against the defendant is filed in district
court before the date set for the pre-
liminary examination. With the consent of
the defendant and upon a showing of good
cause, taking into account the public
interest in the prompt disposition of
criminal cases, time limits specified in
this subdivision may be extended one or
more times by a federal magistrate. In
the absence of such consent by the de-
fendant, time limits may be extended by a
judge of the United States only upon a
showing that extraordinary circumstances
exist and that delay is indispensable to
the interests of justice.

Fed. R. Crim. Pro. 5. In addition, Rule 5.1 provides:

PRELIMINARY EXAMINATION

If

(a) Probable Cause of Finding. from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the federal magistrate shall forthwith hold him to answer in district court. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12.

(b) Discharge of Defendant. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the federal magistrate shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.

(c) Records. After concluding the proceeding the federal magistrate shall transmit forthwith to the clerk of the district court all papers in the proceeding. The magistrate shall promptly

make or cause to be made a record or
summary of such proceeding.

(1) On timely application to a

federal magistrate, the attorney for a
defendant in a criminal case may be given
the opportunity to have the recording of
the hearing on preliminary examination
made available for his information in
connection with any further hearing or in
connection with his preparation for trial.
The court may, by local rule, appoint the
place for an define the conditions under
which such opportunity may be afforded
counsel.

(2) On application of a defendant
addressed to the court or any judge
thereof, an order may issue that the
federal magistrate make available a copy
of the transcript, or of a portion
thereof, to defense counsel. Such order
shall provide for prepayment of costs of
such transcript by the defendant unless
the defendant makes a sufficient affidavit
that he is unable to pay or to give secur-
ity therefor, in which case the expense
shall be paid by the Director of the
Administrative Office of the United States
Courts from available appropriated funds.
Counsel for the government may move also
that a copy of the transcript, in whole or
in part, be made available to it, for good
cause shown, and an order may be entered
granting such motion in whole or in part,
on appropriate terms, except that the
government need not prepay costs nor
furnish security therefor.

Fed. R. Crim. Pro. 5.1. The analogy to Rule 5 was specifi-
cally recognized by the Senate and House Judiciary Committees.
See Senate Judiciary Report on S. 1940, supra note 15, at 8;
House Judiciary Report on H.R. 6046, supra note 23, at 16.

148. See McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1954); Fed. R. Crim. P. 5. Title II of the Omnibus Crime Control Act and Safe Streets Act of 1968, 18 U.S.C. S 3501 (1976), purports to repeal the McNabb-Mallory rule; in light of Miranda v.

Arizona, 384 U.S..436 (1966), however, the constitutional effect of this repeal is questionable.

The Senate Judiciary Report noted that this subsection "is not intended to require the dismissal of the extradition proceedings solely on the ground that the fugitive arrested for extradition was taken without unnecessary delay before a judge or magistrate later determined not to be the 'nearest' one."

8.

Senate Judiciary Report on S. 1940, supra note 15, at

149. Probable cause for arrest in an extradition proceeding is required according to the statement in Collins v. Loisel, 259 U.S. 309 (1925), that the magistrate is to determine whether or not there is "competent legal evidence which, according to the law of [the state wherein the relator is found], would justify his apprehension and commitment for trial if the crime had been committed in that state." Id. at 315 (emphasis added).

150. Caltagirone v. Grant, 629 F.2d 739, 742 (2d Cir. 1980). See Valencia v. Limbs, 655 F.2d 195, 196 (9th Cir. 1981); Hu Yau-Leung v. Soscia, 649 F.2d 914, 915 (2d Cir. 1981); Antines v. Vance, 640 F.2d 3, 4 (4th Cir. 1981); Greci v. Birkeness, 527 F.2d 956 (1st Cir. 1976).

151. S. 220, supra note 7, $§ 3192 (b) (1); S. 1940, supra note 5, $ 3192 (b) (1); S. 1639, supra note 1, § 3192 (b) (1); H.R. 2643, supra note 8, § 3192 (b)(2), (b)(4)(B); H.R. 6046, supra note 5, § 3192 (b)(2), (b)(4) (A); H.R. 5227, supra note 2, § 3192 (b)(2), (b)(4) (A).

30-993 0-84--21

152. United States v. Johnson, 323 U.S. 273, 276 (1944); Blanchette v. Connecticut General Ins. Corp., 419 U.S. 102,

134 (1974).

153. In full, U.S. Const., Amend. IV provides:

The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, and no
Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly describing the place to
be searched, and the persons or things to
be seized.

154. See 28 U.S.c. $ 1782 (a) (1976) ("A person may not

be compelled to give his testimony or statement or to produce

a document or other thing in violation of any legally applica

ble privilege.").

155. Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975), quoting from, Beck v. Ohio, 379 U.S. 89, 91 (1964). 156. Spinelli v. United States, 393 U.S. 410, 418

(1969).

157.

Id. at 413 n. 3; Aguilar v. Texas, 378 U.S. 108, 109 n. 1 (1964). Of course, the probable cause standard for arrest warrants is the same as for search warrants. Aguilar v. Texas, 378 U.S. at 112 n. 3.

158. Other questions raised by the incorporation of Fourth Amendment probable cause in extradition arrest procedures are considered in relation to the showing of probable cause to extradite. See notes 269-92 and accompanying text

infra.

159. United States v. Toscanino, 500 F.2d 267, 280 (2d Cir. 1974) (alien may challenge legality of wiretap on fourth amendment grounds); Au Yi Lau v. Immigration and Naturalization Service, 445 F.2d 217, 223 (D.C. Cir. 1971) (in deportation proceeding, alien may challenge legality of arrest on fourth amendment grounds).

160. See S. 220, supra note 7, § 3196(a); S. 1940, supra note 5, $ 3196(a); S. 1639, supra note 1, § 3196(a); H.R. 2643, supra note 8, § 3196 (a); H.R. 6046, supra note 5, S 3196 (a); H.R. 5227, supra note 7, § 3196 (a).

161.

Gerstein v. Pugh, 420 U.S. 103, 113 (1975); United States v. Watson, 423 U.S. 411, 423-24 (1976). Of course, warrants to enter the relator's home, or the home of another, are still necessary. See generally Payton v. New York, 445 U.S. 573 (1980); Steagald v. United States, 451 U.S. 204 (1981).

162. In Caltigirone v. Grant, 629 F.2d 739 (2d Cir. 1980), to mention just one example, the court noted that the relator had been held, without probable cause that he had committed any crime, 97 days from his arrest until the Second Circuit acted. Id. at 749.

1980).

163. See Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980). 164. See Caltagirone v. Grant, 629 F.2d 739 (2d Cir.

165. Caltagirone v. Grant, 629 F.2d 739, 742 (2d Cir. 1980). See Valencia v. Limbs, 655 F.2d 195, 196 (9th Cir. 1981); Hu Yau-Leung v. Soscia, 649 F.2d 914, 915 (2d Cir.