Dissenting Opinion
DeBruler, J.The record of the proceeding before us in this appeal, in addition to presenting the evidence and proceedings in the trial court below, reflects the content of the proceedings held in the Ohio court, before the Ohio Governor, and before the Indiana Governor. The record establishes the following:
1. Appellant was charged in the Ohio court by affidavit rather than by indictment.
2. No order, determination, or assessment was made by the Ohio judge, Ohio Governor, or the Indiana Governor, which purports to find the existence of probable cause to believe appellant is the person who committed the crime of theft involved.
8. No facts were presented to the Ohio judge, Ohio Governor, Indiana Governor, Indiana habeas judge, or even to this Court which would support a determination of probable cause in accordance with federal constitutional standards.
This record was made by appellant in support of his claim that his arrest and detention upon the extradition warrant issued by the Governor of Indiana is unlawful, in that such *457warrant was issued in contravention of the requirements of the Fourth and Fourteenth Amendments to the United States Constitution.
Appellant contends that the Fourth Amendment requires that an extradition warrant, issued by the Governor of an asylum state upon demand of the chief executive of a sister state, pursuant to the provisions of the Uniform Criminal Extradition Act, IC 1971, 35-4-3-1 through 35-4-3-31, being Burns §§ 9-419 through 9-448, be preceded by a determination of probable cause. Appellant argues that the record in the trial court demonstrates the absence of such a determination and that therefore his restraint upon the extradition warrant is unlawful, and as a result he was entitled to a judgment of discharge from the court below. I believe appellant’s position is sound under the law and the record in this case.
Appellant relies heavily upon the reasoning of the case of Kirkland v. Preston, 385 F. 2d 670 (D. C. Cir. 1967). That court held in part that an arrest upon an extradition warrant is a criminal arrest and controlled by the Fourth Amendment. Such an arrest is for the purpose of procuring the body of the arrested person before a tribunal to answer to criminal charges. Such persons are placed in jail and are deprived of liberty in the same manner as others arrested on outright criminal warrants. There is no reason to exempt extradition warrants from the proscriptions of the Fouth Amendment. I agree that the issuance of extradition warrants is governed by the Fourth Amendment. Haney v. State (1955), 77 Ida. 166, 289 P. 2d 945. As such they are subject to the same requirements as ordinary arrests warrants are. In Kinnaird v. State (1968), 251 Ind. 506, 242 N. E. 2d 500, we set the requirements for the issuance of valid arrest warrants. In that case we said:
“We only hold that where, as here, an arrest is required to be made on a warrant that warrant can only issue on the basis of an affidavit setting forth facts and circumstances constituting probable cause, and that the deter*458mination of probable cause must be made by a ‘neutral and detached magistrate.’ ” 251 Ind. at 517.
In so holding we applied the constitutional standards for probable cause mandated by the Fourth Amendment. Aguilar v. Texas (1963), 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Giordenello v. U.S. (1958), 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1502. Those same standards governed the constitutional validity of an arrest warrant in Indiana and Ohio throughout these proceedings. Beck v. Ohio (1964), 376 U.S. 905, 84 S. Ct. 664, 11 L. Ed. 2d 604. Since the record before our habeas judge clearly established that no determination of probable cause was made by any judge or any other official who might qualify as a neutral and detached magistrate, prior to the issuance of the extradition warrant by the Governor of this State, or at any other time for that matter, appellant was entitled to a judgment of discharge from custody.
Turning next to the documents presented to the Governor of Indiana, it is obvious that they cannot afford a basis for any probable cause determination. The charging affidavit, couched simply in conclusory language, does not constitute grounds for determining probable cause. Kinnaird v. State, supra. The factual affidavits of the prosecutor and the owner of the car allegedly stolen, when taken collectively do show knowledge of facts constituting the corpus delicti of the offense of car theft. However, neither alleged any facts known either personally or upon credible hearsay, that the appellant was in any way connected with the theft. The owner of the stolen car, after describing the loss of his car, states: “Affiant further states that he believes that the person taking said automobile was John Bailey, Jr., a man known to him.” This affidavit cannot satisfy federal constitutional requirements. Nathanson v. U.S. (1933), 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159; Jones v. U.S. (1960), 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 697.
Finally, I would say that there is no conflict between the requirements of Art. IV, § 2, cl. 2, of the United States Con*459stitution, and the requirements of the Fourth Amendment. Neither impinges upon the other. They are in harmony. A person is not charged by affidavit under Art. IV, § 2, cl. 2 until an arrest warrant is issued. Kirkland v. Preston, supra. The Fourth Amendment governs the issuance of an arrest warrant. So construed they serve to supplement one another.
The judgment of the trial court should be reversed and a judgment for appellant should be ordered.
Prentice, J., concurs.
Note.—Reported in 296 N. E. 2d 422.