The District of Columbia Court of Appeals denied appellant's petition for a writ of mandamus to compel the Juvenile Court to grant a hearing to determine if there was probable cause to hold appellant for trial for unauthorized use of a vehicle, an offense defined by D.C. Code § 22-2204.1 He had been arrested on November 2, 1969, at the age of 16 years, for conduct proscribed by that provision of the Code. We allowed an appeal to this court from the order of the District of Columbia Court of Appeals of March 27, 1970, denying the relief sought.

Appellant has resided with his mother in this jurisdiction since his first appearance in the Juvenile Court in this matter. He has not been tried insofar as we are advised. We think his request for a probable cause hearing should be honored notwithstanding his release pending trial.

* The Fourth Amendment to the Constitution protects a person against "unreasonable * * * seizures" and provides that no warrant shall issue "but upon probable cause." Appellant when arrested was seized, and unless upon probable cause the seizure was unreasonable and in violation of the Fourth Amendment. See, e. g., Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959). He has remained in the status of a person arrested for conduct defined as a crime and is subject to trial for that conduct as a juvenile delinquent, possibly to remain as such under the jurisdiction of the Juvenile Court until he is 21 years of age.

The Fourth Amendment is of general application to persons seized by public authority. This court accordingly held in Cooley v. Stone, 134 U.S.App. D.C. 317, 414 F.2d 1213 (1969), that a 16 year-old juvenile, taken into custody and detained pending trial, was entitled to a probable cause hearing. Our opinion incorporated the following statement of the District Court:

"No person can be lawfully held in penal custody by the state without a prompt judicial determination of probable cause. The Fourth Amendment so provides and this constitutional mandate applies to juveniles as well as adults. Such is the teaching of Gault [In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)] and the teaching of Kent [v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966)]."

We added that this result "would be compelled on Fifth Amendment grounds as well as the Fourth Amendment ground relied on in the District Court."

It follows from Cooley that it is immaterial that a juvenile does not have a right to a hearing under Rule 5, Fed. R.Crim.P. The Rule affords an adult a preliminary hearing to test the validity of his arrest under the probable cause criterion of the Fourth Amendment. This court's grant to a juvenile — albeit in custody pending trial — of a means of obtaining the same test demonstrates our view that the right derives from the Constitution itself rather than the Rule.2 The difference simply is in the method of obtaining the hearing.

The only issue which remains, then, is whether the constitutional right extends to a juvenile who is released pending his trial, which we discuss in Part II of this opinion. Before doing so, however, we review the cases cited by appellee for the position that the right to a probable cause hearing is not of constitutional status: Goldsby v. United States, 160 U.S. 70, 16 S. Ct. 216, 40 L. Ed. 343 (1895); Clarke v. Huff, 73 App.D.C. 351, 119 F.2d 204 (1941); Walker v. Rodgers, 128 U.S.App.D.C. 420, 389 F.2d 961 (1968). We will also consider recent decisions of the Supreme Court concerning juvenile proceedings.

The statement relied upon in Goldsby is the following:

The contention at bar that because there had been no preliminary examination of the accused, he was thereby deprived of his constitutional guarantee to be confronted by the witnesses, by mere statement demonstrates its error.

160 U.S. at 73, 16 S. Ct. at 218. Obviously this was not a decision under the Fourth Amendment. The question of probable cause as a basis for an arrest was neither raised nor discussed. The Court was referring to Goldsby's claim of violation of his right to confront witnesses as guaranteed by the Sixth Amendment.

In Clarke v. Huff, the language — "There is no constitutional right to a preliminary hearing prior to indictment or prior to trial" — was with respect to a case in which an indictment by a grand jury had been issued prior to defendant's arrest. We are not presently concerned with whether an indictment by a grand jury obviates the need for or is a substitute for a probable cause hearing. As in Goldsby, so in Clarke v. Huff, the issue posed in our case was not before the court. And in Walker v. Rodgers the situation was essentially the same as in Clarke v. Huff, except that the appellant was already in detention serving sentence for other offenses when the indictment was returned without a preliminary hearing. Relying upon Clarke v. Huff, the court refused to order the indictment dismissed.3

The Supreme Court has not decided the precise question presented to this court in Cooley. But as we there stated our decision followed the teaching of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), and Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), to which we add now that it also follows the teaching of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

In In re Gault the Court held that the civil character of juvenile delinquency proceedings did not remove the juvenile from the protection of pertinent provisions of the Constitution. When the over-all civil or quasi-civil character of juvenile proceedings is broken down into its components, a particular component may be found to require conformance with a particular provision of the Constitution. Thus, in In re Gault, going beyond the situation dealt with in Kent, where the problem of waiver was solved on the basis of statutory and decisional law, the Court held that the right to adequate notice of charges, the right to counsel, and the privilege against compelled self-incrimination apply to state juvenile proceedings through the Due Process Clause of the Fourteenth Amendment.4

In re Winship, supra, involved "the single, narrow question whether proof beyond a reasonable doubt is among the `essentials of due process and fair treatment' required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult." 397 U.S. at 359, 90 S.Ct. at 1070. The Court pointed out that the Constitution requires proof beyond a reasonable doubt in case of an adult and held that "[t]he same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child." Id. at 365, 90 S. Ct. at 1073.

Clearly to be seen from Kent, Gault, and Winship is the view that a constitutional guarantee of a fundamental right cannot be denied by reference to a proceeding as civil,5 when the nature of the proceeding, however denominated, calls for the protection afforded by the guarantee. This is especially true where, as in Kent, Gault, Winship, and the present case, denial to juveniles of rights available to adults is not offset, mitigated, or explained by action of the Government as parens patriae evidencing a special solicitude for juveniles. See Kent v. United States, supra, 383 U.S. at 551-52, 86 S. Ct. 1045; In re Gault, supra, 387 U.S. at 22, 87 S. Ct. 1428; In re Winship, supra, 397 U.S. at 366, 90 S. Ct. 1068.

The fact that appellant is not deprived of his freedom as was the detained juvenile in Cooley v. Stone, and has been left in the custody of his mother, does not serve to remove him from the protection of the Fourth Amendment. The Amendment applies to everyone arrested for conduct defined as a crime and for which he remains subject to answer to the law.6 It is the arrest, not simply continued detention, to which the Amendment attaches. If the original arrest was without the probable cause essential to its validity, the person seized is entitled to have it declared invalid. Unless probable cause is at the foundation of the status in which appellant is placed by the arrest, it is an unlawful status imposed by public authority for which he is entitled to an appropriate remedy. The Amendment commands this result aside from any specific inhibitions or restrictions incident to appellant's situation while he remains with his mother.7

True, the custody of one's mother is quite different from that of the warden of a jail or the custodian of a Receiving Home. Nevertheless, the right to be free of a seizure made without probable cause does not depend upon the character of the subsequent custody. Appellant accordingly has the right to have the validity of the seizure determined since he will be called to trial for conduct which led to the seizure.8

We went part of the way in this direction by our decision in Drew v. Beard, 110 U.S.App.D.C. 198, 290 F.2d 741 (1961), an adult case, where we said:

* * * the fact that an accused is at liberty on bond does not in itself constitute a reason for denying him a prompt preliminary hearing, or postponing the hearing to a future date.

While an accused adult at liberty on bond is subject to restraints and is not entirely free, we think the difference between one in that situation and a juvenile in his mother's custody pending trial does not relieve the Government of the obligation to respond to a request for a probable cause hearing to determine whether the arrest of the juvenile was valid. We can think of no offsetting advantages to the juvenile to justify denying the request.9

If appellant were in detention habeas corpus would have been an appropriate remedy. Since he was at liberty pending trial, however, with habeas corpus of uncertain availability, a petition for writ of mandamus was appropriate. The right to have the hearing upon proper request being certain, there was no discretion to deny it. Response accordingly should be made to the right which the writ communicates. We are confident, however, that the court will promptly grant the hearing. Accordingly, in lieu of our issuance of the writ prayed, our Clerk will transmit a certified copy of this opinion. See In re National Labor Relations Board, 304 U.S. 486, 58 S. Ct. 1001, 82 L. Ed. 1482 (1938); Ross v. Sirica, supra, 127 U.S.App.D.C. at 14, 380 F.2d at 561; Blue v. United States, supra, 119 U.S.App.D.C. at 321, 342 F.2d at 900; and the discussion in Thornton v. Corcoran, 132 U.S.App.D.C. 232, 234-235, 407 F.2d 695, 697-698 (1969).

Reversed and remanded for further proceedings consistent with this opinion.