ILLEGAL DETAINMENT AND DUE PROCESS
VIOLATIONS
Following the unlawful arrest on March 13, 2000, Hogan was not brought
before a court or magistrate
for initial appearance and for judicial
advisement until after approximately five months, [i.e.143 days]. During this period of unnecessary delay, Hogan was without knowledge
of the alleged charges against him, and without legal representation.
Criminal Procedures Rule 5(a)(l) states:
"Procedure Following
Arrest: If peace officer or any other person makes an arrest,
either with or without a warrant, the arrested person
shall be taken without unnecessary delay before the nearest available
county or district
court ... "
The procedural requirement of Crim.P. Rule 5(a)(1)(2) is foundational to an accused party's rights,
as it is related to the very essence of Due Process
and the preventions of undue prejudice and equal protection of the law, all of which are substantive in nature and substance.
In order to prevent prejudice justifying
relief, a person
arrested must be taken before a county judge within a reasonable
time and without
unnecessary delay. This period is usually within 48 hours of arrest.
A "necessary delay" is one reasonably
related to the administrative process
attendant upon the arrest of the accused, viz., delays
associated with fingerprinting, photographing, taking inventory
of personal belongings, preparation of necessary charging
documents and reports,
and other legitimate administrative procedures.
In this case, Mr., Hogan remained unjustifiably detained for five months without an official
advisement of charges,
extending well over the "48
hour" rule established in People v. Garcia,
746 P.2d 560. This unauthorized abuse of legal procedures
resulted in many irreparable prejudices.
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