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Swarner v. State (08/05/2005) ap-2002
Swarner v. State (08/05/2005) ap-2002
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KEVIN T. SWARNER,
)
) Court of
Appeals No. A-9281
Appellant,
)
Trial Court No. 3KN-05-296 CI
)
v.
)
) O
P I N I O N
STATE OF ALASKA,
)
)
Appellee.
)
[No. 2002 August 5, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles K. Cranston,
Judge.
Appearances: Arthur S. Robinson, Robinson &
Associates, Soldotna, for the Appellant.
Jean E. Seaton, Assistant District Attorney,
June Stein, District Attorney, Kenai, and
David A. Mrquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
The Governor of Montana asked the Governor of Alaska to
issue a warrant for the arrest and extradition of Kevin T.
Swarner to face felony charges in Montana. After the Governor of
Alaska issued the warrant, Swarner filed a petition for a writ of
habeas corpus in the superior court to contest his extradition.
Superior Court Judge Charles K. Cranston denied Swarners petition
and ordered that Swarner be held for the Montana authorities.
Swarner appeals. Because we agree that Montanas request is in
proper form, we affirm the superior court.
Background facts and proceedings
On February 22, 2005, police arrested Swarner near
Kenai under AS 12.70.120 for being a fugitive from justice. An
arrest warrant for Swarner had been issued by the Gallatin County
District Court in Montana on a three-count information charging
two counts of criminal distribution of dangerous drugs and one
count of criminal possession with intent to distribute.1 The
information was based on an affidavit of probable cause from a
Gallatin County deputy county attorney that was sworn to before a
notary public.
The Governor of Montana delivered a timely demand to
Alaskas Governor for Swarners extradition. On April 7, 2005,
Governor Frank H. Murkowski issued a governors warrant for
Swarners arrest and delivery to the Montana authorities. Swarner
then filed the petition for a writ of habeas corpus in superior
court that Judge Cranston denied.
Discussion
In this appeal, Swarner renews two claims that he
advanced in the superior court. First, Swarner claims that an
affidavit sworn to before a notary public is not sufficient to
support his extradition. Swarner contends that AS 12.70.020
requires that an affidavit supporting probable cause must be
sworn to before a judicial officer.
Alaska Statute 12.70.020(a)(2) specifies three possible
methods for a demanding state to support an extradition request:
(1) with an indictment; (2) with an information supported by
affidavit; or (3) with a complaint, affidavit, or other
equivalent accusation made before a magistrate[.] As we noted
above, Swarner claims that the Montana documents are flawed
because the deputy county attorneys affidavit is not sworn to
before a magistrate. But Swarner misreads the requirements of
the statute.
We addressed this same claim in Evans v. State.2 Evans
also attacked an extradition request from Montana by claiming
that an affidavit supporting an information had to be sworn to
before a magistrate. Evans contended that an affidavit sworn to
before a notary public did not meet the requirements of AS
12.70.020(a)(2).3
We rejected Evanss claim. We ruled that the three
possible methods for supporting an extradition request were
specified disjunctively in AS 12.70.020(a)(2).4 Thus, we
concluded that the requirement of the third alternative that an
affidavit be made before a magistrate did not apply to an
affidavit that supported an information.5 Evans answers Swarners
claim. Under AS 12.70.020(a)(2), an affidavit that supports an
information need not be executed before a magistrate.
Next, Swarner contends that Evans overlooked 18 U.S.C.
3182. That statute provides that the executive authority of any
state can demand the extradition of a fugitive found in another
state when the demanding state produces a copy of an indictment
found or an affidavit made before a magistrate[.]6 Swarner
contends that this statute requires that any affidavit supporting
an extradition request be executed before a magistrate. Arguing
that this federal statute preempts Alaska law, Swarner contends
that Evans is wrongly decided, and that the affidavit from the
Gallatin County prosecutor in this case does not meet the
requirements of 18 U.S.C. 3182.
But Swarners argument does not find support in case
law. For example, in Application of Hanson,7 the court rejected
a claim that an extradition request based on an information
supported by an affidavit executed before a notary public was
insufficient under federal law.8 The court reasoned that the
provision of 18 U.S.C. 3182 that provided for extradition when a
demanding state produces a copy of an indictment found or an
affidavit made before a magistrate specified those circumstances
when an asylum state must extradite, but did not bar a state from
establishing less exacting terms for the extradition of fugitives
than specified in federal law.9 The court specifically held that
an affidavit supporting an information did not have to be
executed before a magistrate.10 And in Salazar v. Eads,11 the
Seventh Circuit Court of Appeals ruled that, on its face, the
Indiana Uniform Criminal Extradition Act did not conflict with 18
U.S.C. 3182 or the federal constitution.12
The Alaska Supreme Court follows this same view. In
Moser v. Zaborac,13 the Alaska Supreme Court recognized that
federal law has not totally preempted the area of extradition to
the exclusion of the states. The court recognized that state
regulation of extradition is permitted and noted that this view
was universally accepted.14 And in Montague v. Smedley,15 the
court recognized that the federal extradition statute had not
preempted the field of extradition:
[T]he reasonable assumption is that by the
omission to extend the statute to the full
limits of constitutional power it must have
been intended to leave the subjects
unprovided for not beyond the pale of all
law, but subject to the power which then
controlled them, state authority until it
was deemed essential by further legislation
to govern them exclusively by national
authority. In fact, such conclusion is
essential to give effect to the act of
Congress...[16]
We reject Swarners claim that 18 U.S.C. 3182 preempts
state law and requires that, for purposes of an extradition
request, an affidavit supporting an information must be executed
before a magistrate.
Conclusion
The superior court properly denied Swarners petition
for writ of habeas corpus. The judgment of the superior court is
AFFIRMED.
MANNHEIMER, Judge, concurring.
In Evans v. State, 820 P.2d 1098 (Alaska App. 1991),
this Court confronted a case very much like Swarners. The State
of Montana sought extradition of the defendant, and Montanas
request was based on an information supported by an affidavit.
The problem was that this supporting affidavit was sworn to
before a notary public rather than a judicial officer.
The defendant in Evans claimed that Alaska law
specifically, AS 12.70.020(a) required that the supporting
affidavit be sworn to before a magistrate.1 We rejected this
argument as a misreading of the statute; we held that when an
extradition request is based on an information and a supporting
affidavit, AS 12.70.020(a) does not require that the affidavit be
sworn to before a magistrate.2
In the present case, the same state the State of
Montana seeks Swarners extradition based on the same type of
documentation: an information supported by an affidavit sworn to
before a notary public. Thus, our decision in Evans would appear
to be dispositive of Swarners claim that the Montana
documentation is not legally sufficient to support his
extradition. But Swarner makes a constitutional attack on the
construction of AS 12.70.020(a) that we adopted in Evans.
Swarner argues that if, as we said in Evans, AS
12.70.020(a) allows extradition based on an information (i.e., a
charging document drawn up by a prosecutor) and a supporting
affidavit that was never presented to a magistrate, then our
statute allows extradition even though there has never been a
judicial finding of probable cause in the requesting state i.e.,
no finding by a grand jury or a judicial officer that there is
indeed probable cause to believe that the person whose
extradition is sought is guilty of a crime. This, Swarner
asserts, is a constitutional flaw in our statute.
Swarner argues that because extradition is a type of
seizure, the Fourth Amendment requires that any extradition be
supported by a judicial finding of probable cause. Swarner
points out that, under the federal extradition statute, 18 U.S.C.
3182, extradition must be supported by an indictment found or an
affidavit made before a magistrate. According to Swarner, both
the Fourth Amendment and the federal statute prohibit states from
extraditing persons based solely on the assertions of a
prosecutor or police official, even if those assertions are made
under oath. Swarner contends that extradition is
unconstitutional unless it is supported by a finding of probable
cause made by an independent entity either a grand jury or a
judicial officer.
Our decision in Evans did not reach this constitutional
issue because, under the facts of Evans, the issue was moot.
Montana law does not permit a prosecutor to file a felony
information unless (1) a judicial officer has found that the
accusation is supported by probable cause, or (2) the defendant
has expressly waived the right to a judicial finding of probable
cause.3 Thus, even if our statute did potentially allow
extradition without a judicial finding of probable cause, this
issue was not presented in Evans.
It is true that the federal extradition statute speaks
of only two types of documentation: an indictment or an
affidavit made before a magistrate. But Section 3 of the Uniform
Criminal Extradition Act (1936) the source of Alaskas statute
clearly provides for a third type of documentation: an
information supported by an affidavit. And, as we noted in
Evans, several courts have concluded that an information should
be deemed the legal equivalent of an indictment or an affidavit
made before a magistrate if, under the law of the requesting
state, a prosecutor must obtain a judicial finding of probable
cause before an information can be filed against a defendant.4
There are some courts that have ruled that extradition
can not be premised on an information supported by an affidavit
if there has been no judicial finding of probable cause. These
courts have essentially declared that Section 3 of the Uniform
Criminal Extradition Act, and all state statutes based on it, are
unconstitutional if they are construed to permit extradition in
such circumstances.5
Indeed, when the National Conference of Commissioners
on Uniform State Laws promulgated the Uniform Extradition and
Rendition Act (1980) (the successor to the Uniform Criminal
Extradition Act of 1936), the Commissioners recognized that this
particular provision of Section 3 of the 1936 Act was potentially
subject to constitutional attack:
Section 3 of the [Uniform] Criminal
Extradition Act could face a serious
constitutional challenge under Gerstein [v.
Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d
54 (1975)] in [cases] where the ... demand
[for extradition is] based upon an
information supported by an affidavit but
signed by the prosecutor only. ... [In
Gerstein, the] Supreme Court held that the
Fourth Amendment requires a timely
independent determination of probable cause
as a pre-requisite to pre-trial detention.
... The prosecutorial judgment [to file
charges,] standing alone[,] did not meet the
requirements of the Fourth Amendment. In the
Courts view, it was essential that the
probable cause determination be made by
someone independent of police and
prosecution.
Comment to 3-101 of the Uniform Extradition
and Rendition Act (1980), found in Uniform
Laws Annotated (2003), Vol. 11 (Criminal Law
and Procedure), p. 104.
For this reason, 3-102 of the
Uniform Extradition and Rendition Act
requires that all requests for extradition be
supported by a judicially issued arrest
warrant, and that this arrest warrant be
accompanied by a statement that it was issued
based on an indictment, or on a conviction,
or on a showing of probable cause to believe
that the person whose extradition is
requested has committed a crime or has
violated a condition of bail, probation, or
similar judicial order.
But in Swarners case (as was true
in Evans), this potential constitutional
infirmity in the information clause of AS
12.70.020(a) is moot because Montana law
clearly requires a judicial finding of
probable cause (or the defendants express
waiver of this requirement) before an
information can be filed. Thus, whatever
Fourth Amendment challenge might be mounted
against this provision of our statute in
circumstances where an information is not
accompanied by a judicial finding of probable
cause, Swarners extradition is nevertheless
proper.
Accordingly, I agree that the
superior court correctly rejected Swarners
habeas corpus petition and ordered his
extradition to Montana.
_______________________________
1 Montana Statutes 45-9-101 & 45-9-103, respectively.
2 820 P.2d 1098 (Alaska App. 1991).
3 Evans, 820 P.2d at 1100.
4 Id.
5 Id.
6 18 U.S.C. 3182 (2000).
7 651 P.2d 543 (Idaho App. 1982).
8 Hanson, 651 P.2d at 545.
9 Id. See also Innes v. Tobin, 240 U.S. 127, 133-35, 36 S.Ct.
290, 292, 60 L.Ed. 562 (1916); Glover v. State, 515 S.W.2d 641,
643 (Ark. 1974); Application of Morgan, 53 Cal.Rptr. 642, 647
(Cal. App. 1966); People ex rel. Dimas v. Shimp, 403 N.E.2d 750,
752 (Ill. App. 1980); In re Austin, 186 N.W.2d 723, 726 (Neb.
1971); State ex rel. Sieloff v. Golz, 258 N.W.2d 700, 703-04
(Wisc. 1977).
10 Hanson, 651 P.2d at 546. See also Ex parte Davis, 158 P.2d
36, 38-40 (Cal. App. 1945); Stark v. Livermore, 65 A.2d 625, 627
(N.J. App. 1949).
11 466 F.2d 765 (7th Cir. 1972).
12 Salazar, 466 F.2d at 766-67.
13 514 P.2d 12 (Alaska 1973).
14 Moser, 514 P.2d at 13 n.3.
15 557 P.2d 774 (Alaska 1976).
16 Montague, 557 P.2d at 776-77 (quoting Innes, 240 U.S. at 134-
35, 36 S.Ct. at 292).
1 Evans, 820 P.2d at 1100.
2 Id.
3 Evans, 820 P.2d at 1100-01, citing Montana Statutes 46-11-
101 and 46-11-201.
4 Evans, 820 P.2d at 1101, citing Sollinger v. McNeel, 656
P.2d 701 (Colo. 1983), Christopher v. Cronin, 564 P.2d 424 (Colo.
1977), and In re Moore, 313 N.E.2d 893, 895-96 (Mass. App. 1974).
See also In re Graziani, 591 A.2d 91, 93-94 (Vt. 1991).
5 See Videan v. State, 194 P.2d 615, 618-620 (Idaho 1948);
People ex rel. Lipshitz v. Bessenger, 75 N.Y.S.2d 392, 395-96
(N.Y. App. 1947).
