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United States v. Randolph

United States District Court, M.D. Alabama, Southern Division

January 10, 2017

UNITED STATES OF AMERICA
v.
DANNY E. RANDOLPH

          ORDER

          Susan Russ Walker Chief United States Magistrate Judge

         This case is before the court on a Central Violations Bureau (“CVB”) notice[1] served on defendant Danny Randolph, charging him with a violation of 32 CFR §634.25(c)(3), [2] a petty offense. The violation allegedly occurred at Fort Rucker, a U.S. Army post located mostly in Dale County, Alabama, on August 31, 2016. According to the notice, Randolph was charged by Officer Howell with “cell phone.” Defendant failed to appear before the undersigned on November 15, 2016, to answer the charge against him, and the government moved for an arrest warrant.

         The CVB notice includes a section on the back entitled “Statement of Probable Cause (For issuance of arrest warrant or summons).” The ticketing officer ordinarily fills out this section and signs it, declaring under penalty of perjury “that the information which I have set forth above and on the face of this violation notice is true and correct to the best of my knowledge.” Below the statement of probable cause and officer's signature is a space for the signature of the presiding U.S. Magistrate Judge. The judge signs and dates the notice if he or she determines that probable cause has been stated for the issuance of a warrant.

         Fed. R. Crim. P. 58(b)(1) provides that the prosecution of a petty offense may “proceed on a citation or violation notice.” Fed. R. Crim. P. 58(b)(1). As another federal district court in this state has noted, “Rule 58 … indicates that the charging document for a petty offense need not meet all formal requirements that must be present for the issuance of an indictment, information, or complaint. However, Rule 58 also indicates that the notice of violation must show ‘probable cause to believe that an offense has been committed and that the defendant has committed it ... made under oath or under penalty of perjury.'” Sutton v. United States, 2016 WL 1459049, at *1 (N.D. Ala. 2016) (citing Fed. R. Crim. P. 58(d)(3)).

         “It is black letter law that a charging document, like a complaint or CVB notice, must set forth sufficient verified facts to support a judicial finding that probable cause exists to believe a crime has been committed and the defendant committed it.” United States v. Thomas, 2013 WL 5783408, at *1 (D. Ariz. 2013) (citing the Warrant Clause of the Fourth Amendment; U.S. Const. amend. IV; and Rules 4, 5, 9(a) and 58(d)(3), Fed.R.Crim.P.). “If probable cause does not exist, the complaint or CVB notice must be dismissed.” Id. (citing United States v. Hicks, 2009 WL 256419 (D. Mont. 2009) (because the violation notice did not set forth facts constituting an offense, the violation notice was dismissed)).

         In the instant case, Officer Howell's statement of probable cause on the back of the CVB notice reads, in its entirety, as follows:[3]

I state that on 31 Aug 2016, while exercising my duties as a law enforcement officer in the Middle District of Alabama
- unmarked traffic car
- from Novosel to Shoppett [sic] ¶ 5700
- cell phone in righ [sic] hand by stering [sic] wheel
- Did not want to give me his documents @ first
- 40 min on traffic stop
- He was not happy that I wanted his documents & he wanted to talk about what had happened before he gave me his Documents
- He said that he was coneting [sic] his blue tuth [sic] to his vehicle & setting up his ...

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