People v. Moreno ( 1971 )

Mr. Justice Groves

specially concurring:

The majority opinion suggests that probable cause need not be demonstrated for a capias or arrest warrant issued under an information, and gives as the reason that “Crim. P. 7(b)(3) permits the filing of a direct information and leaves the determination of probable cause to the preliminary hearing. Crim. P. 7(g)(1).” In Colorado there can be a determination of probable cause at a preliminary hearing conducted following arrest under a complaint-based warrant as speedily and effectively as the preliminary hearing conducted under an arrest made by reason of an information. Crim. P. 5. If a showing of probable cause must be made in the complaint beyond a recitation of the statute allegedly violated, then the same showing must be made in the information. There simply is no logical distinction in this respect. Conversely, if this additional showing of probable cause can be supplied as to the information by a preliminary hearing, the same cure can be effected with respect to the complaint.

I favor a rule following the view of the remedial effect of the preliminary hearing. However, I find no escape from Whiteley, supra. Believing that the rule of Whiteley constitutes an unnecessary impediment upon law enforcement, I can only hope that the United States Supreme Court reconsiders the Whiteley rule, and disaffirms or modifies it.

Mr. Justice Kelley joins in this concurring opinion.