In his Federal Complaint, Hirsch does mention that he received citations for some traffic related misdemeanors and was arrested without a warrant for the misdemeanor weapons charge.
THAT REED ended his custodial interrogation of plaintiff and custodially arrested him without a warrant for an alleged weapons charge and cited him for some other alleged transportation misdemeanors.
That adds a different angle to the story and explains why Reed arrested Hirsch. However, Reed did present his affidavit of complaint to the Judge who set bail. Since there was no arrest warrant it sounds as if he was released on a citation after custodial arrest. If that’s the case, then rule 5 does no longer apply.
Reed’s response suggests that he did also write a citation for the weapons charge but does not explain why he arrested Hirsch.
Rule 3.5 in pertinent part states, “The use of citations in misdemeanor arrests is as provided by law.” There are no allegations that the citations were unlawful. Thus, since citations were issued, the exception to Rule 5 applies, and there was no requirement under that Rule for plaintiff to be brought before a neutral magistrate.
Furthermore, even if plaintiff were correct, the issue is moot. If there were no presentation before a neutral magistrate, then the relief would be to dismiss the warrant. In this case, indictments have issued against plaintiff, which indictments supersede the warrant.
There is a confusing use of terms such as citation, warrant etc which make it hard to figure out what exactly happened.
I can understand why Hirsch believes that he was given a ‘raw deal’ as the citations, arrest and bail appear to be atypical.
So far the evidence shows that Hirsch did receive his 72 hr probable cause hearing, and that the arresting officer presented the Affidavit of Complaint after a warrantless arrest to the Judge who ‘signed it’. Given that no arrest warrant was issued, it sounds as if she granted release on citation, which is one of the three possible outcomes.
Was Hirsch entitled to another hearing and was the preliminary examination not scheduled in accordance with Rule 5?
An Alaska case Riney v. State 935 P.2d 828 (1997
Riney’s claim under Alaska Criminal Rule 5(a)(1). Riney also argues that the police violated state law when they took him to the police station before taking him to the courthouse for his first appearance in front of a magistrate. Riney relies on Alaska Criminal Rule 5(a)(1):
Except [for persons who are issued a citation and immediately released], [an] arrested person shall be taken before the nearest available judge or magistrate without unnecessary delay…. Unnecessary delay … is defined as a period not to exceed twenty-four hours after arrest[.]