dissenting.
This appeal illustrates a tension between result orientation and process orientation in the administration of criminal justice. The majority opinion achieves a desirable result by upholding the conviction of a person admittedly guilty of an Idaho offense. But the majority reaches this result by overriding fundamental concerns about due process and the proper functioning of our interstate extradition system. Because I believe these concerns are entitled to greater weight than the majority gives them, I respectfully dissent.
It is important to understand the unique circumstances presented here. This is not a case where a state has found a fugitive within its borders and has brought him to justice. This is a case where the state has seized a person already in custody while he was being transported to another jurisdiction. It will be recalled that Wesley Bamhouse was detained in Oregon after authorities there were notified of criminal charges pending against him in Idaho and Montana. Bamhouse insisted upon extradition by Idaho, but he waived extradition by Montana. The prosecutor in Idaho notified the Oregon authorities that Idaho would defer extradition proceedings and would allow Bamhouse to be transported to Montana. The transportation route from Oregon to Montana ran through Idaho. As Bamhouse, while still in custody, was passing through Idaho on his way to Montana, he was seized. Despite the prosecutor’s prior assurance, Bamhouse was held to answer for the Idaho offense.1
The issue framed by these facts is simply stated. Did the seizure in Idaho circumvent, and therefore abridge, Bamhouse’s right to due process in extradition? The majority opinion does not directly answer this question. Rather, the majority narrows the inquiry to one of district court jurisdiction. Then, relying upon the rule that jurisdiction is not defeated by the manner in which an accused person is brought before a court, the majority rejects Bamhouse’s complaint that he has been unfairly treated.2
The majority’s decision is consistent with Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), and Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). However, I think the time has come to break out of the rigid jurisdictional mold forged by Ker and Frisbie. It is time to recognize that due process rights of accused persons, and state interests in comity, are impaired when the orderly processes of interstate extradition are disrupted or evaded.
Forcing a person to appear in another state and to answer criminal charges there is a significant intrusion upon a liberty interest. For that reason the accused person is entitled to challenge extradition proceedings brought against him. In this case, if Idaho had demanded extradition *679from Oregon, Bamhouse could have challenged any procedural defect in the demand. Absent executive action upon a valid demand, Oregon authorities could not have delivered Bamhouse to Idaho. Because due process requires strict observance of proper demand requirements, the United States Supreme Court has held that habeas corpus is available to an accused person who challenges his custody pending extradition. Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885) (federal habeas corpus); Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121 (1900) (state habeas corpus). See generally Note, Extradition Habeas Corpus, 74 YALE L.J. 78, 89 n. 46 (1964).
The state and federal statutes governing extradition similarly recognize an accused person’s right to challenge an improper demand. Idaho Code § 19-4510 is typical:
No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he has been informed of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand legal counsel; and if the prisoner, his friends, or counsel shall state that he or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before a judge of a court of record in this state, who shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. And when such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the public prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
The accused person may petition for habeas corpus on numerous grounds. He may allege that the extradition papers are not in order; that the charge is inadequate to support extradition, or is insubstantial; that he is not the person named in the extradition papers; or that he is not a fugitive because he was not present in the demanding state at the time of the alleged offense. Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978). The petitioner also may be entitled to a finding of probable cause for his arrest in the asylum state. Id. (Blackmun, J., concurring).3
Here, Bamhouse effectively was denied an opportunity to make any such challenge to improper extradition. The extradition process was entirely avoided. The State of Idaho simply took raw advantage of the fact that Bamhouse was physically present within its boundaries, albeit in custody and en route to Montana. We should not condone this deprivation of due process and circumvention of the interstate extradition system.4
I do not advocate wholly setting aside the general rule that a court has jurisdiction regardless of the means employed to secure the defendant’s presence. However, I do suggest, as a corollary to the rule, that a court may decline to exercise its jurisdiction when the defendant’s appearance has been produced by means inconsistent with fundamental fairness and comity in the extradition process. The district court should have declined to exercise jurisdiction in this case. Had it done so, Bamhouse would have been released for continued transit to Montana, and Idaho *680later could have resecured his presence by proper extradition. The modest time and expense consumed by this procedure would have been a small price to pay for vindicating the integrity of our criminal justice system.
It is not too late to remedy the district court’s error. The record indicates that Barnhouse now is in Montana, having been sent there after the Idaho court pronounced sentence. The Idaho judgment recites “that the defendant shall receive credit for the time served in the Clearwater County jail, and all time served in the State of Montana subsequent to the date of sentencing in this matter.” If the Idaho judgment were set aside, Barnhouse could be extradited. If he were convicted again, he could receive similar credit in the sentence then imposed. However, by refusing to disturb the present judgment, the majority today places greater value upon perpetuating a result than upon preserving the fairness of the system. Its decision undermines due process and sends an unfortunate message to sister states who depend upon Idaho’s cooperation for orderly extradition and interstate transportation of persons in custody.
. The majority obliquely challenges this summa- ' ry of the facts by asserting that Bamhouse was not " ‘seized’ while in the custody of either Oregon or Montana authorities." I find it clear beyond cavil that a seizure occurred. Barn-house was arrested in Idaho, jailed and prevented from leaving the state. What the majority may be suggesting is that Idaho law enforcement officers, rather than officers from Oregon or Montana, had physical custody of Bamhouse at the time of the seizure. But if Idaho officers had such physical custody, they obtained it — as explained by the prosfecutor — only because Idaho is a party to a mutual assistance agreement ■ for transporting persons “from one state to another.” Idaho’s apparent deviation from that agreement in this case hardly strengthens the majority’s analysis. Rather, it underscores the concerns expressed in this dissenting opinion.
. The majority also questions Barnhouse’s standing to complain about mistreatment in Idaho when the State of Montana has acquiesced in Idaho’s action. The majority seems to believe that proper extradition is solely a matter of state interest, not a matter of individual right. For reasons set forth infra, I think it is both. Moreover, analogous concerns about individual due process and comity among the states have long been recognized to overlap in civil cases where personal jurisdiction is at issue. Eg., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
. At least one court has taken an additional step, holding that an accused person extradited from another state may challenge the validity of his arrest upon return to the demanding state. State ex rel. Lutchin v. County Court, 42 Wis.2d 78, 165 N.W.2d 593 (1969). Although that holding is not apposite here, it illustrates the growing importance of due process in extradition cases.
. The taint of Barnhouse's improper seizure has not been removed by his subsequent plea of guilty. That plea was entered conditionally, preserving the issue now before us. Consequently, this case does not fall within a rule, announced by some courts, that trial and conviction in the demanding jurisdiction ordinarily cures any defects in an improper extradition. E.g., Campbell v. Smith, 308 F.Supp. 796 (S.D.Ga.1970).