U.S. Supreme Court Gerstein v. Pugh, 420
U.S. 103 (1975) Gerstein v. Pugh No. 73-477 Argued March 25, 1974 Reargued October 21,
1974 Decided February 18,
1975 420
U.S. 103 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus 1. The Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint of liberty
following 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. 420 U. S.
111 -119.

															(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. 420 U. S.
116 -118.

															(b) The Constitution does not require, however, judicial
oversight 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. Pp. 420 U.S. 118 -119.

															2. The probable cause determination, as an initial step in the
criminal justice process, may be made by a judicial officer without
an adversary hearing. Pp. 420 U. S.
119 -125.

															(a) The sole issue is whether there is probable cause for
detaining the arrested person pending further proceedings, and this
issue can be determined reliably by the use of informal procedures.
Pp. 420 U. S.
120 -122.

															(b) Because of its limited function and its nonadversary
character, the probable cause determination is not a "critical
stage" in the prosecution that would require appointed counsel. Pp. 420 U. S.
122 -123.

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

															POWELL, 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 BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ.,
joined. STEWART, J., filed a concurring opinion, in which DOUGLAS,
BRENNAN, and MARSHALL, JJ., joined, post, p. 420 U. S.
126 . Page 420 U. S. 105 MR. JUSTICE POWELL delivered the opinion of the Court.

															The issue in this case is whether a person arrested and held for
trial under a prosecutor's information is constitutionally entitled
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, Fla. Each was charged with several offenses under a
prosecutor's information. [ Footnote
1 ] Pugh was denied bail because one of the charges against him
carried a potential life sentence, and Henderson remained in
custody because he was unable to post a $4,500 bond.

															In Florida, indictments are required only for prosecution of
capital offenses. Prosecutors may charge all other crimes by
information, without a prior preliminary hearing 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.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 (before
amendment in 1972). Page 420 U. S. 106 But the Florida courts had held that the filing of an
information foreclosed the suspect's right to a preliminary
hearing. See Stat ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla.1972). [ Footnote 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 information. See Sullivan v. State ex rel.
McCrory, 49 So. 2d
794 , 797 (Fla.1951). The only possible methods for obtaining a
judicial determination of probable cause were a special statute
allowing a preliminary hearing after 30 days, Fla.Stat.Ann. §
907.045 (1973), [ Footnote 3 ]
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). [ Footnote 4 ] As a result, a person charged 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 Page 420 U. S. 107 Court, [ Footnote 5 ] claiming
a constitutional right to a judicial hearing on the issue of
probable cause and requesting declaratory and injunctive relief.
[ Footnote 6 ] Respondents Turner
and Faul, also in custody under informations, subsequently
intervened. [ Footnote 7 ]
Petitioner Gerstein, the State Attorney for Dade County, was one of
several defendants. [ Footnote
8 ]

															After an initial delay while the Florida Legislature considered
a bill that would have afforded preliminary hearings 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.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
question of probable cause. The District Court ordered the Dade
County defendants to give the named plaintiffs an immediate
preliminary hearing to determine probable Page 420 U. S. 108 cause for further detention. [ Footnote 9 ] It also ordered them to submit a plan
providing preliminary hearings in all cases instituted by
information.

															The defendants submitted a plan prepared 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 (SD Fla.1972). 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 hearing 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, 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 information, but only
by indictment returned within 30 days. Page 420 U. S. 109 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 voluntarily adopted a similar
procedure of its own. Upon learning of this development, the Court
of Appeals remanded the case for specific findings on the
constitutionality 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
state-wide, 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 magistrate does not make a determination
of probable cause. The rule amendments also changed the procedure
for preliminary hearings, restricting them to felony 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 Criminal
Procedure, 289 So. 2d 3 (Fla.1974).

															In a supplemental opinion, the District Court held that the
amended rules had not answered the basic constitutional objection,
since a defendant charged by information still could be detained
pending trial without a judicial determination of probable cause. 355 F.
Supp. 1286 (SD Fla.1973). Reaffirming its original ruling, the
District Court declared that the continuation of this practice was
unconstitutional. [ Footnote
10 ] The Court of Appeals Page 420 U. S. 110 affirmed, 483 F.2d 778 (1973), modifying the District Court's
decree in minor particulars and suggesting that the form of
preliminary hearing provided by the amended Florida rules would be
acceptable as long as it was provided to all defendants in custody
pending trial. Id. at 788-789.

															State Attorney Gerstein petitioned for review, and we granted
certiorari because of the importance of the issue. [ Footnote 11 ] Page 420 U. S. 111 414 U.S. 1062 (1973). We affirm in part and reverse in part. 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. A Both the standards and procedures for arrest and detention have
been derived from the Fourth Amendment and its common law
antecedents. See Cupp v. Murphy, 412 U.
S. 291 , 412 U. S.
294 -295 (1973); Ex parte
Bollman , 4 Cranch 75 (1807); Ex parte
Burford , 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 committing an offense." Page 420 U. S. 112 Beck v. Ohio, 379 U. S. 89 , 379 U. S. 91 (1964). See also Henry v. United States, 361 U. S.
98 (1959); Brinegar v. United States, 338 U. S. 160 , 338 U. S.
175 -176 (1949). This standard, like those for searches
and seizures, represents a necessary accommodation between the
individual's right to liberty and the State's duty to control
crime.

															"These long-prevailing standards seek to safeguard citizens from
rash and unreasonable interferences 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 probable 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 enforcement. To allow less would be to
leave law-abiding citizens at the mercy of the officers' whim or
caprice." Id. at 338 U. S.
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 whenever possible. The classic statement of this
principle appears in Johnson v. United States, 333 U. S. 10 , 333 U. S. 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 protection Page 420 U. S. 113 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 , 392 U. S. 222 (1968). [ Footnote 12 ]

															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 all
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 379 U. S. 96 ; Wong Sun v. United States, 371 U.
S. 471 , 371 U. S.
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); Trupiano v. United States, 334 U.
S. 699 , 334 U. S. 705 (1948). [ Footnote 13 ]

															Under this practical compromise, a policeman's on-the-scene
assessment of probable cause provides legal justification Page 420 U. S. 114 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. There no longer is any danger that the suspect will
escape or commit further crimes while the police submit their
evidence to a magistrate. And, while the State's reasons for taking
summary action subside, the suspect's need for a neutral
determination of probable cause increases significantly. The
consequences of prolonged detention may be more serious than the
interference occasioned by arrest. Pretrial confinement 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
significant restraint of 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 unfounded
interference with liberty. Accordingly, we hold that the Fourth
Amendment requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following arrest.

															This result has historical support in the common law that has
guided interpretation of the Fourth Amendment. See Carroll v.
United States, 267 U. S. 132 , 267 U. S. 149 (1925). At common law, it was customary, if not obligatory, for an
arrested person to be brought before a justice of the peace shortly
after arrest. 2 M. Hale, Pleas of the Crown 77, 81, 95, 121 (1736);
2 W. Hawkins, Pleas of the Crown 116-117 (4th ed. 1762). See
also Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S.
498 -499 (1885). [ Footnote 14 ] The justice of the peace Page 420 U. S. 115 would "examine" the prisoner and the witnesses to determine
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; W. Hawkins, supra at 116-119; 1 J. Stephen, History of the Criminal Law of England
233 (1883). [ Footnote 15 ]
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, 4 Cranch at 8 U. S. 97 -101.
This practice furnished the model for criminal procedure in America
immediately following the adoption of the Page 420 U. S. 116 Fourth Amendment, see Ex parte Bollman, supra; [ Footnote 16 ] Ex parte
Burford , 3 Cranch 448 (1806); United
States v. Hamilton , 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. at 358 U. S.
317 -320 (DOUGLAS, J., dissenting). [ Footnote 17 ] B Under the Florida procedures challenged here, 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. [ Footnote 18 ] Petitioner defends this practice on the Page 420 U. S. 117 ground that the prosecutor's decision to file an information is
itself a determination of probable cause that furnishes sufficient
reason to detain a defendant pending trial. Although a
conscientious decision that the evidence warrants prosecution
affords a measure of protection against unfounded detention, we do
not think prosecutorial judgment, standing alone, meets the
requirements 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 , 273 U. S. 5 (1927), the Court held that an arrest warrant issued solely upon a
United States Attorney's information was invalid because the
accompanying affidavits were defective. 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 judgment that the arrest was illegal under the Fourth
Amendment. [ Footnote 19 ]
More recently, in Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S.
449 -453 (1971), the Court held that a prosecutor's
responsibility to law enforcement is inconsistent with the
constitutional role of a neutral and detached magistrate. We
reaffirmed that principle in Shadwick Page 420 U. S. 118 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 , 407 U. S. 317 (1972). [ Footnote 20 ] The
reason for this separation of functions was expressed by Mr.
Justice Frankfurter in a similar context:

															"A democratic society, in which respect for the dignity 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 cherished
liberties. Experience has therefore counseled that safeguards must
be provided against the dangers 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 , 318 U. S. 343 (1943).

															In holding that the prosecutor's assessment of probable Page 420 U. S. 119 cause is not sufficient alone to justify restraint of liberty
pending trial, we do not imply that the accused is entitled to
judicial oversight or review of the decision to prosecute. Instead,
we adhere to the Court's prior holding that a judicial hearing is
not prerequisite to prosecution by information. Beck v.
Washington, 369 U. S. 541 , 369 U. S. 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, 143 U.S.App.D.C. 116, 442 F.2d
838 (1971), and Cooley v. Stone, 134 U.S.App.D.C. 317, 414
F.2d 1213 (1969). III 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 safeguards -- 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 jurisdictions it may approach a prima facie case of guilt. Page 420 U. S. 120 ALI, Model Code of Pre-arraignment Procedure, Commentary on Art.
330, pp. 91 (Tent.Draft No. 5, 1972). When the hearing takes this
form, adversary procedures 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 defendants. 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 ALI, Model Code of Prearraignment Procedure, supra, at
334.

															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 without an adversary hearing. The standard is the same as
that for arrest. [ Footnote
21 ] That standard -- probable cause to believe the suspect has
committed a crime -- traditionally has been decided by a magistrate
in a nonadversary proceeding 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, Page 420 U. S. 121 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 correlative to what must be
proved." Brinegar v. United States, 338 U.S. at 338 U. S.
174 -175. 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 determination, but also by
the nature of the determination itself. It does not require the
fine resolution of conflicting evidence that a reasonable doubt or
even a preponderance standard demands, and credibility
determinations are seldom crucial in deciding whether the evidence
supports a reasonable belief in guilt. See F. Miller,
Prosecution: The Decision to Charge a Suspect with a Crime 64-109
(1969). [ Footnote 22 ] This
is not to say that confrontation and Page 420 U. S. 122 cross-examination might not enhance the reliability of probable
cause determinations in some case. 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 determination of probable cause. [ Footnote 23 ]

															Because of its limited function and its nonadversary character,
the probable cause determination is not a "critical stage" in the
prosecution that would require appointed counsel. The Court has
identified as "critical stages" those pretrial procedures that
would impair defense 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 , 388 U. S.
226 -227 (1967). In Coleman v. Alabama, where
the Court held that a preliminary hearing was a critical stage of
an Alabama prosecution, the majority and concurring opinions
identified two critical factors that distinguish the Alabama
preliminary hearing from the probable cause determination required
by the Fourth Amendment. First, Page 420 U. S. 123 under Alabama law, the function of the preliminary hearing was
to determine whether the evidence justified charging 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 addressed 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 identified as controlling
in Wade and Coleman. Second, Alabama 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
consideration 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. While we limit our holding to
the precise requirement of the Fourth Amendment, we recognize the
desirability of flexibility and experimentation 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, [ Footnote 24 ] Page 420 U. S. 124 see McNabb v. United States, 318 U.S. at 318 U. S.
342 -344, 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 acceleration of existing preliminary
hearings. Current proposals for criminal procedure reform suggest
other ways of testing probable cause for detention. [ Footnote 25 ] Whatever Page 420 U. S. 125 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, [ Footnote 26 ] and this determination must be made by a
judicial officer either before or promptly after arrest. [ Footnote 27 ] Page 420 U. S. 126 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. It is so ordered. [ Footnote 1 ]

															Respondent Pugh was arrested on March 3, 1971. On March 16, an
information was filed charging him with robbery, carrying a
concealed 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.

															[ Footnote 2 ]

															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 infra at 420 U. S. 117 n.19.

															[ Footnote 3 ]

															This statute may have been construed to make the hearing
permissive, instead of mandatory. See Evans v. State, 197
So. 2d 323 (Fla.App. 1967); Fla.Op.Atty.Gen. 067-29 (1967). But
cf. Karz v. Overton, 249 So. 2d 763 (Fla.App. 1971). It may
also have been superseded by the subsequent amendments to the Rules
of Criminal Procedure. In re Florida Rules of Criminal
Procedure, 272 So. 2d 65 (1972).

															[ Footnote 4 ]

															The Florida rules do not suggest that the issue of probable
cause can be raised at arraignment, Fla.Rule Crim.Proc. 3.160, but
counsel for petitioner represented at oral argument that
arraignment affords the suspect an opportunity to "attack the
sufficiency of the evidence to hold him." Tr. of Oral Arg. 17 (Mar.
25, 1974). The Court of Appeals assumed, without deciding, that
this was true. 483 F.2d 778, 781 n. 8 (CA5 1973).

															[ Footnote 5 ]

															The complaint was framed under 42 U.S.C. § 1983, and
jurisdiction in the District Court was based on 28 U.S.C. §
1343(3).

															[ Footnote 6 ]

															Respondents did not ask for release from state custody even as
an alternative 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. 1107 , 1115-1116, (SD Fla.1971). 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. McDonell, 418 U.
S. 539 , 418 U. S.
554 -555 (1974).

															[ Footnote 7 ]

															Turner 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.

															[ Footnote 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.

															[ Footnote 9 ]

															The District Court correctly held that respondents' claim for
relief was not barred by the equitable restrictions on federal
intervention 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 hearing, 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 the trial on the merits. See
Conover v. Montemuro, 477 F.2d 1073, 1082 (CA3 1972); cf.
Perez v. Ledesma, 401 U. S. 82 (1971); Stefanelli v. Minard, 342 U.
S. 117 (1951).

															[ Footnote 10 ]

															Although this ruling held a state-wide "legislative rule"
unconstitutional, it was not outside the jurisdiction of a single
judge by virtue of 28 U.S.C. § 2281. The original complaint did not
ask for an injunction against enforcement of any state statute or
legislative rule of state-wide application, since the practice of
denying preliminary hearings to persons charged by information was
then embodied 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 state-wide 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 , 372 U. S.
152 -155 (1963); Flemming v. Nestor, 363 U. S. 603 , 363 U. S.
606 -608 (1960).

															[ Footnote 11 ]

															At oral argument, counsel informed us that the named respondents
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.
Iowa, 419 U. S. 393 (1975). Pretrial detention is, by nature, temporary, and it is most
unlikely that any given individual could have his constitutional
claim decided on appeal before he is either released or convicted.
The individual could nonetheless suffer repeated deprivations, 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 419 U. S. 402 n. 11; cf. Rivera v. Freeman, 469 F.2d 1159, 1162-1163
(CA9 1972). The length of pretrial 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.

															[ Footnote 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 magistrate that the collected
evidence is sufficient to justify invasion of a citizen's private
premises or conversation." Id. at 407 U. S.
316 .

															[ Footnote 13 ]

															Another aspect of Trupiano was overruled in United
States v. 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
controversy, and that remains unsettled, is whether and under what
circumstances an officer may enter a suspect's home to make a
warrantless arrest. See Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S.
474 -481 (1971); id. at 403 U. S.
510 -512, and n. 1 (WHITE, J., dissenting); Jones v.
United States, 357 U. S. 493 , 357 U. S.
499 -500 (1958).

															[ Footnote 14 ]

															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
dismiss 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."

															1 M. Hale, Pleas of the Crown 59-590 (1736).

															[ Footnote 15 ]

															The examination of the prisoner was inquisitorial, and the
witnesses were questioned outside the prisoner's presence. Although
this method of proceeding was considered quite harsh, 1 J. Stephen, supra, 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. Id. at 233.

															[ Footnote 16 ]

															In 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 Mr.
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.

															[ Footnote 17 ] See 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 "reasonable"
search under the Fourth Amendment. The victim was required 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, Two Studies in Constitutional Interpretation 24-25, 39 40
(1969); see Boyd v. United States, 116 U.
S. 616 , 116 U. S.
626 -629 (1886).

															[ Footnote 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.

															[ Footnote 19 ]

															By contrast, the Court has held that an indictment, "fair upon
its face," and returned by a "properly constituted grand jury,"
conclusively determines the existence of probable cause and
requires issuance of an arrest warrant without further inquiry. Ex parte United States, 287 U. S. 241 , 287 U. S. 250 (1932). See also Giordenello v. United States, 357 U. S. 480 , 357 U. S. 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 , 414 U. S.
342 -346 (1974).

															[ Footnote 20 ]

															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, § 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 Philippines is not conclusive
for interpretation of a cognate provision in the Federal
Constitution, Green v. United States, 355 U.
S. 184 , 355 U. S.
194 -198 (1957). Even if it were, the result reached in Ocampo is incompatible with the later holdings of Albrecht, Coolidge, and Shadwick. [ Footnote 21 ]

															Because the standards 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
'probable cause.' It is not the function of the police to arrest,
as it were, 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 , 354 U. S. 456 (1957).

															[ Footnote 22 ]

															In Morrissey v. Brewer, 408 U.
S. 471 (1972), and Gagnon v. Scarpelli, 411 U. S. 778 (1973), we held that a parolee or probationer arrested prior to
revocation is entitled to an informal preliminary hearing at the
place of arrest, with some provision for live testimony. 408 U.S.
at 408 U. S. 487 ;
411 U.S. at 411 U. S. 786 .
That preliminary hearing, more than the probable cause
determination required by the Fourth Amendment, serves the purpose
of gathering and preserving live testimony, since the final
revocation hearing frequently is held at some distance from the
place where the violation occurred. 408 U.S. at 408 U. S. 485 ;
411 U.S. at 411 U. S.
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) (Final Draft 1969)
(a prosecutor "shall not institute or cause to be instituted
criminal charges when he knows or it is obvious that the charges
are not supported by probable cause"); American Bar Association
Project on Standards for Criminal Justice, The Prosecution Function
§§ 1.1, 3.4, 3.9 (1974); American College of Trial Lawyers, Code of
Trial Conduct, Rule 4(c) (1963).

															[ Footnote 23 ]

															Criminal justice is already overburdened by the volume of cases
and the complexities of our system. 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 constitutional doctrine requiring adversary hearings for all
persons detained pending trial could exacerbate the problem of
pretrial delay.

															[ Footnote 24 ]

															Several States already authorize a determination of probable
cause at this stage or immediately thereafter. See, e.g., Hawaii Rev.Stat. §§ 708-9(5), 7107 (198); Vt.Rules Crim.Proc. 3(b),
5(c). 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 , 381 U. S. 218 (1965); Mallory v. United States, 354 U.S. at 354 U. S.
454 .

															[ Footnote 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
magistrate 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 hearing, 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 ALI Model Code of Pre-arraignment Procedure (Tent.Draft No.
5, 1972, and Tent.Draft No. 5A, 1973) also provides a first
appearance, at which a warrantless arrest must be supported by a
reasonably detailed written statement of facts. § 310.1. The
magistrate may make a determination of probable cause to hold the
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 two "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
additional 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 to appear
unless the court, in the light of the evidence and arguments
submitted by the parties, determines that there is a basis for
believing that the appearance 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).

															[ Footnote 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 18 U.S.C. § 3146; American Bar Association Project on
Standards for Criminal Justice, Pretrial Release § 5.2 (1974);
Uniform Rules of Criminal Procedure, Rule 341 (Proposed Final Draft
1974). We cannot define specifically those that would require a
prior probable cause determination, but the key factor is
significant restraint on liberty.

															[ Footnote 27 ]

															In his concurring opinion, MR. JUSTICE STEWART objects to the
Court's choice of the Fourth Amendment as the rationale for
decision and suggests that the Court offers less procedural
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-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, including the detention of suspects pending trial. 420 U. S. supra. Moreover, the Fourth Amendment probable cause
determination is, in fact, only the first stage of an elaborate
system, unique in jurisprudence, designed to safeguard the rights
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.

															MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, 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 pretrial
detention. Because Florida does not provide all defendants in
custody pending trial with a fair and reliable determination of
probable cause for their detention, the respondents and the members
of the class they represent are entitled to declaratory and
injunctive relief.

															Having determined that Florida's current pretrial detention
procedures are constitutionally inadequate, I think it is
unnecessary to go further by way of dicta. In particular, I would
not, in the abstract, attempt to specify those procedural
protections that constitutionally need not be accorded incarcerated
suspects awaiting trial. Page 420 U. S. 127 Specifically, I see no need in this case for the Court to say
that the Constitution extends less procedural protection to an
imprisoned human being than s required to test the propriety of
garnishing a commercial bank account, North Georgia Finishing,
Inc. v. Di-Chem, Inc., 419 U. S. 601 ; the
custody of a refrigerator, Mitchell v. W. T. Grant Co., 416 U. S. 600 ; the
temporary suspension of a public school student, Goss v.
Lopez, 419 U. S. 565 ; 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 at 420 U. S. 125 n. 27, this case does not involve an initial arrest, but rather the
continuing incarceration of a presumptively innocent person.
Accordingly, I cannot 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 Constitution. Cf. Morrissey v.
Brewer, 408 U. S. 471 , 408 U. S. 488 .
The constitutionality of any particular method for determining
probable cause can be properly decided only by evaluating 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 procedures employed by the States in this aspect
of their criminal justice system. Ante at 420 U. S.
123 -124.

															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.