Rule 4A. Probable Cause Determination Upon Warrantless Arrest for Any Crime

(a) Timing: Required Findings. Except in a bona fide emergency or other extraordinary circumstance, when a defendant arrested without a warrant for any crime is not released from custody within 48 hours after arrest, including Saturdays, Sundays, and legal holidays, the court or justice of the peace shall determine, within that time period, whether there is probable cause to believe that a crime has been committed and that the arrested defendant has committed it. If the evidence does not establish such probable cause, the court or justice of the peace shall discharge the arrested defendant. If a probable cause determination has not taken place within 36 hours after the arrest, including Saturdays, Sundays, and legal holidays, the custodian shall notify the attorney for the State of the upcoming deadline. For purposes of this Rule "custody" means incarceration. Rule 45(a) and (b) have no application to this subdivision.

(b) Evidence. In making this determination the court or justice of the peace shall consider:

(1) the sworn complaint;

(2) an affidavit or affidavits, if any, filed by the State;

(3) a sworn oral statement or statements, if any, made before the court or justice of the peace that is reduced to writing or electronically recorded by equipment that is capable of providing a record adequate for purposes of review. The court or justice of the peace may administer the oath and receive an oral statement by telephone.

(c) Record. A finding that probable cause does or does not exist shall be endorsed on the complaint or other appropriate document and filed together with the sworn complaint, affidavit(s), or other written or recorded record with the clerk of the Unified Criminal Docket having jurisdiction of the crime for which the arrested defendant is charged.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 4A of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (a) and (b) the word "court" replaces the words "a Superior Court justice, a District Court judge." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 57(d). Second, in subdivision (a) the letter "s" in the word "state" is capitalized because the word is used in the term "attorney for the State." See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Third, in subdivision (b) the letter "s" in the word "state" is capitalized because it is referring to the "State" as a party. Fourth, in subdivisions (a) and (c) the word "defendant" replaces the word "person" to make the Rule internally consistent and with the other new Rules. See e.g., Rules 4 and 5. Fifth, in subdivision (b)(3) the word "that" replaces the word "which" to reflect modern usage. Sixth, in subdivision (c) the words "Unified Criminal Docket" are added after the word "the" and before the word "having" for purposes of clarity.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1998 [ M.R. Crim. P. 4A.] This rule is newly created to incorporate the provisions of former Rule 5(d). Separate reference to the probable cause determination under former Rule 5(d) is necessary because it oftentimes is not part of the Rule 5 initial appearance proceeding and because it eliminates confusing references to two different 48 hour deadlines in Rule 5, one exclusive of weekends and holidays and one inclusive of weekends and holidays. Finally, two modifications have been made to former 5(d) to better address County of Riverside v. McLaughlin , 500 U.S. 44 (1991). First, the rule expressly recognizes that postponement of a probable cause determination beyond 48 hours of arrest can be appropriate in a particular case in a bona fide emergency or other extraordinary circumstance. Second, the rule requires that if a determination of probable cause has not taken place within 36 hours, the custodian must notify the attorney for the State. Within the next 12-hour period, the attorney for the State can both assess the situation and provide proper guidance to the custodian.

Advisory Committee Note – March 2005 [ M.R. Crim. P. 4A(a) and (b).] The amendments add "a Superior Court justice" to the list of those judicial officers responsible for conducting probable cause determinations to comply with County of Riverside v. McLaughlin , 500 U.S. 44 (1991). The addition is in recognition that cases involving a Class C or above crime (accompanied or unaccompanied by related Class D or Class E crimes) will now be initiated in the Superior Court rather than the District Court. See also Advisory Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Note – June 2006 M.R. Crim. P. 4A. The amendment does five things. First, it adds the words "for any crime" to the Rule heading and to the first sentence of subdivision (a) to make clear that the post-arrest probable cause determination required under County of Riverside v. McLaughlin , 500 U.S. 44 (1991) applies to a warrantless arrest for any crime, misdemeanor and felony alike. Second, it replaces the word "defendant" in subdivision (a) with the words "arrested person" to better identify the person's actual status. For the same purpose, the word "arrested" has been added in subdivision (c). Third, it makes clear that neither subdivision (a) nor subdivision (b) of Rule 45 have application to subdivision (a). Fourth, it redesignates paragraphs (i), (ii) and (iii) in subdivision (b) to be paragraphs (1), (2) and (3) respectively. The latter redesignations reflect the standard division designation for paragraphs found throughout the Maine Rules of Criminal Procedure. Fifth, it replaces the term "offense" with the term "crime" in subdivision (c). This reference was overlooked when a similar reference in subdivision (a) was replaced with "crime" effective January 1, 2004. See Me. Rptr . , 832-845 A.2d XLIX, LII.

Advisory Note – July 2012 See Advisory Note – July 2012 to M.R. Crim. P. 5(b) and (c). See also

Advisory Note – July 2012 to M.R. Crim. P. 5C(b) and (d). [Because the purpose and requirements of Rule 4A and practice in implementing Rule 4A are addressed in Rule 4A and the Advisory Notes to the recent amendments, no additional comments are provided at this time. Standards for determination of probable cause are addressed in Comments to Rule 41A.]