A USMJ has the legal authority to dismiss a criminal complaint for lack of probable cause after having signed off on it in the first place. Here, however, there was probable cause as defendant was arrested in a grow house in the Bronx. United States v. Coiscou, 793 F. Supp. 2d 680 (S.D. N.Y. 2011):<\/p>\n
I find the Tejada court\u2019s reasoning more persuasive and conclude that a magistrate judge has the authority to dismiss a complaint for lack of probable cause at or after an initial appearance. I see little difference between dismissing a complaint for lack of probable cause at a preliminary hearing\u2014as a magistrate judge must under Rule 5.1(f)\u2014and dismissing the complaint at some point during or after an initial appearance but before a probable cause determination at such a hearing has been made. Someone being denied his liberty on an insufficient complaint should not have to wait to be released, even for the relatively short period of time until a preliminary hearing takes place. As Coiscou correctly notes, \u201c[a] complaint that does not establish probable cause is \u2018invalid.\u2019\u201d Def.\u2019s Letter at 2 (quoting Hollingsworth v. United States, 321 F.2d 342, 348 (10th Cir. 1963)).<\/p>\n
Further, the fact that a magistrate judge\u2014here, the undersigned\u2014may have taken the agent\u2019s oath and signed the complaint as required by Rule 3 and thus made an initial determination that probable cause exists as required by Rule 4 does not mean that the same or another magistrate judge may not later reach a different conclusion as to probable cause as legal arguments are presented in the adversarial process. Indeed, that is exactly what is contemplated by Rule 5.1(f). This is particularly so because, when the complaint is filed, \u201c[t]he criminal process is still in the investigative stage, and \u2018the adverse positions of government and defendant\u2019 have yet to solidify.\u201d United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006) (quoting United States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984)). Thus, the filing of a complaint \u201ccan no more be characterized as \u2018the initiation of adversary judicial proceedings against the defendant,\u2019 than can the filing of an affidavit in support of a search warrant.\u201d Id. (quoting Gouveia, 467 U.S. at 187); see also United States v. Stein, 541 F.3d 130, 152 (2d Cir. 2008) (\u201cThe Supreme Court has \u2018pegged commencement of a prosecution to the initiation of adversary judicial criminal proceedings\u2014whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.\u2019\u201d (alterations omitted) (quoting Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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