility and ex-

j perimentation by the States. It may be found desirable,

: for example, to make the probable cause determination at

| the suspect’s first appearance before a judicial officer,”

4 see McNabb v. United States, 318 U. S. 332, 342-344

yp be (1943), or the determination may be incorporated into

‘the procedure for setting bail or fixing other conditions

of pretrial release. In some States, existing procedures

may satisfy the requirement of the Fourth Amendment.

Others may require only minor adjustment, such as accel-

eration of existing ‘preliminary hearings. Current

proposals for criminal procedure reform suggest other

ways of testing probable cause for detention.””» Whatever

ie Set AS

24 Several States already authorize a determination of probable

ie cause at this stage or immediately thereafter. See Colo, Rev. Stat.

§ 39-2-3 (1965 Supp.) ; Hawaii Rev. Stat. § 708-9 (5) (1968); Vt.

Rules Crim. Proc. 3 (b), 5 (c) (1974). This Court has interpreted

the Federal Rules of Criminal Procedure to require a determination

; of probable cause at the first appearance Jaben v. United States,

381 U. S. 214, 218 (1905) ; Mallory v. United States, 354 U. 8. 449,

454 (1957). ;

25 Under the Uniform Rules of Criminal Procedure (Proposed

Final Draft 1974), a person arrested without a warrant is entitled, ’

“without unnecessary delay,” to a first appearance before a megis-

trate and a determination that grounds exist for issuance of an arrest

warrant. The determination may be made on affidavits or testimony,

in the presence of the accused. Rule 311. Persons who remain in

custody for inability to qualify for pretrial release are offered another

opportunity for a probable cause determination at the detention hear-

ing, held no more than five days after arrest, This is an adversary

hearing, and the parties may summon witnesses, but reliable hearsay

evidence may be considered. Rule 344.

The A. L. I.’ Médel Code of Pre-arraignment Procedure (Tent.

Draft No. 5, 1972, and Tent. Draft No. 5A, 1973) also provides a

i first appearance, at which a warrantless arrest must be supported

by a reasonably detailed written statement of facts. §310. The

magistrate may make a determination of probable cause to hold the

Aietie si shi thebes x tees ei:

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/

GERSTEIN v. PUGH 21

procedure a State may adopt, it must provide a fair and

reliable determination of probable cause as a condition

for any significant pretrial restraint on liberty,” and this

determination must be made by a judicial officer either

before or promptly after arrest.”

accused, but he is not required to do’so and the accused may request

an attorney for an “adjourned session” of the first appearance to be

held within 2 “court days.” At that session, the magistrate makes

a determination of probable cause upon a combination of written

and live testimony:

“The arrested person may present written and testimonial evidence

and arguments for his discharge and the state may present addi-

tional written and testimonial evidence and arguments that there is

reasonable cause to believe that he has committed the crime of

which he is accused. The state’s submission may be made by means

of affidavits, and no witnesses shall be required .o appear unless the

court, in the light of the evidence and argumenis submitted by the

parties, determines that there is a basis for believing that the appear-

ance of one or more witnesses for whom the arrested person seeks

subpoenas might lead to a finding that there is no reasonable cause.”

§ 310.2 (2) (Tent. Draft No. 5A, 1973).

26 Because the probable cause determination is not a constitutional

prerequisite to the charging decision, it is required only for those

suspects who suffer restraints on liberty other than the condition

that they appear for trial. There are many kinds of pretrial release

and many degrees of conditional liberty. See i8 U. S. C. § 3146;

ABA Standards Relating to the Administration of Criminal Justice,

Pretrial Release § 5.2 (1974); Uniform Rules of Criminal Procedure,

Rule: 341 (Proposed Final Draft 1974). We cannot define spe-

cifically those that would require a prior probable cause determina-

tion, but the key factor is significant restraint on liberty.

*7—In his concurring opinion, Mr. Justice Stewart ob-

jects to the Court’s choice of the Fourth Amendment as the

rationale for decision and suggests! that the Court offers less pro-

cedural protection to a person in jail than it requires in certain civil

cases. Here we deal with the complex procedures of a criminal case

and a threshold right guaranteed by the Fourth Amendment. The

historical basis of the probable cause requirement is quite different

from the relatively recent application of variable procedural due

process in debtor-creditor disputes and termination of government-

22 GERSTEIN v. PUGH

; IV

We agree with the Court of Appeals that the Fourth

Amendment requires a timely judicial determination of

probable cause as a prerequisite to detention, and we

accordingly affirm that much of the judgment. As we

do not agree that the Fourth Amendment requires the

- adversary hearing outlined in the District Court’s decree,

we reverse in part and remand to the Court of Appeals

for further proceedings consistent with this opinion.

created benefits. The Fourth Amendment was tailored explicitly for

the criminal justice system, and its balance between individual and

public interests always has been thought to define the “process that

is due” for seizures of person or property in criminal cases, includ-

ing the detention of suspects pending trial. Part II-A, ante. More-

over, the Fourth Amendment probable cause determination is in fact

only the first stage of an elaborate system, unique in jurisprudence,

designed to safeguard the righis of those accused of criminal conduct.

The relatively simple civil procedures (e. g., prior interview with

school principal’ before suspension) presented in the cases cited in

the concurring opinion are inapposite and irrelevant in the wholly

different context of the criminal justice system,

It would not be practicable to follow the further suggestion implicit

in Mr. Justice Stewart's concurring opinion that we leave for

another day determination of the procedural safeguards that are

required in making a probable cause determination under the Fourth

Amendment. The judgment under review both declares the right

not to be detained without a probable cause determination and

affirms the District Court’s order prescribing an adversary hearing

for the implementation of that right. The circumstances.of the

case thus require a decision on both issues. :

SUPREME COURT OF THE UNITED STATES

No. 73-477 é

Richard E. Gerstein, State At-

torney for Eleventh Judicial |On Writ of Certiorari

Circuit of Florida, to the United States

Petitioner, Court of Appeals for

v the Fifth Circuit.

Robert Pugh et al.

[February 18, 1975]

Mr. Justice Stewart, with whom Mr. Justice Douc-

Las, Mr. Justice BRENNAN, AND Mr. Justice MARSHALL

join, concurring.

I concur in Parts I and II of the Court’s opinion, since

the Constitution clearly requires at least a timely judicial

determination of probable cause as a prerequisite to pre-

trial detention. Because Florida does not provide all

defendants in custody pending trial with a fair and reli-

able determination of probable cause for their detention,

the respondents and the members of the class they repre-

sent are entitled to declaratory and injunctive relief.

Having determined that Florida’s current pretrial de-

tention procedures are constitutionally inadequate, I think

it is unnecessary to go further by way of dicta. In par-

ticular, I would not, in the abstract, attempt to specify

those procedural protections that constitutionally need

not be accorded incarcerated suspects awaiting trial.

Specifically, | see no need in this case for the Court to

say that the Constitution extends less procedural protec-

tion to an imprisoned human being than is required to

test the propriety of garnisheeing a commercial bank ac-

count, North Georgia ‘Finishing, Inc. v. Di-Chem, Inc.,

—— U.S. —; the custody of a refrigerator, Mitchell v.

‘

—E————————“—SNTTrC—™S™~S~‘“ON

—_—

Re eR ENS

2 GERSTEIN v. PUGH

W. T. Grant Co., 416 U. S. 600; the temporary suspension

of a publie school student, Goss v. Lopez, —— U. S. —;

or the suspension of a driver's license, Bell v. Burson, 402

U. S. 535. Although it. may be true that the Fourth

Amendment's “balance between individual and public

interests always has been thought to define the ‘process

that is due’ for seizures of person or property in criminal

cases,” ante, pp. 21-22, n. 27, this case does not involve

an initial arrest, but rather the continuing incarceration

of a presumptively innocent person. Accordingly, I can-

not join the Court's effort to foreclose any claim that the

traditional requirements of constitutional due process are

applicable in the context of pretrial detention.

It is the prerogative of each State in the first instance

to develop pretrial procedures that provide defendants in

pretrial custody with the fair and reliable determination

of probable cause for detention required by the Consti-

tution. Cf. Morrissey v. Brewer, 408 U.S. 471,488. The

constitutionality of any particular method for determin-

ing probable cause can be properly decided only by eval-

uating a State’s pretrial procedures as a whole, not by

isolating a particular part of its total system. As the

Court recognizes, great diversity exists among the proce-

dures employed by the States in this aspect of their crimi-

nal justice systems. Ante, at slip op. 19-20.

There will be adequate opportunity to evaluate in an

appropriate future case the constitutionality of any new

procedures that may be adopted by Florida in response

to the Court’s judgment today holding that Florida’s

present procedures are constitutionally inadequate.