Illegal Detainment and Due Process Violotations

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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