TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 3.1. First Appearance; Determination of Probable Cause for Detention
When Required. A person who is arrested subsequent to an in-game incident shall appear before a court of law if there is an on-duty state judge present in game, as 6 R. Stat. § 131.204 requires. The arresting officer shall bring that person before the court, and the court shall determine whether probable cause exists, without any request by and without the consent of the person arrested. No appearance is required under this subdivision where:
a warrant or other judicial process authorizes the person’s detention; or
a determination of probable cause has already been made under this rule upon the same arrest.
Advisement by the Arresting Officer. Where an on-duty state judge of a court having jurisdiction over the matter is present in game, the arresting officer shall inform the person that the person will be brought before that judge for a determination of whether the arrest is supported by probable cause, and shall inform the person that the burden of proof at that determination is lesser than proof beyond a reasonable doubt. The advisement is a duty of the officer; neither the giving nor the omission of it conditions the appearance required by subdivision (1).
Time.
The arresting officer shall bring the person before the court forthwith, and a person shall not be held awaiting the first appearance for a period exceeding ten (10) minutes from the arrest. Where the officer has brought the person before the court and no judge has received the matter within ten (10) minutes, the officer is authorized to complete the arrest, and the failure to hold the first appearance is not of itself a ground for release, for dismissal, or for suppression. This paragraph limits the period of detention before the appearance; it does not excuse the officer’s duty under subdivision (1), and an officer who has not brought the person before an available judge has not discharged that duty.
A first appearance shall not individually exceed five (5) minutes, unless the court for cause stated upon the record allows a longer period; but no extension of the detainment timer shall be granted for that purpose.
No judicial officer shall grant an extension of the detainment timer for the purpose of conducting, awaiting, or completing a first appearance.
Counsel. The court shall afford the person an opportunity to consult with defense counsel, and shall appoint a public defender or court-appointed counsel under Rule 8 where counsel can be appointed within the period fixed by subdivision (3)(a) of this rule. Where counsel cannot be appointed or consulted within that period, the appearance required by subdivision (1) shall nevertheless proceed, and the court shall enter upon the record that counsel was not available. This subdivision does not limit the right to counsel at any later stage, and the opportunity to consult with defense counsel required by 6 R. Stat. § 131.204(b)(a) before charges are filed is governed by Rule 7.2(1).
Hearing Process.
The determination shall be made by a Supreme Court Justice, Superior Court Judge, or magistrate judge.
The Affidavit Alone. The judicial officer shall review the affidavit submitted by the arresting officer, and may consider only that affidavit in making the determination, as 6 R. Stat. § 131.204(a)(2) requires. The affidavit shall state the charges and the facts relied upon in support of the arrest, and shall be made under oath or affirmation, or under the pains and penalties of perjury.
The arresting officer shall present the affidavit. Counsel for the person arrested may be heard upon the sufficiency of the affidavit. No evidence beyond the affidavit shall be received from any party, no rebuttal shall be made, and no statement shall be made by the person arrested absent a waiver of that person’s right to remain silent and to counsel.
The person shall not be arraigned nor sentenced at the first appearance, and no argument shall be entertained beyond that permitted by paragraph (c) of this subdivision. This paragraph does not preclude the arraignment held under Rule 7.2(3) upon charges filed after the first appearance.
Standard. Probable cause exists when the facts and circumstances known to the arresting officer are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed by the person to be arrested. The standard is assessed under the totality of the circumstances and is objective in nature, as 6 R. Stat. § 131.204(a)(1) provides. It is the same standard as governs the issuance of an arrest warrant, and it is not the standard governing a bind-over under Rule 7.2(7).
Disposition.
Probable Cause Found. Where the judicial officer finds that probable cause exists to believe the person committed the alleged offense, the judicial officer shall enter that determination upon the record. The matter thereafter proceeds as Rule 7.2 provides.
Probable Cause Not Found. Where the judicial officer finds that the arrest lacks probable cause, the judicial officer shall order the person released from custody forthwith and shall expunge the arrest from the person’s record, as 6 R. Stat. § 131.204(a)(3) requires.
How the Expungement Issues. The expungement is ordered by the court upon its own determination. The judicial officer shall access the expungement program and select the arrest record to be dismissed from the public record, in the manner Rule 38(3) prescribes for the issuance of an expungement, and shall enter the order through the duty court workflow. Where the expungement program requires a matter in which to record the order, the clerk shall open an expungement matter for that purpose, which is a matter of the kind Rule 36(13)(c) describes.
No Petition; No Class; No Condition. No petition under Rule 36 is required, no class under Rule 36(6) applies, no waiting period applies, no condition of community service under Rule 38(4) shall be imposed, and no motion of the Attorney General under Rule 38.2 is required. Rule 38(4) does not apply to an expungement issued under this paragraph.
Contents of the Order. The order shall state the username of the person, the arrest expunged with its date and time, and the ground of the expungement.
Limits of the Determination. Except as subdivision (7)(b) requires, the court shall make no determination with regard to the sentencing or arrest timer of the person arrested. An order of release entered under subdivision (7)(b) is not a determination of the timer; it terminates the custody the arrest occasioned, and the Department of Corrections shall release the person upon it. Where the court holds a person in direct criminal contempt at the first appearance, it shall set forth the timer of that person for the criminal contempt only, as Rule 43(7)(e) provides.
Record. The determination, the charges presented, and the affidavit shall be entered by law enforcement through the duty court workflow of the electronic filing system. The entry is not made through the general filing channel and is not subject to clerk review. Where probable cause is found and the State files charges, the matter proceeds to a charging referral under Rule 3.2 and to arraignment under Rule 7.2. Where probable cause is not found, the court shall enter its determination and the order required by subdivision (7)(b) upon the same record. The expungement ordered under subdivision (7)(b) operates upon the person’s criminal history record in the expungement program and upon nothing else. It does not remove, seal, redact, restrict, or alter the entry made under this subdivision, the affidavit, or any other filing or docket entry of the electronic filing system, as Rule 38(6)(d) and Rule 36(14)(c) provide, nor the expungement matter opened under subdivision (7)(b)(i), which is public under Rule 36(13).
Effect. A finding of probable cause under this rule authorizes continued detention and booking. It is not a conviction, is not an accusatory instrument, and does not of itself commence a criminal proceeding. Where the person is released from custody, the court may use its finding under this rule to summon that person again upon a subsequent accusatory instrument, as 6 R. Stat. § 131.204(b)(a)(2)(A) permits and Rule 7.2(2)(b) provides.