In Evans v. State, 820 P.2d 1098 (Alaska App. 1991), this Court confronted a case very much like Swarner's. The State of Montana sought extradition of the defendant, and Montana's 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 Swarner's 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 Swarner's 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 *Page 28 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 Alaska's 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 Court's 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 Swarner's case (as was true in Evans), this potential constitutional infirmity in the "information" clause of AS12.70.020(a) is moot because Montana law clearly requires a judicial finding of probable cause (or the defendant's 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, Swarner's extradition is nevertheless proper.
Accordingly, I agree that the superior court correctly rejected Swarner's habeas corpus petition and ordered his extradition to Montana.