United States District Court, M.D. Alabama, Southern Division
Russ Walker Chief United States Magistrate Judge
case is before the court on a Central Violations Bureau
(“CVB”) notice served on defendant Danny Randolph,
charging him with a violation of 32 CFR §634.25(c)(3),
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.
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.
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.
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
instant case, Officer Howell's statement of probable
cause on the back of the CVB notice reads, in its entirety,
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
- He said that he was coneting [sic] his blue tuth [sic] to
his vehicle & setting up his ...