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Gerstein v. Pugh


The defendants were arrested and charged with felonies based on a prosecutor’s charging document. At that time, the state only required indictments for capital offenses. State case law held that the filing of an information foreclosed the defendant’s right to have a judge determine whether probable cause existed for the arrest.


Whether a person arrested and held for trial under an information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty?


Yes. The Fourth Amendment demands a judicial review of an arrest before an “extended restraint of liberty” is imposed.


The Court noted that in many instances, the government is permitted to act without the review of a judicial authority. The Court stated that “a policeman’s on-the-scene assessment of probable cause provides legal justification 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, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate.” At some point, the government’s need to secure the defendant subsides and “the suspect’s need for a neutral determination of probable cause increases significantly.” Based on these factors the Court held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” The fact that the prosecutor found substantial evidence to warrant a prosecution does not afford the citizen the protections contemplated in the Fourth Amendment.


420 U.S. 103, 95 S. Ct. 854 (1975)

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