Otel H. v. Barton

NOYES, J. ORDER The court has been informed that a copy of an Arizona Traffic Ticket and Complaint that the court had intended to attach to the court’s opinion filed in this matter on January 30, 2003, was not included with the copy of the opinion forwarded to West Publishing Company on that date. This opinion was published at 204 Ariz. 212, 62 P.3d 138. On the court’s own motion. IT IS ORDERED directing the clerk of this court to make a copy of the court’s original opinion from the court’s file and attach to it a copy of the missing exhibit. The court requests that the opinion be republished as supplemented, and that the publishers’ indexing and research systems be configured such that members of the public who researched the status of the court’s opinion originally published at 204 Ariz. 212, 62 P.3d 138, are referred to the new citation for the opinion. OPINION ¶ 1 A police officer issued Petitioner an Arizona Traffic Ticket and Complaint (the “citation”) for “minor consumption alcohol,” and released him on his promise to appear in court. The citation contained no description of facts or circumstances; it just contained the officer’s signature below printed language stating, “I hereby certify that I have reasonable grounds to believe and do believe that the person cited herein committed the offense described herein contrary to law.” The question is whether this certification by the officer, standing alone, supports a judicial finding of probable cause to believe that the accused committed the offense. The answer is “no.” ¶ 2 At Petitioner’s first court appearance, the State moved that he be taken into custody (“detained”) pending his adjudication hearing. Petitioner objected, on grounds that the State had provided nothing from which the court could find probable cause to believe that Petitioner had committed the offense, and, therefore, the court could not legally detain him pending adjudication. The State argued that the court could find probable cause from the face of the citation. ¶ 3 The court found probable cause from the face of the citation, for these stated reasons: Rule 23(d) of the Rules of Procedure for the Juvenile Court provides that if the charging document is an Arizona ticket and complaint form, which is what we have here, then the complaint shall also serve as an affidavit, so we have an affidavit here saying that the minor consumed alcohol. Based upon those facts the Court finds that there is probable cause to believe that the juvenile committed the acts alleged in the June 10th petition. After making some other findings that are required by Rule 23(D) and are not at issue in this petition for special action, the court ordered Petitioner detained pending his adjudication hearing, which was scheduled to occur in twenty-two days. ¶ 4 Petitioner filed a petition for special action, asking this court to determine whether the face of this Arizona Traffic Ticket and Complaint supports a judicial finding of probable cause to believe that the accused committed the named offense. Because Petitioner’s adjudication hearing was on July 30, 2002, this pre-adjudication detention issue is moot as to him, but we nevertheless accept jurisdiction because the petition raises a constitutional question of statewide importance that is likely to recur, and to evade review, until it is resolved in a published opinion. ¶ 5 As relevant here, Rule 23(D) of the Arizona Rules of Procedure for the Juvenile Court provides as follows: D. Detention Hearing. Probable cause may be based upon the allegations in a petition, complaint or referral filed by a law enforcement official, along with a properly executed affidavit or sworn testimony. If the charging document is an Arizona Ticket and Complaint form, the complaint shall also serve as an affidavit. The affidavit may serve as the oath before a magistrate for purposes of Rule 2.4, Ariz. 314 R.Crim. P----A juvenile shall be detained only if there is probable cause to believe that the juvenile committed the acts alleged in the referral, petition, or complaint____ ¶ 6 That Rule 23(D) requires a finding of “probable cause to believe that the juvenile committed the acts alleged” before the court can order pre-adjudication detention is consistent with well-settled constitutional law. For example, Bell v. Superior Court, 117 Ariz. 551, 554, 574 P.2d 39, 42 (App.1977), held that “judicial determination of probable cause to believe that an alleged juvenile delinquent has committed an offense is constitutionally required before a juvenile may be detained pending the adjudicatory hearing.” Probable cause requires “facts and circumstances, ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ ” Id. at 553-54, 574 P.2d at 41-42 (quoting Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)) (emphasis added). ¶ 7 In its response to the ^petition, the State agrees that a judicial finding of probable cause must be both independent and based on sworn evidence, and it acknowledges that Rule 23(D) “obviously was modeled after Bell with respect to the probable cause determination.” The State does not argue that the “shall also serve as an affidavit” language in Rule 23(D) is intended to lessen the probable cause requirement when the charging document is an Arizona Traffic Ticket and Complaint; the State asserts that this language simply satisfies the requirement that allegations in the complaint be made under penalty of perjury. It is not a “rubber stamp.” The juvenile court must still determine whether probable cause exists from the face of the complaint and any accompanying narrative report. We agree with the State’s interpretation of Rule 23(D). We therefore conclude that the juvenile court plainly erred in finding probable cause from the face of this citation. ¶ 8 Petitioner’s citation, a copy of which is appended to this opinion, contains nothing but an officer’s asserted belief that the accused committed the named offense. Because a judicial finding of probable cause cannot be based on no more than an officer’s asserted belief that the accused committed the offense, see Aguilar v. Texas, 378 U.S. 108, 112, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (“Mere affirmance of belief or suspicion is not enough.”), this citation was plainly insufficient to support a judicial finding of probable cause. ¶ 9 Although a citation may establish probable cause if it contains or is accompanied by sufficient sworn facts and circumstances for the court to make an independent finding of probable cause, the citation here was deficient in that regard, and no procedural rule can finesse that constitutional defect. “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.” Gerstein, 420 U.S. at 124-25, 95 S.Ct. 854. ¶ 10 Jurisdiction is accepted and relief is denied solely on the grounds of mootness. CONCURRING: SHELDON H. WEISBERG, Presiding Judge.