Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-26-2001

Stewart v. Abraham
Precedential or Non-Precedential:

Docket 00-2358




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Filed December 26, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2358

ROBERT STEWART, on behalf of himself and all others
similarly situated

v.

LYNNE ABRAHAM, District Attorney of Philadelphia
County, individually and in her official capacity; DISTRICT
ATTORNEY'S OFFICE OF PHILADELPHIA COUNTY

Appellants

Appeal from the United States District Court for
the Eastern District of Pennsylvania
Civil Action No. 00-cv-02425
District Judge: Hon. Harvey Bartle III

Argued: November 9, 2000

Before: ROTH, McKEE and STAPLETON, Circuit Jud ges

(Opinion Filed: December 26, 2001)

       RONALD EISENBERG, ESQ.
        (Argued)
       EMILY B. ZIMMERMAN, ESQ.
       FERN KLETTER, ESQ.
       District Attorney's Office
       1421 Arch Street
       Philadelphia, PA 19102
       Attorneys for Appellants
DAVID RUDOVSKY, ESQ. (Argued)
JULES EPSTEIN, ESQ.
Kairys, Rudovsky, Epstein,
 Messing & Rau
924 Cherry Street, Suite 500
Philadelphia, PA 19107

CHARLES CUNNINGHAM, ESQ.
BRADLEY S. BRIDGE, ESQ.
Defender Association of
 Philadelphia
70 North 17th Street
Philadelphia, PA 19103

SETH KREIMER,   ESQ.
3400 Chestnut   Street
Philadelphia,   PA 19104
Attorneys for   Appellees

D. MICHAEL FISHER, ESQ.
WILLIAM H. RYAN, JR., ESQ.
ROBERT A. GRACI, ESQ.
STUART SUSS, ESQ.
Office of Attorney General
 of Pennsylvania
Appeals and Legal Services Section
2490 Boulevard of the Generals
Norristown, PA 19403
Attorneys for Amicus-appellant
Attorney General of Pennsylvania

NANCY WINKELMAN, ESQ.
STEPHEN J. SHAPIRO, ESQ.
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Attorneys for Amicus-appellee
American Civil Liberties Union of
Pennsylvania

                            2
OPINION OF THE COURT

STAPLETON, Circuit Judge:

This civil rights action mounts a Fourth Amendment
challenge to a practice of the Philadelphia District
Attorney's Office which the parties have labeled"the
rearrest policy."

I.

Rule 5021 of the Pennsylvania Rules of Criminal
Procedure provides that a criminal proceeding may"be
instituted by . . . an arrest without a warrant" if there is
probable cause to believe that the subject has committed a
felony. Pa. R. Crim. P. 502. In the case of a warrantless
arrest, a complaint is filed and a "preliminary arraignment"
is held "without unnecessary delay." Pa. R. Crim. P. 518(a).
A reference in the commentary of the Rules to County of
Riverside v. McLaughlin, 

(1991), makes clear
that under ordinary circumstances the preliminary
arraignment must be held within 48 hours. See Pa. R.
Crim. P. 540(C). At the preliminary arraignment, a neutral
magistrate "makes a determination of probable cause." Pa.
R. Crim. P. 540(C), 42 Pa. Cons. Stat. S 540(C). If he
determines that probable cause does not exist, the subject
is discharged. 

is set and a date for a
preliminary hearing is fixed no "less than 3 nor more than
10 days after the preliminary arraignment." Pa. R. Crim. P.
540(E)(1). If the Commonwealth presents a "prima facie
case" at the preliminary hearing, the subject is held over for
trial. Pa. R. Crim. P. 543. If "a prima facie case of the
defendant's guilt is not established at the preliminary
hearing, and no . . . continuance" is granted, the charge is
dismissed and the subject is discharged. Pa. R. Crim. P.
_________________________________________________________________

1. On March 1, 2000, the Supreme Court of Pennsylvania signed an
order authorizing the reorganization and renumbering of the
Pennsylvania Rules of Criminal Procedure. This order became effective
on April 1, 2001. We use the current numbering system throughout this
opinion.

                               3
542(D). Under Rule 544(a), "[w]hen charges are dismissed
. . . at . . . a preliminary hearing, the attorney for the
Commonwealth may reinstitute the charges by approving,
in writing, the refiling of a complaint." Pa. R. Crim. P.
544(a).

Under the challenged rearrest policy, the District
Attorney, from time to time when she concludes she has
probable cause, reinitiates criminal charges that have been
dismissed at a preliminary hearing by rearresting the
subject and refiling a complaint pursuant to the authority
of Rules 518 and 544. The person arrested is then held to
await a new preliminary arraignment within 48 hours. Cash
or property posted on the initial arrest is applied against
the bail set at that arraignment.2 This reinitiation of a
criminal proceeding occurs without a judicial determination
that the District Attorney has probable cause to believe that
the subject has committed a felony. Because no prima facie
case has been presented at the preliminary hearing in such
cases and because there has been no judicial finding of
probable cause prior to the rearrest, rearrests pursuant to
the District Attorney's policy are here challenged as
unreasonable seizures under the Fourth Amendment. 3

Plaintiff/Appellee Robert Stewart brought this S 1983
action on behalf of himself and others similarly situated.
The District Court granted class certification and enjoined
the District Attorney from employing the rearrest policy.
The certified class was defined as follows:

       All persons who have been or will in the future be
       subjected to the practice and policy of the . . .
       [Philadelphia] District Attorney of re-arresting, without
_________________________________________________________________

2. The Pennsylvania Rules of Criminal Procedure do not specifically
address the issue posed by the imposition of bail following re-arrest.
However, the record indicates that in May 2000, the Municipal Court of
Philadelphia, with the agreement and cooperation of the District
Attorney's Office and the Defender Association, instituted a policy
permitting bail posted on an initial arrest to be credited to bail set as
a
result of a re-arrest.

3. The District Attorney's rearrest policy is not challenged here as
violative of Pennsylvania law and, accordingly, we assume for present
purposes that it is consistent with that law.

                                4
       judicial authorization, persons whose criminal charges
       have been dismissed by a Philadelphia Municipal Court
       Judge based on a determination that the
       Commonwealth had not established, by reason of lack
       of evidence or lack of prosecution, probable cause to
       hold the criminal case for trial.

The District Court's injunction prohibited the District
Attorney from "ordering the re-arrest and detention,
without judicial authorization, of any persons on any
charge which has been dismissed by a Philadelphia
Municipal Court judge at a preliminary hearing because of
the failure of the Commonwealth . . . to establish probable
cause or a prima facie case." This appeal followed. We will
reverse.

II.

Stewart was arrested and charged with one count of the
felony of aggravated assault, and with misdemeanor counts
of simple assault, recklessly endangering another person,
and possession of an instrument of crime. One day after his
arrest, Stewart was preliminarily arraigned and released on
bail. A preliminary hearing was subsequently held in
Philadelphia Municipal Court. At the conclusion of that
hearing, the presiding judge ruled that the Commonwealth
had not presented a prima facie case against Stewart on the
felony count. Accordingly, the judge dismissed the felony
count of aggravated assault and scheduled Stewart's case
for trial on the remaining misdemeanor counts only. The
Assistant District Attorney who was prosecuting Stewart in
the courtroom immediately reinitiated an identical felony
charge of aggravated assault. The allegations of the new
complaint were identical to those in the complaint that had
just been dismissed. Police re-arrested Stewart on the
"dismissed" charge, and detained him for another
preliminary hearing. Because Stewart was not able to make
the bail set at his second preliminary arraignment, he
remained in jail for approximately two weeks until his
second preliminary hearing was held. Stewart filed this civil
rights action under 42 U.S.C. S 1983 while he was in
custody awaiting the second preliminary hearing.

                               5
III.

The District Attorney first argues that the District Court
should have abstained from exercising its jurisdiction
under the doctrine of Younger v. Harris, 

(1971).
The District Court decided not to abstain, and we conclude
that it did not abuse its discretion in doing so.

Younger was arrested under a state criminal statute
which allegedly violated his right to free speech under the
First and Fourteenth Amendments. While the state charges
were still pending, Younger filed an action in federal court
to enjoin his prosecution. The District Court agreed that
the statute was void for vagueness and overbroad in
violation of the First and Fourteenth Amendments and
enjoined the District Attorney from enforcing it. See 

The Supreme Court reversed. It held, based on
principles of equity and federalism, that a federal court
should not enjoin a state criminal proceeding without a
showing that the plaintiff would suffer irreparable injury
"both great and immediate." 

(quoting Fenner v.
Boykin, 

(1926)). This standard cannot be met,
the Court said, if "the threat to the plaintiff 's federally
protected rights . . . [can be addressed] by his defense
against a single criminal prosecution." 

.

In Younger, the federal plaintiff requested that the
District Court find unconstitutional the law under which
the government was prosecuting him and thereby foreclose
his prosecution. In this case, the equitable relief requested
is not aimed at state prosecutions, but at the legality of the
re-arrest policy and the pretrial detention of a class of
criminal defendants. The issues here raised could not have
been raised in defense of Stewart's criminal prosecution,
and the injunction sought would not bar his prosecution.

We conclude that the Court's application of Younger in
Gerstein v. Pugh, 

(1975), controls our
resolution of the abstention issue here. The defendants in
Gerstein were arrested pursuant to a prosecutor's
information. Under applicable Florida rules and statutes,
prosecutors could charge noncapital offenses by
information without a preliminary hearing or leave of court.
The Florida courts had previously held that the prosecutor's

                               6
filing of an information "foreclosed the suspect's right to a
preliminary hearing." 

Several arrestees detained under this procedure filed a
class action against county officials in federal District Court
alleging that they had "a constitutional right to a judicial
hearing on the issue of probable cause and requesting
declaratory and injunctive relief." 

The State of
Florida argued that Younger compelled abstention because
federal action would interfere with state proceedings by
requiring the state to grant prompt probable cause hearings
contrary to the state's own rules and procedures. The Court
unanimously rejected that argument. The Court stated:

       The District Court correctly held that respondents'
       claim for relief was not barred by the equitable
       restrictions on federal intervention in state
       prosecutions[ ] [under] Younger v. Harris. The
       injunction was not directed at the state prosecutions
       as such, but only at the legality of the 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.

n.9 (citations omitted, emphasis added). We find
the situation before us analogous to that before the
Supreme Court in Gerstein.

We also find the Supreme Court's subsequent
characterization of Gerstein to be helpful here. In Moore v.
Sims, 

(1979), the Court distinguished
Gerstein from the case before it on the following ground:

       The reliance on Gerstein is misplaced. That case
       involved a challenge to pretrial restraint on the basis of
       a prosecutor's information alone, without the benefit of
       a determination of probable cause by a judicial officer.
       This Court held that the District Court properly found
       that the action was not barred by Younger because the
       injunction was not addressed to a state proceeding and
       therefore would not interfere with the criminal
       prosecutions themselves. "The order to hold

                               7
       preliminary hearings could not prejudice the conduct
       of the trial on the 

(quoting 

n.9).
That is precisely the situation here.

The District Court properly exercised jurisdiction over
this matter.

IV.

To obtain certification, Stewart was required to show that
the purported class met the four prerequisites of Rule 23(a)
and at least one of the elements of Rule 23(b). See Baby
Neal v. Casey, 

, 55 (3d Cir. 1994). Rule 23(a)
states:

       One or more members of a class may sue or be sued
       as representative parties on behalf of all only if (1) the
       class is so numerous that joinder of all members is
       impracticable, (2) there are questions of law or fact
       common to the class, (3) the claims or defenses of the
       representative parties are typical of the claims or
       defenses of the class, and (4) the representative parties
       will fairly and adequately protect the interests of the
       class.

Fed. R. Civ. P. 23(a). The District Attorney argues that
Stewart's claim fails to meet the (1) numerosity, (2)
commonality, and (3) typicality elements required for class
certification under Rule 23(a). She concedes that the named
class representative will adequately represent the interest of
absent class members as is required under Rule 23(4).

Rule 23(b)(2) provides for class certification where the
requirements of Rule 23(a) are satisfied and "the party
opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole." Fed.
R. Civ. P. 23(b)(2).

A. Numerosity

No minimum number of plaintiffs is required to maintain
a suit as a class action, but generally if the named plaintiff

                               8
demonstrates that the potential number of plaintiffs
exceeds 40, the first prong of Rule 23(a) has been met. See
5 James Wm. Moore et al., Moore's Federal Practice
S 23.22[3][a] (Matthew Bender 3d ed. 1999). Here, both
parties concede that, prior to the injunction, the District
Attorney had re-arrested 67 defendants under Rule 544
pursuant to the disputed policy. Forty-one of those
defendants had been discharged for lack of evidence and
the resulting failure to establish probable cause. The
number of class members will increase further if the policy
continues in force. Accordingly, plaintiffs satisfy the
numerosity requirement of Rule 23(a).

B. Commonality

"The concepts of commonality and typicality are broadly
defined and tend to merge. Both criteria seek to assure that
the action can be practically and efficiently maintained and
that the interests of the absentees will be fairly and
adequately represented. Despite their similarity, however,
commonality and typicality are distinct requirements under
Rule 23." Baby Neal v. 

(internal
citations omitted). "The commonality requirement will be
satisfied if the named plaintiffs share at least one question
of fact or law with the grievances of the prospective class."

The District Attorney argues that circumstances among
the potential class members vary to such an extent that
there is no commonality. She reminds us that defendants
can have their charges dismissed at the preliminary hearing
for many different reasons. The District Attorney also
argues that a discharge for a lack of prosecution, in which
the charges are dismissed because the government cannot
produce a necessary witness and the court does not grant
a continuance, differs from a discharge for a lack of
evidence, in which the government fails to make a prima
facie case. She insists that these "dissimilar" situations
cannot be included in the instant class certification.

However, this argument fails to recognize that, despite
the differences that undoubtedly exist from case to case,
common issues of law and fact predominate. The class is

                               9
defined such that each class member had his/her criminal
case discharged by a judicial officer and was then re-
arrested based solely upon the exercise of prosecutorial
discretion, without any judicial determination of probable
cause for the arrest. The District Court specifically enjoined
re-arrest of persons against whom charges have been
dismissed at the preliminary hearing because of failure to
establish probable cause or a prima facie case. Therefore,
"at least one question of fact or law" is common to each
member of this prospective class.

C. Typicality

The typicality inquiry centers on whether the interests of
the named plaintiffs align with the interests of the absent
members. See 5 James Wm. Moore et al., Moore's Federal
Practice S 23.24[1]; Newton v. Merrill Lynch, Pearce, Fenner
& Smith, Inc., 259 F.3d 154,183 (3d. Cir. 2001) ("The
typicality inquiry . . . centers on whether the named
plaintiffs' individual circumstances are markedly different
or . . . the legal theory upon which the claims are based
differs from that upon which the claims of other class
members will perforce be based.") (citation omitted).
"[C]ases challenging the same unlawful conduct which
affects both the named plaintiffs and the putative class
usually satisfy the typicality requirement irrespective of the
varying fact patterns underlying the individual claims."
Baby 

(citation omitted)."Factual
differences will not render a claim atypical if the claim
arises from the same event or practice or course of conduct
that gives rise to the claims of the [absent] class members,
and if it is based on the same legal theory." Hoxworth v.
Blinder, Robinson & Co., Inc., 

, 923 (3d Cir.
1992) (quoting 1 Herbert B. Newberg, Newberg on Class
Actions S 3.15 at 168 (2d ed. 1985)). Here, Stewart
challenges the District Attorney's re-arrest policy and the
constitutionality of that policy is at the heart of each of the
absent members claims.

D. Rule 23(b)(2)

Rule 23(b)(2) is designed primarily to authorize class
action treatment for cases like the one before us that seek

                               10
injunctive relief. See Baby 

. Moreover, it
is generally recognized that civil rights actions seeking relief
on behalf of classes like the putative class normally meet
the requirements of Rule 23(b)(2). See 

("[T]he
injunctive class provision was `designed specifically for civil
rights cases seeking broad declaratory or injunctive relief
for a numerous and often unascertainable or amorphous
class of persons.' ") (citations omitted). Finally, Baby Neal
teaches that courts should look to whether "the relief
sought by the named plaintiffs [will] benefit the entire
class." 

Here, Stewart seeks injunctive relief in a
civil rights claim and the relief sought could benefit the
entire class.

Thus, we conclude that the District Court did not abuse
its discretion in certifying this litigation as a class action.
Accordingly, we now turn to the merits of the dispute.

V.

The applicable Fourth Amendment law "represents a
necessary accommodation between the individual's right to
liberty and the State's duty to control crime." 

. From the individual's perspective, that
accommodation provides that he or she may not be
arrested in the absence of probable cause and may not be
detained for over 48 hours without a neutral magistrate's
review of that probable cause determination. See 

; County of 

.
Conversely, from the state's perspective, that
accommodation provides that a state may arrest and detain
an individual without a warrant if it has probable cause
and provides for review of the probable cause determination
by a neutral party within 48 hours of the arrest. 

the
function of the reviewing neutral magistrate to determine
"whether the facts available to the officers at the moment of
the arrest would `warrant a man of reasonable caution in
the belief ' that an offense has been committed." Beck v.
Ohio, 

, 96 (1964) (quoting Carroll v. United
States, 

, 162 (1925)).

The record does not establish that Stewart or any
member of the class was deprived of anything that this

                               11
constitutional accommodation guarantees them. It does not
establish that the officer initially arresting Stewart (or any
member of the class) or the officer rearresting Stewart (or
any member of the class) lacked information at the time of
the arrest that would "warrant a man of reasonable caution
in the belief that an offense had been committed." 

the record establish that Stewart (or any member of
the class) was detained for a total of more than 48 hours
without a review of the probable cause determinations by a
neutral magistrate. These facts should have ended the
matter and mandated summary judgment in defendants'
favor. The Pennsylvania law requiring probable cause for
arrests and a preliminary arraignment within 48 hours
satisfies all that the Fourth Amendment requires, and there
is no reason to believe that law was not fully complied with
here. See Commonwealth v. Abdul-Salaam, 

,
347-48, n.10 (Pa. 1996) (noting that Pennsylvania's pretrial
process up through the preliminary arraignment addresses
the constitutional requirements of Gerstein and County of
Riverside).4

What Stewart asks us to do is to deprive Pennsylvania of
its right to reinitiate a criminal proceeding in accordance
with a generally applicable process that is entirely
consistent with the dictates of the applicable Fourth
Amendment law. There is no precedent of which we are
aware, however, for the proposition that the federal
Constitution prohibits the reinitiation of a criminal
proceeding in such a manner where double jeopardy has
not attached and no pattern of prosecutorial harassment
has been alleged.5
_________________________________________________________________

4. Stewart's rearrest, of course, would have violated the Fourth
Amendment had it been made without probable cause. The same would
be true with respect to an arrest of any member of the class without
probable cause. Stewart has not attempted to show, however, that the
district attorney lacked probable cause at the time of his arrest or
anyone else's. The record does not reveal, for example, what information
was presented to the neutral magistrate at Stewart's second preliminary
arraignment and was there found to constitute probable cause.
5. As the commentary to Pa. R. Crim. P. 544 explains, the Pennsylvania
"courts have held that the reinstitution [of a prosecution under that
rule]
may be barred [when] the Commonwealth has repeatedly rearrested the
defendant in order to harass him . . . ." Pa. R. Crim. P. 544 cmt. (citing
Commonwealth v. Thorpe, 

(Pa. 1997); Commonwealth v.
Shoop, 

(Pa. Super. 1992)). No pattern of harassment is
alleged here.

                               12
Stewart's argument is predicated on the proposition that
the federal Constitution requires Pennsylvania to give
preclusive effect to the disposition of a municipal judge at
a preliminary hearing unless and until there is a finding of
probable cause in a subsequent judicial proceeding. This
novel proposition and the arguments advanced in support
of it are unpersuasive.

Contrary to Stewart's repeated assertions, there is
nothing inherently inconsistent between a finding that the
Commonwealth has failed to establish a prima facie case at
the preliminary hearing and the existence of probable cause
for a second arrest.

First, it is not at all clear to us that the "probable cause"
standard and the "prima facie case" standard under
Pennsylvania law require the Commonwealth to provide the
same level of assurance that the subject has committed a
crime. The different terms chosen to describe the
Commonwealth's burden at the time of arrest and
preliminary arraignment and its burden at the time of the
preliminary hearings, suggest to us that prima facie case
standard was intended to require different and greater
assurance of guilt. "Probable cause," of course, speaks in
terms of a probability while "prima facie case" has been
defined by the Pennsylvania Supreme Court as evidence
"such that if presented at the trial in court, and accepted
as true, the judge would be warranted in letting the trial go
to the jury." Commonwealth v. Wojdak, 

, 996
(Pa. 1983) (emphasis in original) (citations omitted). Thus,
while the Commonwealth need not convince the preliminary
hearing judge of guilt beyond a reasonable doubt, it must
nonetheless present admissible evidence at the preliminary
hearing that would warrant a reasonable jury in finding
each of the elements of the offense by that standard. 

thus not surprising to find Pennsylvania cases
recognizing that the standard of probable cause and the
prima facie case standard are conceptually distinct. See
Commonwealth v. Cartegena, 

, 355 (Pa. 1978)
(plurality opinion) (finding that probable cause had existed
for the institution of criminal proceedings, though a prima
facie case had not been established); Commonwealth v.
Days, 

, 800 (Pa. Super. 1998) (stating in the

                               13
context of affirming that a magistrate properly determined
that probable cause existed to issue a search warrant that
"[p]robable cause is based on a finding of probability, not a
prima facie showing of criminal activity"); Commonwealth v.
Scott, 

, 720 (Pa. Super. 1980) ("It would be
unreasonable to require payment of costs every time the
Commonwealth wanted to challenge a finding of lack of
prima facie case when there had not even been a hint of
harassment or failure to show probable cause.").

Even if "probable cause" and "prima facie case" are
coterminus standards, however, we would nevertheless
conclude that there is nothing inherently inconsistent
between a failure of the Commonwealth to establish a prima
facie case at the preliminary hearing and the existence of
probable cause for a second arrest. The database that the
Commonwealth may consult in determining whether there
is probable cause for a second arrest is different from, and
more comprehensive than, the database to which
consideration is limited at the preliminary hearing.

First, in determining whether there is probable cause for
a second arrest the prosecutor is entitled to consider any
information known to him that a reasonably prudent man
might regard as reliable. See McKibben v. Schmotzer, 

, 492 (Pa. 1997) (defining probable cause as"a
reasonable ground or suspicion supported by
circumstances sufficient to warrant an ordinarily prudent
man in the same situation in believing that the party is
guilty of the offense"). By way of contrast, the presiding
judge at a preliminary hearing must find that the
Commonwealth has not presented a prima facie case unless
it has produced information in legally admissible form
substantiating each element of the offense. See
Commonwealth ex rel Buchanan v. Verbovitz, 

,
174 (Pa. 1990) (holding that where the Commonwealth
relied upon inadmissible hearsay to establish a prima facie
case, it did not meet its burden of producing at the
preliminary hearing "legally competent evidence to
demonstrate the existence of facts which connect the
accused to the crime charged").

Second, the database available to the prosecutor is
different from that available to the judge determining the

                                14
prima facie case issue because a prima facie case can exist
only on the basis of legally admissible evidence presented in
court at the time preliminary hearing, while probable cause
can exist on the basis of all the reliable information known
to the prosecution at the time of the second arrest. The
District Attorney notes, for example, that the most frequent
reason for a re-arrest is the failure of a witness to appear
who the Commonwealth has reason to believe can provide
important evidence of guilt. In such a situation, a
determination that a prima facie case has not been
presented is not inconsistent with the existence of probable
cause for immediate re-arrest. Moreover, given that
preliminary hearings are often held while the investigation
of the crime is continuing, it will frequently be the case that
the Commonwealth will gain additional knowledge of
incriminating evidence within minutes or hours after the
preliminary hearing concludes. The District Court's
injunction bars the District Attorney from ever reinitiating
charges without prior judicial approval, no matter how
much additional incriminating information she learns in
the course of her investigation.

More fundamentally, however, even if there were some
necessary inconsistency between a finding that the
Commonwealth failed to present a prima facie case at the
preliminary hearing and the existence of probable cause for
rearrest, we would still be unable to find anything in the
United States Constitution that requires a state to give
collateral effect to a preliminary hearing finding so as to
preclude the state from reinitiating the prosecution in the
normal manner. As the District Court concluded,
traditional principles of res judicata would not appear to
require that collateral effect be given to a preliminary
hearing disposition,6 but even if that were not the case,
Pennsylvania would be free, within the limits of due
process, to fashion its own rules of preclusion.

In summary, Pennsylvania's requirement that a criminal
prosecution may not go forward unless the state presents
_________________________________________________________________

6. See Commonwealth v. Cartagena, 

(Pa. 1978) (holding
that rearrest was proper even though the same charge was dismissed at
prior preliminary hearing).

                               15
evidence constituting a prima facie case of guilt before a
magistrate at the time of the preliminary hearing is not
necessary to satisfy the requirements of the Fourth
Amendment under Gerstein and County of Riverside. If
Pennsylvania chooses to impose this additional
requirement, there is, of course, no federal constitutional
impediment to its doing so. Nor, of course, is there any
constitutional mandate that it do so.

What Stewart asks us to do is to take a Pennsylvania
hearing process that is not constitutionally required and
fashion a federal constitutional rule giving collateral effect
to the magistrate's ruling at that hearing so as to bar the
state from exercising its right to arrest when it believes in
good faith that it has probable cause. This proposed rule
appears to be based solely on an appeal that respect be
accorded the authority of the municipal judge who presides
at the preliminary hearing. While Pennsylvania could, if it
so chose, accord such respect to a judge's prima facie case
ruling, we find nothing in the United States Constitution
that requires it to do so.7

VI.

The judgment of the District Court will be reversed, and
this matter will be remanded for further proceedings
consistent with this opinion.
_________________________________________________________________

7. Given the early stage at which a preliminary hearing occurs and the
fluid state of affairs that frequently exist at that stage, Pennsylvania's
choice not to accord such respect to the prima facie case ruling is
clearly
not an unreasonable one.

                               16
McKEE, Circuit Judge concurring in part, and dissenting in
part:

I join sections II, III, and IV of the majority opinion,
however I disagree with the majority's conclusion that the
District Attorney's implementation of Pa. R. Crim. P. 544 is
constitutional.1 I therefore dissent from section V of the
majority opinion.

I.

Under Pa. R. Crim. P. 544, the Philadelphia District
Attorney's Office has adopted a practice of re-arresting
some defendants immediately after a Municipal Court
Judge has discharged felony charges at a preliminary
hearing. The discharges are based upon the judge's
conclusion that the defendant's continued detention is not
supported by probable cause. The re-arrests do not result
from any additional evidence, or changed circumstances.
An Assistant District Attorney merely restamps the same
criminal complaint that was originally filed. The defendant
is then immediately re-arrested on the same charges that
have just been dismissed even though a judge has just
ruled that the evidence offered in support of the those
charges is insufficient to support them.2 Rule 544 does not
require this practice, nor can it legitimize this practice.
_________________________________________________________________

1. As the majority notes, The Supreme Court of Pennsylvania entered an
order reorganizing and renumbering the Pennsylvania Rules of Criminal
Procedure on Mach 1, 2000. Like my colleagues, I use the current
numbering system throughout this dissent.

2. My colleagues suggest that the decision to re-arrest may have been
based on additional information that the prosecutor learned from some
"database" and that this information may not have been known when
the judge discharged the felony charges. See Maj. Op. at 14 ("The
database that the Commonwealth may consult in determining whether
there is probable cause for a second arrest is different from and more
comprehensive than, the database to which consideration is limited at
the preliminary hearing."). It is not at all clear what this data base is,
where it came from, or what it contains.

The only thing that is clear about this "database" is that there is no
mention of it in the record, and that the prosecutor did not have time to
consult any such "database" before Stewart was re-arrested. That re-

                                17
II. Applicable Rules of Criminal Procedure.

Under Pa. R. Crim. P. 518(a), a defendant in Philadelphia
County who is charged in a complaint with a felony and
arrested without a warrant is detained pending a
preliminary arraignment. That preliminary arraignment
usually occurs within 24 hours of the defendant's arrest.
See Pa. R. Crim. P. 518(a). At the preliminary arraignment
a Bail Commissioner, functioning as the "issuing
authority," informs the defendant of his/her rights,
including the right to counsel, and appoints counsel if
necessary.3 The defendant is also given a copy of the
criminal complaint that has been accepted for filing, Pa. R.
Crim. P. 540(a), 520, 523 and unless a defendant who is
represented by counsel waives a preliminary hearing, the
Bail Commissioner/issuing authority must also set a date
for a preliminary hearing before a Philadelphia Municipal
Court judge. That date can be "no less than 3 nor more
than 10 days after the preliminary arraignment." Pa. R.
Crim. P. 540(e)(1).

If the Commonwealth is able to establish a prima facie
case for a felony charge at the ensuing preliminary hearing,
_________________________________________________________________

arrest here occurred as soon as the judge dismissed the felony charges.
Stewart was apparently arrested in the courtroom, and in front of the
judge who had just ruled that there was no probable cause to support
his detention on those charges. Moreover, the District Attorney has not
even attempted to justify this practice by relying on some unspecified
database of additional information that would have supported the
dismissed charges if the judge had only known about it.

3. In 1984, the Pennsylvania General Assembly created the office of Bail
Commissioner for the Philadelphia Municipal Court. See 42 Pa. Cons.
Stat. Ann. S 1123(a); see also Murray v. Silberstein, 

, 62 (3d
Cir. 1989) (noting creation of Bail Commissioner position by the
Pennsylvania legislature). In 1994, former Rule 140 (now Rule 540) of
the Pa. R. Crim. P. was amended to require the "issuing authority" at a
preliminary arraignment to determine probable cause. Pa. R. Crim. P.
540(c). This amendment to Rule 140 was adopted in response to County
of Riverside v. McLaughlin, 

(1991), wherein the Supreme
Court held that a probable cause determination must generally be made
within 48 hours of arrest. In Philadelphia County, the issuing authority
is the bail commissioner.

                               18
the Municipal Court Judge orders the defendant held for
trial in the Court of Common Pleas on the felony charge(s).
If the Municipal Court judge dismisses all felony charges
due to lack of evidence or lack of prosecution so that only
misdemeanor charges remain, the defendant is tried on
those misdemeanor charges in Municipal Court. See Pa. R.
Crim. P. 543(a), 1001(A). If the Municipal Court Judge at
the preliminary hearing concludes that the Commonwealth
has not established a prima facie case on any of the
charges, the judge must discharge the defendant unless a
continuance is granted pursuant to a request "supported by
reasonable grounds." See Pa. R. Crim. P. 542(D).4

Under the Rules of Criminal Procedure in effect in
Pennsylvania before January 1, 2000, if a Municipal Court
_________________________________________________________________

4. The majority notes that the District Attorney suggests that the most
common reason defendants are immediately re-arrested at the
preliminary hearing is because important witnesses fail to appear thus
compromising the Commonwealth's ability to establish probable cause.
See Maj. Op. at 15. However, that was not the case here. The
prosecution presented all of the evidence against Stewart it wanted to,
and a judge ruled that evidence insufficient to detain him on felony
charges.

Inasmuch as Rule 542(D) specifies that a prosecutor may request a
continuance "supported by reasonable grounds," I fail to see why re-
arrest and imprisonment rather than requesting a continuance is the
favored response to a witnesses failure to appear. Requiring the
prosecutor to request a continuance rather than automatically resorting
to the expediency of detention places no burden whatsoever on the
Commonwealth. It merely requires that the prosecutor offer an
explanation for the witnesses failure to appear, and assumes that a
judge will evaluate the adequacy of the explanation. This is no more than
is required of lawyers in criminal and civil courtrooms all over this
country everyday. Prosecutors in Philadelphia County are as able as the
lawyers elsewhere, and I fail to see why the Assistant District Attorneys
in Philadelphia are not required to request a continuance and offer an
explanation for a witnesses failure to appear just like other lawyers are
expected to. This would allow a judge to gauge the efforts that were
made to produce the witness and also afford an opportunity for the judge
to decide if bail should be continued or reduced if the continuance is
granted. Under the current practice a defendant can be re-arrested and
detained in jail even if the witness did not appear because of some
dereliction on the part of the prosecutor.

                               19
judge dismissed criminal charges at the preliminary hearing
due to lack of evidence or lack of prosecution, the attorney
for the Commonwealth could reinstitute charges by
submitting a new criminal complaint and an affidavit of
probable cause to a judge of the Court of Common Pleas.
See Phila. Crim. R. 500(H). However, a warrant for the
defendant's re-arrest would only issue if the court approved
the submission. If the initial dismissal of charges in the
Municipal Court was based on a finding of no probable
cause, the preliminary hearing following any re-arrest was
scheduled before a judge of the Court of Common Pleas. In
all cases, however, a re-arrest could proceed only after a
judicial officer had approved a resubmission and
determined that there was indeed probable cause for the re-
arrest.

On January 1, 2000, the current version of Pa. R. Crim.
P. 544 (then Pa. R. Crim P. 143) went into effect. The Rule
provides:

       Reinstituting Charges Following Withdrawal or
       Dismissal.

       (A) When charges are dismissed or withdrawn at, or
       prior to, a preliminary hearing, the attorney for the
       Commonwealth may reinstitute the charges by
       approving, in writing, the refiling of a complaint with
       the issuing authority who dismissed or permitted the
       withdrawal of the charges.

       (B) Following the refiling of a complaint pursuant to
       paragraph (A), if the attorney for the Commonwealth
       determines that the preliminary hearing should be
       conducted by a different issuing authority, the attorney
       shall file a Rule 23 motion with the clerk of courts
       requesting that the president judge, or a judge
       designated by the president judge, assign a different
       issuing authority to conduct the preliminary hearing.
       The motion shall set forth reasons for requesting a
       different issuing authority.

Pa. R. Crim. P. 544. Nothing in the text of that rule requires
the defendant's re-arrest pending completion of the second
preliminary hearing. That practice arises from the specific
policy at issue here, not from the language of the Rule.

                               20
The majority believes that Stewart is asking us"to
deprive Pennsylvania of its right to reinitiate a criminal
proceeding" following discharge of felony charges at a
preliminary hearing. Maj. Op. at 12. The majority concludes
that "[t]here is no precedent of which we are aware, . . . for
the proposition that the federal Constitution prohibits the
reinitiation of a criminal proceeding in such a manner
where double jeopardy has not attached and no pattern of
prosecutorial harassment has been alleged." 

framing of the issue mischaracterizes the relief Stewart
is seeking as well as the district court's order. The district
court only enjoined the District Attorney from "ordering the
re-arrest and detention, without judicial authorization, of
any persons on any charge which has been dismissed by a
Philadelphia Municipal Court judge at a preliminary
hearing because of the failure of the Commonwealth .. . to
establish probable cause or a prima facie case," 

and that is all Stewart is asking us to do.

The injunction does not preclude prosecutions; it
precludes unauthorized detentions. It prevents the District
Attorney from detaining a defendant pending a second
preliminary hearing where a judge has dismissed the felony
charges holding a defendant in custody. It also prevents the
prosecutor's assessment of probable cause from
outweighing and reversing a judicial determination of
probable cause. I do not think a request to do that is all
that extraordinary.

Accordingly, the majority's declaration that "[t]he District
Court's injunction bars the District Attorney from ever
reinitiating charges without prior judicial approval, no
matter how much additional incriminating information she
learns in the course of her investigation," is simply wrong.
See Maj. Op. at 15 (emphasis in original).

Moreover, the District Attorney is not even arguing that
enforcing the district court's injunction has the effect the
majority assigns to it; nor could she. In discussions
between the District Attorney's Office, the Defender
Association of Philadelphia, and the Philadelphia Municipal
Court, the District Attorney initially proposed that
prosecutions be reinitiated under Rule 544 by simply
refiling charges immediately after the Municipal Court

                               21
dismissal without re-arresting the defendant. Pursuant to
that policy, the refiled case would have received a new date
for a preliminary hearing and the defendant would have
received a subpoena to appear on that new date. For
reasons unknown to us, the Defender Association and the
Municipal Court rejected that proposal. Accordingly, since
April 17, 2000, the District Attorney has ordered some
defendants re-arrested with no additional judicial
determination of probable cause under Rule 544. The
prosecutor simply refiles identical charges and those
defendants are immediately taken into custody to await a
new preliminary arraignment on refiled charges that are
identical to charges that have just been dismissed by a judge.5
Dist. Court Op. at 4.

III. The Fourth Amendment Prohibits These Re-
Arrests.

The Fourth Amendment attempts to guard against
unreasonable restrictions on liberty by requiring that an
arrest be supported by probable cause, and that, where
possible, a neutral magistrate determine if probable cause
exists.6 Thus, in Katz v. United States, in referring to the
threshold showing needed for a search under the Fourth
Amendment the Court stated, "searches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment-- subject only to a few specifically established
and well-delineated exceptions." 

, 357 (1967).
More than half a century ago, the Supreme Court declared,
"[t]o provide the necessary security against unreasonable
intrusions upon the private lives of individuals, the framers
of the Fourth Amendment required adherence to judicial
processes wherever possible." Trupiano v. United States,

, 705 (1948) (emphasis added), overruled on
other grounds by United States v. Rabinowitz, 

(1950).
_________________________________________________________________

5. It is not clear how the District Attorney decides who will be
immediately re-arrested in this manner, and who will not be.

6. The Fourteenth Amendment extends the Fourth Amendment's
guarantee against unreasonable search or seizure to the states. See
Mapp v. Ohio, 

, 655 (1961).

                               22
In Gerstein v. Pugh, 

(1975) the Supreme
Court addressed the inherent tension between protecting
an individual's liberty on the one hand, and the real world
necessities of law enforcement on the other. The Court
concluded that the Fourth Amendment resolves that
tension by allowing a warrantless arrest under certain,
limited circumstances. The resulting compromise achieves
the necessary balance between law enforcement and
individual liberty because "a policeman's on-the-scene
assessment of probable cause provides legal justification for
arresting a person suspected of a crime, and for a brief
period of detention to take the administrative steps incident
to arrest." Gerstein, 

, 114.

The defendants in Gerstein were arrested pursuant to a
prosecutor's information. Under applicable Florida rules
and statutes, prosecutors could charge noncapital offenses
by information without a preliminary hearing or leave of
court. State courts had previously held that the
prosecutor's filing of an information "foreclosed the
suspect's right to a preliminary hearing. State courts had
also held that habeas corpus was only available to
challenge the probable cause for detention pursuant to an
information under "exceptional circumstances." 

"As a result, a person charged by information could be
detained for a substantial period solely on the decision of
the prosecutor." 

the Supreme Court framed
the issue as follows: "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." 

Stated another way,
the issue was, "whether a person arrested and held for trial
on an information is entitled to a judicial determination of
probable cause for detention. . . ." 

The Court began its analysis of that question by
discussing the aforementioned practical limitations that
arise from the practicalities of law enforcement. The Court
observed:

       Maximum protection of individual rights could be
       assured by requiring a magistrate's view of the factual
       justification prior to any arrest, but such a
       requirement would constitute an intolerable handicap

                               23
       for legitimate law enforcement. Thus, while the Court
       has expressed a preference for the use of arrest
       warrants when feasible, it has never invalidated an
       arrest supported by probable cause solely because the
       officers failed to secure a 

. However, the relaxation of the warrant
requirement is tightly tethered to circumstances that are
sufficiently compelling to justify relaxing the protection
endemic in review by a neutral magistrate. When such
exceptional circumstances exist, "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." 

of allowing a police officer to react as
circumstances unfold "on-the-scene" does not, however,
minimize the importance of a suspect's liberty, nor
permanently degrade his/her entitlement to having a
judicial officer review the resulting arrest to determine if it
was, in fact, reasonable. "Once the suspect is in custody,
. . .[ ] the reasons justifying dispensing with the
magistrate's neutral judgment evaporate. . . . 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 situation here is, of course, a bit different than the
situation in Gerstein. Stewart actually received a probable
cause hearing before a neutral magistrate. However, therein
lies the proverbial "rub." As set forth above, that neutral
magistrate determined that there was no probable cause to
justify Stewart's continued restraint. Yet, despite this
judicial determination, and perhaps to spite it, Stewart was
immediately re-arrested under Rule 544 based solely upon
the prosecutor's certification and filing. Therefore, although
Stewart's initial arrest may well have been occasioned by an
officer's on-the-scene observations or averments in a
complaint, the circumstances after the arrest are not so
extraordinary as to allow the prosecutor's assessment of
probable cause to justify re-arrest if a neutral magistrate
determines that there is no probable cause to support that
re-arrest.

                               24
Stewart's case illustrates the constitutional infirmities of
the District Attorney's policy. As noted above, the victim of
the charged assault testified at Stewart's preliminary
hearing, and the Commonwealth offered no other evidence
to support the charged felony. After hearing that witness
testify, the Municipal Court Judge ruled that Stewart could
only be held for court on misdemeanor assault, and
dismissed the felony of aggravated assault. Inasmuch as
judges are not permitted to make credibility determinations
at the preliminary hearing stage, it is clear that the
Municipal Court Judge hearing the victim's testimony
concluded that the testimony was insufficient as a matter
of law to sustain a conviction for aggravated assault even if
the testimony were true. See Commonwealth v. McBride,

(Pa. 1991). Yet, even though a judge ruled
that the testimony of the victim was not sufficient to hold
Stewart on the charge of felonious aggravated assault,
Stewart was immediately re-arrested for that very charge,
and jailed for at least two more weeks. Stewart was re-
arrested (apparently before he could leave the courtroom),
and thereafter jailed because he could not post bail a
second time.

Nothing on this record establishes any "exigency" to
justify that re-arrest. Although my colleagues postulate that
the prosecutor's decision to re-arrest was based upon
information gleaned from some sort of secret "database," it
is clear that nothing on this record rises to the level of
practical necessity that allows law enforcement officers to
act upon on-the-scene judgments they are required to make
while patrolling public streets. This is especially true when
one considers that a judge has heard all of the evidence the
prosecution had to offer and concluded that the
Commonwealth could not legally detain Stewart on felony
charges. See 

.

I am, of course, aware that Stewart's detention under
Rule 544 was substantially shorter than that which
troubled the Supreme Court in Gerstein. I also realize that
the second preliminary hearing must be held promptly after
re-arrest under Rule 544. See County of Riverside v
McClaughlin, 

(1991). The majority relies upon
the 48 hour limit incorporated into Rule 544 to uphold the

                               25
District Attorney's argument that she is free to re-arrest
based only upon the prosecutor's assessment of probable
cause provided that defendants receive a prompt judicial
determination of probable cause as required by Gerstein
and County of Riverside. See Maj. Op. at 11-12.

The majority concludes that the determination of
probable cause made by the "issuing authority" at the
preliminary arraignment provides the legal basis for the re-
arrest after the preliminary hearing. My colleagues thus
accept the District Attorney's distinction between the
standard at the preliminary arraignment and the standard
at the preliminary hearing. The majority agrees that
dismissal at the preliminary hearing is based on a failure to
meet a different, and substantially higher threshold, than
that established at a preliminary arraignment. See Maj. Op.
at 12 ("The Pennsylvania law requiring probable cause for
arrests and a preliminary arraignment within 48 hours
satisfies all that the Fourth Amendment requires, and there
is no reason to believe that law was not fully complied with
here.") (citing Commonwealth v. Abdul-Salaam , 

, 347-48, n.10 (Pa. 1996)). A close examination of the
nature of preliminary hearings and preliminary
arraignments illustrates the weakness of my colleagues'
analysis.

As noted above, Pa. R. Crim. P. 540 establishes certain
procedures that an issuing authority must follow at the
preliminary arraignment following a warrantless arrest. It
includes a requirement that the issuing authority determine
if there is probable cause for the arrest. If probable cause
is found, the issuing authority must inform the defendant
of the charges filed against him/her, appoint counsel and
otherwise explain the right to counsel, set bail (assuming
the defendant was arrested for a bailable offense), and
inform the defendant of "the right to have a preliminary
hearing." Pa. R. Crim. P. 540(d). The Rule also provides that
"[u]nless the preliminary hearing is waived by a defendant
who is represented by counsel," the issuing authority must
set a date for a preliminary hearing "which shall not be less
than 3 nor more than 10 days after the preliminary
arraignment." 

preliminary arraignment is often held before a
defendant is represented by counsel, and the Rule provides
the procedure for appointing counsel in such a case, and
setting a date for a preliminary hearing (unless a defendant
who is represented by counsel waives it). It is therefore
clear from the context of the Rule that the preliminary
arraignment is designed to inform the defendant of his/her
rights, and provide a mechanism for setting bail, and
appointing counsel. The Pennsylvania Superior Court has
made this quite clear in the context of Pa. R. Crim. P. 516.
In addressing the role of the preliminary arraignment
following an arrest pursuant to a warrant under Rule 516,
the Pennsylvania Supreme Court has stated:

       Rule 516 (formerly Rule 123) of the Pennsylvania Rules
       of Criminal Procedure requires that a person who is
       arrested be brought before a judicial officer for
       preliminary arraignment without unnecessary delay.
       The purpose of this requirement is to protect an
       accused's right to know the nature and cause of the
       accusation against him, his right to counsel, and his
       right to reasonable bail.7

Commonwealth v. Perez, 

, 875 (Pa. Super.
2000) (citing Commonwealth v. Duncan, 

, 403,

, 1181 (1987)) (emphasis added). If the
Commonwealth is unable to establish a prima facie case at
the preliminary arraignment, the defendant must be
discharged. See Pa. R. Crim. P. 542(D).

Rule 516 (formally Rule 123) was enacted in 1995 in
response to the Supreme Court's decision in County of
Riverside. There, the Court required a probable cause
determination "as soon as is reasonably feasible, but in no
_________________________________________________________________

7. Rule 516 requires that a defendant who is arrested with a warrant
must be afforded a preliminary arraignment "without delay." Pa. R. Crim.
P. 516 (emphasis added). Rule 540 then establishes the requirements for
all preliminary arraignments.

It can be argued that Rule 516 does not focus on probable cause
because it only applies when a defendant has been arrested pursuant to
a warrant. Therefore, the neutral magistrate that issued the warrant has
already determined probable cause to arrest. However, as I discuss
below, Pennsylvania courts have not made that distinction.

                               27
event later than 48 hours after arrest." See Commonwealth
v. Abdul-Salaam, 

(Pa. 1996) (applying
Riverside probable cause determination requirements to
Pennsylvania criminal procedure).

The probable cause determination that is the focus of our
inquiry is, of course, made during a preliminary hearing.
The Pennsylvania Supreme Court has explained the
function and importance of the preliminary hearing under
the Pennsylvania Rules of Criminal Procedure:

       The basic principles of law with respect to the purpose
       of a preliminary hearing are well established. The
       preliminary hearing is not a trial. The principal function
       of a preliminary hearing is to protect an individual's
       right against an unlawful arrest and detention. At this
       hearing the Commonwealth bears the burden of
       establishing at least a prima facie case that a crime has
       been committed and that the accused is probably the
       one who committed it. It is not necessary for the
       Commonwealth to establish at this stage the accused's
       guilt beyond a reasonable doubt. In order to meet its
       burden at the preliminary hearing, the Commonwealth
       is required to present evidence with regard to each of
       the material elements of the charge and to establish
       sufficient probable cause to warrant the belief that the
       accused committed the offense.

Commonwealth v. McBride, 

, 591 (Pa. 1991)
(emphasis added) (citations omitted); see also
Commonwealth v. Hetherington, 

, 208 (Pa.
1975). Thus, under Pennsylvania law, the preliminary
hearing is intended to insure that the government can
establish sufficient facts to justify further detention. The
"probable cause determination" at the preliminary
arraignment is merely intended to insure that
circumstances justify holding the defendant for the 3 to 10
days it will take for the Commonwealth to present evidence
of its prima facie case at the probable cause determination
that occurs at the preliminary hearing. My colleagues state
the following in discussing the distinction between the
preliminary hearing, and preliminary arraignment:

       it is not at all clear to us that the "probable cause"
       standard and the "prima facie case" standard under

                               28
       Pennsylvania law require the Commonwealth to provide
       the same level of assurance that the subject has
       committed a crime. The different terms chosen to
       describe the Commonwealth's burden at the time of
       arrest and preliminary arraignment and its burden at
       the time of the preliminary hearings, suggest to us that
       prima facie case standard was intended to require
       different and greater assurance of guilt. "Probable
       cause," of course, speaks in terms of a probability
       while "prima facie case" has been defined by the
       Pennsylvania Supreme Court as evidence "such that if
       presented at the trial in court, and accepted as true,
       the judge would be warranted in letting the trial go to
       the jury."

Maj. Op. at 13. Although the majority concludes that the
distinction between probable cause and prima facie case "is
not at all clear" under the controlling law; Pennsylvania
courts have stated that it is clear to them that no
distinction exists. As noted above, the evidence that the
Commonwealth presents at the preliminary hearing must
be "accepted as true," see Commonwealth v McBride, 

(Pa. 1991), just as the evidence at the preliminary
arraignment must be.

Moreover, the Pennsylvania Superior Court has said:

       [I]t is clear that the concept of establishing a prima
       facie case is inextricably tied to a showing of probable
       cause. That is, for the Commonwealth to establish a
       prima facie case they need to show probable cause that
       the accused committed the offense. Therefore, a finding
       by the magistrate that the Commonwealth did not
       establish probable cause that the appellant committed
       the violations for which he was charged is the same as
       a finding that the Commonwealth did not establish a
       prima facie case. Thus contrary to appellant's
       assertion, there is no legal distinction to the choice of
       phraseology that the magistrate may have employed in
       dismissing the charges against him.

Commonwealth v. Sebek, 

, 1269 (Pa. Super.
1998) (emphasis added). As noted above, in Philadelphia
County, the determination at the preliminary hearing is

                               29
made by a Municipal Court Judge. The determination at
the preliminary arraignment is made by a Bail
Commissioner. It is the Municipal Court Judge presiding at
the preliminary hearing whom Pennsylvania law charges
with ensuring that the government is justified in depriving
the suspect of his/her liberty. In McBride, the Pennsylvania
Supreme Court expressed no difficulty in concluding that:
"the sole function [of the judge at a preliminary hearing] is
to determine whether probable cause exists to require an
accused to stand trial on the charges. . . 

. In Gerstein, the Court noted that "the sole issue" at
the probable cause hearing required by the Fourth
Amendment "is whether there is probable cause for
detaining the arrested person pending further proceedings.
. . . The standard is the same as that for arrest. That
standard -- probable cause to believe the suspect has
committed a crime. . . 

. Here, that
determination was made at the preliminary hearing by the
Municipal Court judge.

The majority bases its conclusion that probable cause is
distinct from the prima facie case in Pennsylvania on
Commonwealth v. Cartegena, 

, 355 (Pa. 1978)
(plurality opinion) (finding probable cause existed for the
institution of criminal proceedings, though a prima facie
case had not been established); Commonwealth v. Days,

, 800 (Pa. Super. 1998) ("[p]robable cause is
based on a finding of probability, not a prima facie showing
of criminal activity"); and Commonwealth v. Scott, 

, 720 (Pa. Super. 1980) ("It would be unreasonable to
require payment of costs every time the Commonwealth
wanted to challenge a finding of lack of prima facie case
when there had not even been a hint of harassment or
failure to show probable cause."). See Maj. Op. at 14.

In Commonwealth v. Cartagena, the Pennsylvania
Supreme Court did state that: "[t]he Pennsylvania courts
have recognized that the standard of probable cause and
the prima facie case standard are conceptually distinct."
However, the district court carefully considered Cartagena,
and was not persuaded. The district court's analysis of
Cartagena is worth repeating here because it fully and
accurately disposes of the District Attorney's reliance on

                               30
that case. The district court relied upon McBride in stating
the following:

       While the District Attorney was unable to articulate
       any practical distinction between the terms probable
       cause and prima facie case, she directs us to
       Commonwealth v. Cartagena, 

, 355
       (1978), in support of her position. While Cartagena
       seems to say that prima facie case and probable cause
       are different concepts under Pennsylvania law, it does
       not define them or explain the difference. Cartagena
       was decided over fifteen years before the institution of
       the present two-level system whereby a bail
       commissioner not learned in the law makes a probable
       cause determination and a Municipal Court judge
       thereafter makes a prima facie case determination.
       McBride, which was decided in 1991, has been
       construed by the Pennsylvania Superior Court to mean
       that the probable cause and prima facie case
       determinations are the same.

Stewart v. Abraham, 

*7 (E.D. Pa. 2000)
(citations omitted). I agree. Moreover, it is important to note
that, in Cartagena, unlike here, the District Attorney did
not simply refile identical charges and seek to re-arrest a
defendant without judicial intervention after a judge ruled
that the prosecution did not establish probable cause for
the initial charges. Instead:

       Appellant was arrested on May 31, 1975. A preliminary
       hearing was held in the Municipal Court of
       Philadelphia on June 5, 1975. The court took the
       matter under advisement and after hearing argument,
       found that a Prima facie case had not been established.
       The court ordered appellant discharged on June 13,
       1975.

       The Commonwealth then drew up another more
       detailed criminal complaint and another arrest
       warrant. These documents were presented to a judge of
       the Court of Common Pleas of Philadelphia who signed
       the documents on June 16, 1975. Appellant was re-
       arrested, and following a preliminary hearing before
       another judge of the Court of Common Pleas of
       Philadelphia, appellant was held for trial . . . .

                               

. Accordingly, the District Attorney in
Cartagena did not substitute his own determination for that
of a neutral magistrate as the prosecutor seeks to do here.
Moreover, in reaching the decision in Cartagena the Court
stated, "[w]hen the magistrate believes that probable cause
to hold the defendant has not been proven, he may
discharge him; . . . If the Commonwealth deems itself
aggrieved by his decision it may bring the matter again
before any other officer empowered to hold preliminary
hearings." 

assumes judicial approval
for a second arrest following discharge at a preliminary
hearing.

The majority's reliance upon a pronouncement of the
Pennsylvania Superior Court in Commonwealth v. Scott, is
also unconvincing. There, the court did state: "[i]t would be
unreasonable to require payment of costs every time the
Commonwealth wanted to challenge a finding of lack of
prima facie case when there had not even been a hint of
harassment or failure to show probable 

. Indeed, the issue in Scott was the assessment of costs
under then applicable Pa. R. Crim. P. 542(d). The Rule
allowed costs to be taxed against the government if it did
not establish a prima facie case "at the first preliminary
hearing." 

It also gave judges the discretion to
discharge a defendant if, despite the prior discharge,
"further proceedings on the same cause [were brought]
without payment" 

does not establish a
distinction between a prima facie case and probable cause,
nor does it infer any such distinction. Moreover, it is
interesting to note that even there, in 1980, the court used
"probable cause" and "prima facie case" interchangeably as
though the distinction my colleagues seek to draw did not
exist. Id at 720. For example the court noted,

       [i]t is especially unlikely that the intent of the Rule as
       revised was to require the payment of the cost . . . prior
       to any second prosecution because re-arrest and a
       second preliminary hearing is the only route open to
       the Commonwealth to test an issuing authority's
       judgment that a prima facie case has not been made
       out. It would be unreasonable to require payment of
       costs every time the Commonwealth wanted to

                               32
       challenge a finding of lack of a prima facie case when
       there had not even been a hint of harassment or failure
       to show probable 

.

I am also not persuaded by the majority's citation to
Commonwealth v. Days. There, the defendant was arrested
following execution of a search warrant. The search
conducted pursuant to that warrant revealed numerous
vials of cocaine on her person and in her apartment, and
she was convicted for possession of a controlled substance
with intent to deliver. On appeal, she challenged the trial
court's conclusion that probable cause existed for the
search. In affirming the trial court's ruling, the
Pennsylvania Superior Court did state: "[p]robable cause is
based on a finding of probability, not a prima facie showing
of criminal 

, as my colleagues
note. However, the court then stated: "[t]he duty of this
Court is to ensure that the magistrate had a substantial
basis for concluding that probable cause existed." 

course, the magistrate concluded that probable cause did
not exist, and I fail to see how Days supports the
proposition that the prosecutor is licensed to ignore that
ruling.8

Essentially then, we are asked to decide if the Fourth
Amendment will tolerate a situation where an individual
can be detained solely upon the certification of a prosecutor
even though a judicial officer has determined that the
prosecutor lacks probable cause for the defendant's
continued detention. That question answers itself. I do not
think that any system of ordered liberty based upon respect
for a judiciary charged with interpreting neutral legal
principles can condone the practice that the District
_________________________________________________________________

8. I realize that the Commonwealth is limited to admissible evidence at
the preliminary hearing, whereas hearsay may be considered at the
preliminary arraignment, and the majority's assertion that this creates a
significant distinction between the prima facie case and the probable
cause determination is not without force. However, given the strength of
the authorities that suggest a contrary result, I can not agree that this
distinction is so significant as to support the distinction the majority
seeks to draw between those two proceedings.

                               33
Attorney urges upon us under its application of Rule 544
and which my colleagues have sanctioned.

My colleagues believe that Stewart is asking us"to bar
the state from exercising its right to arrest when it believes
in good faith that it has probable cause." See Maj. Op. at
16. I agree that nothing on this record suggests that
Stewart's re-arrest was the result of bad faith. However, the
constitutional analysis here does not turn on the good faith
of the prosecutor. The issue is more fundamental than that.
Even if such re-arrests always result solely from good faith
beliefs of the prosecutor in the courtroom, the
constitutional equation would still not balance in favor of
allowing the prosecutor's judgment to negate the actions of
a judicial officer who has just ruled that there is not a
sufficient basis to deprive the defendant of his/her liberty
on felony charges.

       [A] prosecutor's responsibility to law enforcement is
       inconsistent with the constitutional role of a neutral
       and detached magistrate. . . . Probable Cause for the
       issuance of an arrest warrant must be determined by
       someone independent of police and prosecution.

.

Moreover, the Supreme Court has already rejected the
argument that a defendant's liberty interest can be held
captive to the discretion of prosecutors in this manner. In
Gerstein, the Court stated: "[a]lthough 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 

.

It can hardly be otherwise. Anyone experienced in the
emotions of criminal trials will realize what real world
practicalities suggest. The prosecutor's motivations in
causing a re-arrest under Rule 544 may often, at least in
part, result from a sincerely held belief that the defendant
"beat the case" or "got over" on the prosecutor. Such
feelings may often be based upon little more than the
emotions that are inherent in the adversarial process,
and/or the prosecutor's obviously biased conclusions about
the strength of his/her case. A system that conditions an

                               34
individual's liberty on those motivations can hardly offer
the protection that the Fourth Amendment requires; no
matter how well-intentioned the prosecutor may be.

       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.

(citing McNabb v. United States, 

(1943)). That is why we have neutral magistrates, that is
why the Supreme Court restricted the prosecution's
authority to detain absent review of a neutral magistrate,
and that is why the district court enjoined the policy that
has been implemented under Rule 544 in Philadelphia
County.

The requirement that a neutral magistrate evaluate
probable cause amounts to precious little if it can be
nullified by the prosecutor's certification that probable
cause exists, especially when the certification is made
immediately after a judge has ruled to the contrary. A
prosecutor's "official oath [can] not furnish probable cause.
. . ." 

. The prosecutor is in
substantially the same position as a law enforcement officer
who believes his/her view of the case to be correct, and
his/her cause to be righteous. More than half a century
ago, the Court stated

       [t]he point of the Fourth Amendment, which is often
       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
       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.

                                35
Johnson v. United States, 

, 13-14 (1948).9

If a defendant can not initially be detained "solely on the
decision of a prosecutor," it would stand the Constitution
on its head to allow the prosecutor that power after a judge
has ruled that the prosecutor lacks probable cause to
detain the defendant, and orders felony charges discharged.

. The fact that a non-law trained
Bail Commissioner may have previously held the defendant
for court at a time when the defendant may not have been
represented by counsel does not change the equation.

In Gerstein the Court determined that the practicalities
that justified an initial warrantless arrest could not justify
continued detention without a judicial determination of
probable cause. Here, the Commonwealth asserts that
practicalities justify continued detention for a brief period
to allow it to establish the probable cause that it believes
exists. However, the focus on practicality of prosecution
and the brevity of the detention misses the point. It
requires us to minimize both the importance of one's
liberty, and the proper role of the judge in determining the
reasonableness of an arrest.

The detention that results in these cases may well be
brief when compared to the more lengthy pretrial
detentions in Gerstein. However, we ought not to devalue
one's liberty to the extent of condoning even a brief period
of incarceration following a warrantless arrest unless a
neutral magistrate concludes that the prosecution has
established probable cause. No informed officer of the court
can seriously regard this procedural protection as a
troublesome legal technicality, and I doubt that any
prosecutor who is truly operating in good faith would
regard it as such. "The history of liberty has largely been
_________________________________________________________________

9. We have previously noted that the competitive atmosphere of litigation
will sometimes give rise to mixed motives on the part of an advocate
(there, it was the prosecutor) attempting to admit evidence in a criminal
trial. In United States v. Sampson, 

, 886 (3d Cir. 1992) we
stated, "Although the government will hardly admit it, the reasons
proffered to admit prior bad act evidence . . . is often mixed between an
urge to show some other consequential fact as well as to impugn the
defendant's character."

                               36
the history of observance of procedural safeguards and the
effective administration of criminal justice hardly requires
disregard of fair procedures imposed by law." McNabb v.
U.S., 318 U.S.332, 347 (1943).

Moreover, the brevity of the incarceration that follows re-
arrest does not weigh nearly as heavily in the balance
under these circumstances as the majority concludes. The
Supreme Court has noted that circumstances may make a
delay constitutionally unreasonable even if a probable
cause hearing occurs within 48 hours of an arrest. While
establishing the 48 hour rule for probable cause
determinations in County of Riverside, the Court cautioned:

       This is not to say that the probable cause
       determination in a particular case passes
       constitutional muster simply because it is provided
       within 48 hours. Such a hearing may nonetheless
       violate Gerstein if the arrested individual can prove
       that his or her probable cause determination was
       delayed 

.10 The Court then provided examples of such
unreasonable delay. It proclaimed: "Examples of
unreasonable delay are delays for the purpose of gathering
additional evidence to justify the arrest, . . . ." 

precisely what we have here. Therefore, I believe the
majority places far too much reliance on the fact that the
preliminary arraignments occur within 48 hours of arrest.
See Maj. Op. at 12. ("The Pennsylvania law requiring
probable cause for arrests and a preliminary arraignment
within 48 hours satisfies all that the Fourth Amendment
requires, . . .").11
_________________________________________________________________

10. In a different context, the Supreme Court has declared, "Authority
does not suggest that a minimal amount of additional time in prison
cannot constitute prejudice [under a Strickland analysis of competency
of counsel]. Quite to the contrary, our jurisprudence suggests that any
amount of actual jail time has Sixth Amendment significance." Glover v.
United States, 

, 700 (2001). (Emphasis added).

11. The majority states that Stewart's arrest would have violated the
Fourth Amendment if it had been made without probable cause, but
concludes that "Stewart has not attempted to show. . . that the district
attorney lacked probable cause at the time of his arrest or anyone

                               37
IV. Conclusion

For the reasons outlined above, I must respectfully
disagree with the majority opinion insofar as my colleagues
conclude that the district court erred in enjoining the
District Attorney's current policy under Rule 544.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

else's." The majority notes that "the record does not reveal . . . what
information was presented to the neutral magistrate at Stewart's second
preliminary arraignment and was found to constitute probable cause."
See Maj. Op. at 12, n. 4.

The record does, however, show that a judge ruled that the
Commonwealth did not have probable cause to detain Stewart on the
felony charges he was arrested for immediately after the judge made that
ruling. Therefore, I believe that the majority's focus on the second
preliminary arraignment is misplaced. The arrest had already occurred,
and there is no dispute that a judge had already ruled that the
Commonwealth had not presented the Municipal Court Judge (the
relevant "neutral magistrate") with probable cause to support that arrest.
                                38