text:
    HARRIS COUNTY COMMISSIONERS COURT et al. v. MOORE et al.
    No. 73-1475.
    Argued November 11, 1974
    Decided February 18, 1975

      Edward J. Landry argued the cause for appellants. With him on the brief were Joe Resweber and Michael R. Davis.

      John G. Gilleland argued the cause for appellees Moore et al. With him on the brief was Virgil H. Bar-field. C. Anthony Friloux, Jr., argued the cause and filed a brief for appellee Zaboroski.
   Opinion of the Court by

Mr. Justice Marshall,

announced by Mr. Chief Justice Burger.

The appellees brought this action to challenge a plan redistricting the justice of the peace precincts in Harris County, Tex. Because the plan provided for consolidation of several precincts, three justices of the peace and two constables lost their jobs. These five officials, along with two voters from the defunct precincts, sought to enjoin implementation of the redistricting plan on the ground that the Texas statute providing for their removal from office at the time of redistricting denied them the equal protection of the laws. The three-judge District Court granted relief, declaring the statute unconstitutional and enjoining the redistricting. The order of the District Court was stayed by Mr. Justice Powell. We denied a motion to vacate the stay, 415 U. S. 905 (1974), and subsequently noted probable jurisdiction, 417 U. S. 928 (1974). We reverse and remand to the District Court with instructions to dismiss the complaint without prejudice.

I

Under Texas law, the Commissioners Court is the general governing body of each county; one of its duties is to divide the county into precincts for the election of justices of the peace and constables, and to redistrict the precincts when necessary. Tex. Rev. Civ. Stat. Ann., Art. 2351 (1) (1971).

In June 1973, the Commissioners Court of Harris County adopted a redistricting plan for the eight justice of the peace precincts in the county. The last redistricting had taken place in 1876, and the enormous population changes in the Houston area had resulted in gross disparities in population among the precincts: the largest precinct contained approximately one million persons, while the smallest had fewer than 7,000.

Under the old plan, one justice of the peace and one constable were assigned to each precinct except the largest, which was allotted two justices and one constable. Because of the apparent discrepancy in the workload of the officials in different precincts, the Commissioners Court adopted a redistricting plan that redrew the precinct lines. Although the proposed new precincts still varied substantially in population size, the disparity was much less than it had been.

Among other changes, the plan consolidated three of the smallest precincts and parts of two others into a single new precinct. As a result, four justices and three constables found themselves residents of a single precinct, which was entitled by law to a maximum of only one constable and two justices of the peace. Pursuant to a Texas statute, Tex. Rev. Civ. Stat. Ann., Art 2351% (c) (1971), the Commissioners Court declared the constable and justice posts for that precinct to be vacant, since there were more officials living in the precinct than positions available. The Commissioners Court then filled the vacancies, Tex. Rev. Civ. Stat. Ann., Art. 2355 (1971), appointing one of the displaced constables to the new constable post and one of the displaced justices to one of the two new justice positions. A nonincumbent was appointed to fill the other slot.

The five officeholders, threatened with removal prior to the expiration of their elected terms, resorted to court action in an effort to block implementation of the redistricting plan. One of the constables filed suit in state court, but when that court denied his application for a temporary injunction, he apparently abandoned the action. Shortly thereafter, the three displaced justices and two constables, along with two voters who had lived in their precincts, brought suit in the United States District Court for the Southern District of Texas, claiming that the redistricting scheme was unconstitutional. Their removal pursuant to Art. 2351% (c) violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the officials contended. More specifically, they argued that the redistricting order was constitutionally invalid because it did not meet “one man, one vote” standards, because it denied voters in certain precincts the full effect of their votes, and because the precincts were redrawn along racial lines. Although the appellees did not expressly raise a state-law claim in their complaint, they argued in their pretrial brief that Art. 2351% (c) was invalid under the State Constitution as well, relying on several state-court cases and two opinions of the Texas Attorney General. In response, the appellants requested that the complaint be dismissed because the suit raised no substantial federal questions and because the appellees had failed to exhaust their state remedies before bringing suit in federal court.

A three-judge court was convened. It heard argument and issued an order later the same day. In its order, the court asserted jurisdiction and enjoined implementation of the redistricting plan on the ground that the Texas statute providing for the removal of the plaintiff justices and constables. was unconstitutional on its face. A week later the court filed a brief opinion in which it wrote that insofar as the statute shortens the term of an elected public official merely because redistricting places him in a district with others, “it invidiously and irrationally discriminates between him and others not so affected.” In addition, the court held that the statute as applied had discriminated between those who voted for or were entitled to vote for the displaced officials, and the voters in other precincts where the elected officials were permitted to serve a full term. Because it found no compelling interest served by redistricting in the middle of plaintiffs’ terms, the court held that to the extent that the redistricting order appointed other persons to plaintiffs’ offices and prevented plaintiffs from carrying out their duties and receiving their salaries for the remainder of their elected terms, the order was invalid.

II

The appellants urge us to reverse the District Court on the merits or, in the alternative, to order the court to abstain pending determination of the state-law questions that pervade this case. Because we agree with appellants that the District Court should have abstained, we reverse without reaching the merits of the equal protection claim sustained by the District Court.

In Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), the Court held that when a federal constitutional claim is premised on an unsettled question of state law, the federal court should stay its hand in order to provide the state courts an opportunity to settle the underlying state-law question and thus avoid the possibility of unnecessarily deciding a constitutional question. Since that decision, we have invoked the “Pullman doctrine” on numerous occasions. E. g., Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498 (1972); Askew v. Hargrave, 401 U. S. 476 (1971); Reetz v. Bozanich, 397 U. S. 82 (1970); Harrison v. NAACP, 360 U. S. 167 (1959); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 (1944); see Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071, 1084-1101 (1974). We have repeatedly warned, however, that because of the delays inherent in the abstention process and the danger that valuable federal rights might be lost in the absence of expeditious adjudication in the federal court, abstention must be invoked only in “special circumstances,” see Zwickler v. Koota, 389 U. S. 241, 248 (1967), and only upon careful consideration of the facts of each case. Baggett v. Bullitt, 377 U. S. 360, 375-379 (1964); Railroad Comm’n v. Pullman Co., supra, at 500.

Where there is an action pending in state court that will likely resolve the state-law questions underlying the federal claim, we have regularly ordered abstention. See Askew v. Hargrave, supra; Albertson v. Millard, 345 U. S. 242 (1953); Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168, 173 (1942); cf. Meredith v. Winter Haven, 320 U. S. 228, 236 (1943). Similarly, when the state-law questions have concerned matters peculiarly within the province of the local courts, see Reetz v. Bozanich, supra; Fornaris v. Ridge Tool Co., 400 U. S. 41 (1970); cf. Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 (1959), we have inclined toward abstention. On the other hand, where the litigation has already been long delayed, see Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324, 329 (1964), or where it has seemed unlikely that resolution of the state-law question would significantly affect the federal claim, see Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 84 (1958); Public Utilities Comm’n v. United Fuel Cas Co., 317 U. S. 456, 462-463 (1943), the Court has held that abstention should not be required.

Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law. If the state courts would be likely to construe the statute in a fashion that would avoid the need for a federal constitutional ruling or otherwise significantly modify the federal claim, the argument for abstention is strong. See Kusper v. Pontikes, 414 U. S. 51 (1973); Lake Carriers’ Assn. v. MacMullan, supra; Harman v. Forssenius, 380 U. S. 528 (1965); Harrison v. NAACP, supra. The same considerations apply where, as in this case, the uncertain status of local law stems from the unsettled relationship between the state constitution and a statute. Here resolution of the question whether the Texas Constitution permits the County Commissioners Court to replace constables and justices of the peace when several live in the same precinct will define the scope of Art. 2351% (c) and, as a consequence, the nature and continued vitality of the federal constitutional claim. As we wrote in Reetz v. Bozanich, 397 U. S., at 87, “the nub of the whole controversy may be the state constitution.”

The appellees insist that abstention would be improper in this case because a Texas court construction of Art. 2351% (c) would not modify or avoid the equal protection question passed on by the District Court. Having analyzed the relevant Texas statutes, constitutional provisions, and precedents, however, we are unable to share their conviction.

The Texas Constitution provides that a justice of the peace or constable “shall hold his office for four years and until his successor shall be elected and qualified.” Art. 5, § 18. Justices of the peace and constables may be removed by state district court judges for various causes, after notice and a trial by jury. Art. 5, § 24. What is unsettled is whether these two provisions ensure justices and constables tenure until the completion of their elected terms even when midterm redistricting places them outside their original precinct or puts them into a precinct that has more than its full complement of officeholders.

In two early cases, the Texas courts held that the State Constitution provides no guarantee of tenure for justices and constables when the County Commissioners Court elects to exercise its redistricting authority. State ex rel. Dowlen v. Rigsby, 17 Tex. Civ. App. 171, 43 S. W. 271, holding approved, 91 Tex. 351, 43 S. W. 1101 (1897); Ward v. Bond, 10 S. W. 2d 590 (Tex. Ct. Civ. App. 1928). The State Supreme Court later appeared to reverse this stand in approving a lower court decision that the State Constitution guaranteed to county commissioners the right to serve until the expiration of their terms, even if redistricting resulted in their living outside their precincts. Childress County v. Sachse, 310 S. W. 2d 414 (Tex. Ct. Civ. App.), holding approved, 158 Tex. 371, 312 S. W. 2d 380 (1958). In an opinion filed shortly before the District Court hearing in this case, the Texas Attorney General applied the reasoning of the Sachse case and ruled that to the extent that Art. 2351% (c) vacated the office of a justice of the peace who no longer lived within his precinct, the statute was invalid. The Attorney General concluded that the State Constitution entitles justices and constables to serve their full terms unless they are removed pursuant to Art. 5, § 24. Op. Atty. Gen. H-220 (1974). The reasoning of the Attorney General’s opinion would appear to extend to this case. Although appellants contend that the Attorney-General has misconstrued the Texas precedents, it seems far from settled that under state law the appellee officeholders must lose their jobs.

These difficult state-law questions intrude in yet another way that strengthens the case for abstention. The proper scope of the order entered by the District Court and the applicability of that order to the plaintiffs’ claims depend directly on questions of state law. The court’s initial order held Art. 2351% (c) unconstitutional and enjoined the redistricting plan altogether. In its opinion, the court apparently intended to narrow its order somewhat, by holding the statute unconstitutional as applied and by enjoining the redistricting order only to the extent that it removed the appellees from their jobs. Yet even that relief was broader than the court’s holding would support. Absent Art. 2351% (c), Texas law may well dictate that upon redistricting, all the justice and constable positions in the county would be vacated. Since the District Court concluded only that Art. 2351% (c) denied the officeholders and voters equal protection by removing some officials in the county but not others, it should not automatically have imposed one remedy — reinstatement—when Texas law might well call for quite another — removal of all the affected officeholders. Yet if the District Court had limited itself to declaring Art. 2351% (c) unconstitutional, and the Commissioners Court had determined that state law would then require that all the county justice and constable positions be vacated, the appellees would be forced to resort to state court in order to vindicate their claimed right to reinstatement. In short, not only the character of the federal right asserted in this case, but even the availability of the relief sought turn in large part on the same unsettled state-law questions. Because the federal claim in this case is “entangled in a skein of state law that must be untangled before the federal case can proceed,” McNeese v. Board of Education, 373 U. S. 668, 674 (1963), we conclude that the District Court erred in not adopting appellants’ suggestion to abstain.

In order to remove any possible obstacles to- state-court jurisdiction, we direct the District Court to dismiss the complaint. The dismissal should be without prejudice so that any remaining federal claim may be raised in a federal forum after the Texas courts have been given the opportunity to address the state-law questions in this case. England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 421-422 (1964).

Reversed and remanded.

Mr. Justice Douglas,

dissenting.

The principle of abstention — judicially created by Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941)— promises to become a serious barrier to the assertion by federal courts of the jurisdiction Congress has bestowed on them. In the present case, suit was started in 1973 in the District Court, which rendered its judgment January 30, 1974. The term of office of the three justices of the peace who were ousted expired December 31, 1974; that of the two constables will expire December 31,1976. After being brought all the way here by the State that ousted them from office, they are now told that their federal suit is dismissed and that they must start litigation anew in the state courts. They would necessarily have to be very rich officeholders — or else be financed by some foundation — to be able to pay the expense of this long, drawn-out litigation.

The three judges who made up the District Court in this case were Thomas G. Gee, John V. Singleton, Jr., and Carl O. Bue, Jr., all named from Texas, all versed in the idiosyncrasies of Texas law. A state agency, acting with full authority of state law, has ousted these elected officials. By remitting them to a state court we now leave them without an effective remedy in view of the short terms of office that are involved. I said in Harrison v. NAACP, 360 U. S. 167, 184 (1959) (dissenting opinion):

“We need not — we should not — give deference to a state policy that seeks to undermine paramount federal law. We fail to perform the duty expressly enjoined by Congress on the federal judiciary in the Civil Rights Acts when we do so.”

We have a like situation here.

Here, as in cases in a federal court by reason of diversity of citizenship, ordinarily a federal court must not decline to exercise the jurisdiction Congress has conferred upon it “merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the state,” Meredith v. Winter Haven, 320 U. S. 228, 234-235 (1943). The alternative course, we held, “would thwart the purpose of the jurisdictional act,” id., at 235.

The teaching of Pullman is greatly exaggerated here. No special circumstances warranting abdication of federal jurisdiction have been shown. Where the judges making up the panel of the three-judge court are from the State whose local law is at issue, I would leave it to them to decide whether the policy of Pullman should be applied in a given case. They know about Pullman as well as most of us. It was a new doctrine when announced. It is word that has long been part of the warp and woof of federal law.

The three judges, seasoned in Texas law, saw no ambiguities, no exotic question of law remaining unresolved, and rendered a forthright decision that was eminently correct on federal law. I would leave to our district judges the question whether the local-law problem counseled abstention.

We do a great disservice when we send these tired and exhausted litigants into the desert in search of this Holy Grail that is already in the keeping of the federal court.

       Article 2351% (c) provides:
      “When boundaries of justice of the peace precincts are changed, so that existing precincts are altered, new precincts are formed, or former precincts are abolished, if only one previously elected or appointed justice of the peace or constable resides within a precinct as so changed, he shall continue in office as justice or constable of that precinct for the remainder of the term to which he was elected or appointed. If more than one justice or constable resides within a precinct as so changed, or if none resides therein, the office shall become vacant and the vacancy shall be filled as other vacancies; provided, however, that in precincts having two justices, if two reside therein, both shall continue in office, and if more than two reside therein, both offices shall become vacant.”
      Another statute, Tex. Elec. Code Ann., Art. 1.05 (Supp. 197¿H975), has been read to require that school district officials reside throughout their terms in the districts that they serve. Whitmarsh v. Buckley, 324 S. W. 2d 298 (Tex. Ct. Civ. App. 1959). County commissioners, by contrast, are not required to reside in their precincts for their full terms. Childress County v. Sachse, 310 S. W. 2d 414 (Tex. Ct. Civ. App.), holding approved, 158 Tex. 371, 312 S. W. 2d 380 (1958). The Texas courts have not yet settled whether Art. 1.05 requires that justices of the peace and constables reside in their precincts throughout their terms, or whether the state constitutional provisions establishing a requirement of county residence for all county officers, Tex. Const., Art. 16, § 14; Art. 5, § 24, excuse justices and constables from the requirements of Art. 1.05.

       The appellees noted in their First Amended Complaint for Declaratory Judgment, filed September 17, 1973, that the state statute, as interpreted by the Commissioners Court, was in apparent conflict with Art. 5, § 24, of the Texas Constitution, which provides a mechanism for removal of county officers, including justices and constables.

       In their pretrial brief, the appellants more properly characterized their “exhaustion” defense as a request for the District Court to abstain.

       The appellants point out that since staggered terms are constitutionally mandated in Texas, Tex. Const., Art. 16, § 65, it would have been impossible for the Commissioners Court to have redistricted at a time that would not have fallen in the middle of some of the justices’ or constables’ terms.

       Because it granted relief on the equal protection claim, the court found it unnecessary to reach the appellees’ other contentions. Nor did the court address the state-law questions or the appellants’ abstention argument.

       We have jurisdiction of this appeal under 28 U. S. C. § 1253. The statute challenged here was plainly of statewide application; it was attacked as being unconstitutional on its face or as applied; and for the purposes of the Three-Judge Court Act, 28 U. S. C. § 2281, the defendant county commissioners were “state officers” in administering the challenged statute. Board of Regents v. New Left Education Project, 404 U. S. 541, 544 n. 2 (1972). The appellees’ claim, moreover, appears sufficient to raise a question for a three-judge court. We recently stated that “claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U. S. C. § 2281.” Goosby v. Osser, 409 U. S. 512, 518 (1973).

       In Gibson v. Berryhill, 411 U. S. 564, 580-581 (1973), we held that abstention was not required, even though a suit that might have obviated the need for federal injunctive relief was pending in the state courts. In Gibson, however, state authorities were pressing charges against the plaintiffs without awaiting the results of the state-court action, and some of the charges against the plaintiffs might have survived even a favorable ruling in the State Supreme Court. Under those circumstances, we held that it was not an abuse of discretion for the District Court to decline to abstain.

       In Wisconsin v. Gonstantineau, 400 U. S. 433 (1971), we declined to order abstention where the federal due process claim was not complicated by an unresolved state-law question, even though the plaintiffs might have sought relief under a similar provision of the state constitution. But where the challenged statute is part of an integrated scheme of related constitutional provisions, statutes, and regulations, and where the scheme as a whole calls for clarifying interpretation by the state courts, we have regularly required the district courts to abstain. See Reetz v. Bozanich, 397 U. S. 82 (1970); Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639 (1959).

       The appellees’ allegation that Art. 2351% (c) is unconstitutionally vague is revealing. The “vagueness” of which they complain is no more than uncertainty about the applicability of the statute to a particular situation; it is not the sort of vagueness that leaves those subject to a statute uncertain about what is required of them. In the case where applicability of the statute is uncertain, abstention is often proper, while in the case where the vagueness claim goes to the obligations imposed by the statute, it is not, since a single state construction often would not bring the challenged statute "within the bounds of permissible constitutional certainty.” Baggett v. Bullitt, 377 U. S. 360, 378 (1964); Procunier v. Martinez, 416 U. S. 396, 401 n. 5 (1974).

       Opinions of the Attorney General are “entitled to careful consideration by the courts, and quite generally regarded as highly persuasive,” Jones v. Williams, 121 Tex. 94, 98, 45 S. W. 2d 130, 131 (1931). The 1974 opinion, however, may be given close scrutiny by the state courts, as it appears to be in direct conflict with several earlier opinions of the Attorney General, see n. 12, infra.

       Even if the Sachse case does not apply to justice precincts, Art. 2351% (c) may still be invalid under state law as a legislative encroachment on the county commissioners’ constitutional powers to fill justice vacancies created in the course of redistricting. Tex. Const., Art. 5, §28. See Op. Atty. Gen. M-68 (1967). If the statute is unconstitutional for this reason, all the justice positions in the county would have been vacated, not just those occupied by the appellees. Obviously, this construction of Texas law would drastically alter the nature of appellees’ federal claim.

       There is support for this view in several early cases and in a number of state Attorney General’s opinions. See Brown v. Meeks, 96 S. W. 2d 839 (Tex. Ct. Civ. App. 1936); State ex rel. Dowlen v.
        Rigsby, 17 Tex. Civ. App. 171, 43 S. W. 271, holding approved, 91 Tex. 351, 43 S. W. 1101 (1897); Ops. Atty. Gen. V-790 (1949) ; V-1032 (1950); WW-536 (1958); 0-112 (1963). These opinions of the Attorney General were qualified in a manner not affecting this case in Op. Atty. Gen. M-68 (1967); see also Op. Atty. Gen. M-562 (1970).

       The Commissioners Court has in fact adopted this view of Texas law in this case. Brief for Appellants 18-20.

       Ordinarily the proper course in ordering “Pullman abstention” is to remand with instructions to retain jurisdiction but to stay the federal suit pending determination of the state-law questions in state court. See Zwickler v. Koota, 389 U. S. 241, 244 n. 4 (1967). The Texas Supreme Court has ruled, however, that it cannot grant declaratory relief under state law if a federal court retains jurisdiction over tbe federal claim. United Services Life Ins. Co. v. Delaney, 396 S. W. 2d 855 (1965); see Romero v. Coldwell, 455 F. 2d 1163, 1167 (CA5 1972); Barrett v. Atlantic Richfield Co., 444 F. 2d 38, 45-46 (CA5 1971).
      We have adopted the unusual course of dismissing in this case solely in order to avoid the possibility that some state-law remedies might otherwise be foreclosed to appellees on their return to state court. Obviously, the dismissal must not be used as a means to defeat the appellees’ federal claims if and when they return to federal court.

      Texas Rev. Civ. Stat. Ann., Art. 2351% (o) (1971), provides:
      “When boundaries of justice of the peace precincts are changed, so that existing precincts are altered, new precincts are formed, or former precincts are abolished, if only one previously elected or appointed justice of the peace or constable resides within a precinct as so changed, he shall continue in office as justice or constable of that precinct for the remainder of the term to which he was elected or appointed. If more than one justice or constable resides within a precinct as so changed, or if none resides therein, the office shall become vacant and the vacancy shall be filled as other vacancies; provided, however, that in precincts having two justices, if two reside therein, both shall continue in office, and if more than two reside therein, both offices shall become vacant.”


source: Caselaw Access Project

author: Mr. Justice Marshall,

license: Public Domain

text:
    FOSTER v. DRAVO CORP.
    No. 73-1773.
    Argued January 20, 1975
    Decided February 18, 1975

      Harry R. Sachse argued the cause for petitioner. With him on the brief were Solicitor General Rork, Assistant Attorney General Hills, Robert E. Kopp, Harold C. Nystrom, and Bobbye D. Spears.

      Robert H. Shoop, Jr., argued the cause for respondent. With him on the brief was Clyde H. Slease.

   Opinion of the Court by

Mr. Justice Marshall,

announced by Mr. Chief Justice Burger.

Through the Military Selective Service Act, Congress has sought to protect veterans returning to civilian jobs from being penalized for having served in the Armed Forces. Section 9 of the Act, 62 Stat. 614, as amended, 50 U. S. C. App. § 459, ensures a returning serviceman the right to be restored to his job with the same levels of seniority, status, and pay that he would have enjoyed if he had held the job throughout the time he was in the military. This case presents the question whether the statute entitles a veteran to vacation benefits when, because of his departure for military service, he has failed to satisfy a substantial work requirement upon which the vacation benefits are conditioned.

I

Petitioner, Earl It. Foster, began working full time for respondent Dravo Corp. in 1965. He worked 22 weeks for the company during that year and earned 20 hours of paid vacation eligibility. In 1966, he worked the entire year and earned the standard second-year vacation benefits, for which he subsequently accepted payment.

In March of the following year, petitioner took a military leave of absence from his job. Before leaving, he worked the first seven weeks of 1967 for the company, and upon his return some 18 months later he worked the last 13 weeks in 1968. Because the collective-bargaining agreement between petitioner’s union and Dravo required employees to work a minimum of 25 weeks in each calendar year in order to earn full vacation benefits, Foster was not awarded any benefits for either year. Since that time, he has continued to work full time for Dravo and has received full vacation benefits from the company for each year of his employment.

Unhappy with the denial of vacation benefits for 1967 and 1968, petitioner brought suit against Dravo in the District Court for the Western District of Pennsylvania. He sought credit for full vacation benefits in both years, claiming that since he would have earned two vacations if he had worked for respondent throughout the time he was in the service, § 9 of the Military Selective Service Act requires that he be credited with the benefits even though he failed to meet the 25-week work requirement in either year.

The District Court held that since the vacation benefits in question did not accrue automatically with continued employment, it did not violate the statute to deny them to employees on military leave of absence. The Court of Appeals for the Third Circuit agreed with the District Court that petitioner had no statutory right to full vacation benefits. From its examination of the contract and other related factors, the court concluded that the vacation right in dispute was not a perquisite of seniority but an earned benefit, and was thus unavailable to a returning serviceman who had not satisfied the work requirement. Noting that a limited pro rata vacation provision in the collective-bargaining agreement might provide an alternative basis for petitioner to receive some vacation benefits for 1967 and 1968, the court remanded the case to the District Court for further proceedings on that narrow question. 490 F. 2d 55 (1973). We granted certiorari, 419 U.S.823 (1974),because of an apparent conflict with the decisions of the Courts of Appeals for the Seventh and Ninth Circuits. See Ewert v. Wrought Washer Mfg. Co., 477 F. 2d 128 (CA7 1973); Locaynia v. American Airlines, 457 F. 2d 1253 (CA9), cert. denied, 409 U. S. 982 (1972). We affirm.

II

The Selective Training and Service Act of 1940, 54 Stat. 885, 890, which was very similar to the present 50 U. S. C. App. §459 (c)(1), provided that any person leaving a civilian job to enter the military would be entitled to be restored to a position of "like seniority, status, and pay” upon his return unless circumstances had so changed “as to make it impossible or unreasonable to do so.” The statute further required that the veteran be restored “without loss of seniority” and be considered “as having been on furlough or leave of absence” during the period of his military service.

On the first of several encounters with the Act, this Court interpreted the guarantee against loss of seniority rights to mean that the veteran’s time in the service must be credited toward his seniority with his employer just as if he had remained on the job throughout. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 285 (1946). To deny him credit for time spent in the military would mean that the veteran would lose ground by reason of his absence. This, the Court stated, would violate the statutory principle that the serviceman “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id., at 284—285. See also Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 283 (1949).

After the Fishgold decision, Congress re-enacted the statute, adding language that expressly codified the holding in that case. The amendment provided that a veteran must be restored to his position with the status that “he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration.” 62 Stat. 604, 615-616, 50 U. S. C. App. § 459 (c) (2).

In subsequent cases, the Court has consistently applied the statute to assure that benefits and advancements that would necessarily have accrued by virtue of continued employment would not be denied the veteran merely because of his absence in the military service. McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265, 272 (1958). On the other hand, where the claimed benefit requires more than simple continued status as an employee, the Court has held that it is not protected by the statute. See id., at 273; Tilton v. Missouri Pacific R. Co., 376 U. S. 169, 181 (1964).

In Accardi v. Pennsylvania R. Co., 383 U. S. 225 (1966), the Court applied these principles for the first time to a benefit not traditionally considered a seniority right. The dispute in that case concerned a veteran's eligibility for a severance payment. Under the applicable collective-bargaining agreement, the amount of severance pay due each employee depended on the length of the employee's “compensated service'' with the respondent railroad. The railroad argued that the Act was inapplicable because the amount of the severance payment did not depend directly on seniority. The Court, however, took a broader view. Looking beyond the narrow characterization of seniority rights in the collective-bargaining agreement, the Court concluded that the severance payments were not intended as a form of deferred compensation for work done in the past, but rather as a means of compensating employees for the loss of rights and benefits accumulated over a long period of service. Accordingly, the Court held that the severance payments in that case were “just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall.” Id., at 230.

Two years later, in Eagar v. Magma Copper Co., 389 U. S. 323 (1967), the Court applied the statute to a vacation and holiday pay provision in a collective-bargaining agreement. The petitioner in that case had satisfied all the work requirements for the benefits in question, but he had not met the further conditions that he be employed on the one-year anniversary date of his starting work with the company, and that he be on the payroll for the three months preceding each paid holiday.

In a per curiam opinion, the Court reversed the judgment for the company on the authority of Accardi. Since the petitioner had met all the contractual work requirements and would have been eligible for the contested benefits if he had simply remained on the company payroll, it was unnecessary to consider whether the work requirements would have barred veterans who had not met them. On the facts before the Court, the decision fell within the principle that a returning serviceman must be treated as if he had kept his job continuously throughout the period of his military service.

Ill

Petitioner argues that under Accardi and Eagar the vacation benefits in this case must be granted to him as a returning serviceman because the entitlement to a vacation is not closely correlated to the amount of work actually performed by the employee. Under the collective-bargaining agreement, a Dravo employee theoretically could earn full vacation benefits by doing as little as one hour’s work in each of 25 weeks during the year. From this, petitioner concludes that the agreement really conditions vacation benefits only on continued employment, and that Dravo therefore could not legally deny him full vacation benefits for either 1967 or 1968.

This approach would extend the statute well beyond the limits set out in our prior cases. Generally, the presence of a work requirement is strong evidence that the benefit in question was intended as a form of compensation. Of course, as in the Accardi case, the work requirement may be so insubstantial that it appears plainly designed to measure time on the payroll rather than hours on the job; in that event, the Act requires that the benefit be granted to returning veterans. But where the work requirement constitutes a bona fide effort to compensate for work actually performed, the fact that it correlates only loosely with the benefit is not enough to invoke the statutory guarantee.

We agree with the Court of Appeals that, unlike the severance payments in Accardi, the vacation benefits in this case were intended as a form of short-term compensation for work performed. Although Dravo employees who work for 25 weeks receive the same paid vacation rights as those who work a full year, the collective-bargaining agreement provides additional vacation credit for employees who work overtime for a substantial period. The benefits under the overtime vacation provision increase with the amount of overtime worked. In addition, the agreement provides that if an employee is laid off during the year and does not work the requisite 25 weeks, he will be awarded vacation benefits on a pro rata basis.

These provisions lend substantial support to respondent’s claim that the vacation scheme was intended as a form of deferred compensation. Petitioner’s observation that an employee could in theory earn a vacation under the collective-bargaining agreement with only a few carefully spaced hours of work is not enough to rebut the plain indication that a full vacation was intended in most cases to be awarded for a full year’s work.

On petitioner’s theory of the case, the company would be required to provide full vacation benefits to a returning serviceman if he worked no more than one week in each year; indeed, following this approach to its logical limits, a veteran who served in the Armed Forces for four years would be entitled to accumulated vacation benefits for all four years upon his return. This result is so sharply inconsistent with the common conception of a vacation as a reward for and respite from a lengthy period of labor that the statute should be applied only where it clearly appears that vacations were intended to accrue automatically as a function of continued association with the company. Since no such showing was made here, and since petitioner has not met the bona fide work requirement in the collective-bargaining agreement, we conclude that § 9 did not guarantee him full vacation rights for the two years in question.

IV

In the alternative, petitioner asserts that the statute entitles him at least to pro rata vacation benefits for the time he served Dravo during 1967 and 1968. If he is denied even a pro rata share of vacation benefits, petitioner claims he will in effect be penalized for taking a military leave of absence, a result that the Act was expressly intended to prevent.

We can find nothing in the statute, independent of the rights conferred in the collective-bargaining agreement, that would justify such a Solomonic solution. The statute requires that a returning veteran be treated the same as an employee “on furlough or leave of absence,” 50 U. S. C. App. § 459 (c)(1), but petitioner’s suggestion would grant pro rata vacation rights to veterans regardless of whether any other class of employees would be similarly treated.

Although we reject petitioner’s statutory theory, the potential availability of pro rata vacation rights enters the case in a somewhat different way. The collective-bargaining agreement provides pro rata vacation rights to those employees who were unable to accumulate the minimum of 25 weeks of employment because of layoffs. Art. XIV, § 2. In light of this provision, the Court of Appeals noted that petitioner might have a claim for pro rata benefits under the agreement. It therefore remanded the case to the District Court to determine whether petitioner had adequately preserved that point before the District Court and, if so, whether he was entitled to some vacation benefits.’

We agree with the Court of Appeals that because it was not litigated at the trial level, this question should be remanded to the District Court for further proceedings. Accordingly, we affirm the judgment of the Court of Appeals.

Affirmed.

Me. Justice Douglas took no part in the consideration or decision of this case.

       Section 9 (b) provides a right to re-employment for any serviceman who “has left or leaves a position . . . and . . . makes application for reemployment within ninety days after he is relieved from such training and service.” Section 9 (b) (B) (i) adds that if the serviceman is “still qualified to perform the duties of such position, [he shall] be restored by such employer ... to such position or to a position of like seniority, status, and pay.” Section 9 (c), which governs the rights of those restored to positions after return from the service, provides in relevant part:
      “(1) Any person who is restored to a position in accordance with the provisions of . . . this section shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
      “(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of . . . this section should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”

       The collective-bargaining agreement between Dravo and petitioner’s union, the Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, governed the eligibility conditions for vacation benefits. In his first year with the company, petitioner was eligible for four hours of paid vacation for each month worked, up to a maximum of 40 hours. Art. XIV, § 1.

       Under the collective-bargaining agreement, the length of the vacation earned each year increases with the employee’s seniority. The ordinary second-year vacation is seven days’ leave with pay. After the second year, the vacation increases by one day per year, for the first five years with the company, and then by one week for each five years of “continuous employment,” to a maximum of five weeks. Ibid.

       The agreement provides that after the first year an employee can qualify for a vacation if he has received earnings in at least 25 workweeks during the calendar year. A vacation earned in one year can be taken during the next year at a time designated by the company. When an employee is laid off prior to taking his earned vacation, the company gives him his vacation pay at that time, regardless of when his vacation was scheduled. Ibid.

       Petitioner has been represented by the Government throughout this action. By statute, the United States Attorney is charged with representing claimants under § 9 of the Military Selective Service Act, if the claimant reasonably appears entitled to the benefits in dispute. 50 U. S. C. App. § 459 (d).

       The 1940 Act was essentially re-enacted in the Selective Service Act of 1948, 62 Stat. 604. The name of the Act was changed in 1951 to the Universal Military Training and Service Act, 65 Stat. 75. In 1967 it was renamed the Military Selective Service Act of 1967, 81 Stat. 100. It was given its present name, the Military Selective Service Act, in 1971, 85 Stat. 348. The present §§ 9 (b) and 9 (c) (1) have remained largely unchanged since 1940, and § 9 (c) (2) has been preserved in its current form since the re-enactment of 1948.
      The re-employment provisions of the Act apply not only to those drafted under the provisions of the Act, but also to men and women who enlist voluntarily in the Armed Forces, as long as the period of service does not exceed four, or in certain cases, five years. 50 U.S. C. App. §459 (g)(1).

       The dissenters in Eagar v. Magma Copper Co. argued that the statute’s protection applied only to rights associated with seniority. 389 U. S. 323, 325 (1967) (Douglas, J., joined by Harlan and Stewart, JJ., dissenting). They would have distinguished between eligibility based upon being on the payroll on a particular date or for a particular period from eligibility based upon length of service with the company. The majority implicitly rejected this distinction.

       Petitioner’s reliance on the treatment of the work requirement in Accardi is misplaced. The Court there concluded that the severance payments were based primarily on the employees' length of service with the railroad, not on the actual total service rendered. The putative “work requirement” in that case, the Court concluded, did not disguise the true nature of the payments as compensation for the loss of jobs. The Bagar case provides even less support for petitioner since that case did not involve an unsatisfied work requirement.

       In contrast to the conditions of eligibility for a vacation are the terms governing the length of the vacation to which an employee is entitled. As noted above, the length of vacation increases with the employee’s length of “continuous employment” with Dravo, which is defined in the collective-bargaining agreement as “continuous seniority.” Art. XIV, §§ 1, 2. Respondent concedes that the employee’s time in the service must be counted in determining the length of the vacation that is earned; for the years in which petitioner has worked the 25 weeks required to earn a vacation, the length of his vacation has been calculated as if he had been continuously employed with the company since 1965.

       Even if petitioner is not eligible for vacation benefits as a purely contractual matter, he may be entitled to pro rata benefits under the “other benefits” provision of § 9 (c) (1) of the Act, read in conjunction with the collective-bargaining agreement. Since the statute requires that vacation benefits be granted to returning veterans on the same basis as they are to those on furlough or leave of absence, petitioner would be entitled to pro rata benefits if the layoff referred to in the collective-bargaining agreement includes a furlough or leave of absence, or is found to be the equivalent of either.


author: Mr. Justice Powell Mr. Justice Stewart, with whom Mr. Justice Douglas,

text:
    GERSTEIN v. PUGH et al.
    No. 73-477.
    Argued March 25, 1974
    Reargued October 21, 1974r—
    Decided February 18, 1975

      Leonard R. Mellon reargued the cause for petitioner. With him on the brief was N. Joseph Durant, Jr.

      Bruce S. Rogow reargued the cause for respondents. With him on the briefs was Phillip A. Hubbart.

      Paul L. Friedman reargued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Deputy Solicitor General Frey. Raymond L. Marky, Assistant Attorney General, re-argued the cause for the State of Florida as amicus curiae urging reversal. With him on the brief were Robert L. Sh&vin, Attorney General, and George R. Georgieff, Assistant Attorney General.

      Briefs of amici curiae urging reversal were filed by Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Richard L. Chambers, Assistant Attorney General, and John W. Dunsmore, Jr., Deputy Assistant Attorney General, for the State of Georgia; by William J. Guste, Jr., Attorney General, and Walter L. Smith, Jr., Assistant Attorney General, for the State of Louisiana; by Robert H. Quinn, Attorney General, John J. Irwin, Jr., David A. Mills, and Barbara A. H. Smith, Assistant Attorneys General, and Michael C. Donahue, Deputy Assistant Attorney General, for the Commonwealth of Massachusetts; by John L. Hill, Attorney General, Larry F. York, First Assistant Attorney General, Joe B. Dibrell and Max P. Flusche, Jr., Assistant Attorneys General, and Larry Gist for the State of Texas; by Vernon B. Romney, Attorney General, and M. Reid Russell, Chief Assistant Attorney General, for the State of Utah; and by Slade Gorton, Attorney General, Malachy R. Murphy, Deputy Attorney General, and Kevin M. Ryan, Assistant Attorney General, for the State of Washington.
      Briefs of amici curiae urging affirmance were filed by Daniel S. Pearson and Louis M. Jepeway, Jr., for the Dade County Bar Assn., and by Malvine Nathanson for the National Legal Aid and Defender Assn.
      Briefs of amici curiae were filed by Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Doris H. Maier, Assistant Attorney General, and Joseph P. Busch for the Appellate Committee of the California District Attorneys Assn, et al.; by William F. Hyland, Attorney General, and Howard E. Drucks, Deputy Attorney General, for the State of New Jersey; and by Kimberly B. Cheney, Attorney General, and Alan W. Cook, Assistant Attorney General, for the State of Vermont.

   Mr. Justice Powell

delivered the opinion of the Court.

The issue in this case is whether a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.

I

In March 1971 respondents Pugh and Henderson were arrested in Dade County, Fla. Each was charged with several offenses under a prosecutor’s information. Pugh was denied bail because one of the charges against him carried a potential life sentence, and Henderson remained in custody because he was unable to post a $4,500 bond.

In Florida, indictments are required only for prosecution of capital offenses. Prosecutors may charge all other crimes by information, without a prior preliminary hearing and without obtaining leave of court. Fla. Rule Crim. Proc. 3.140 (a); State v. Hernandez, 217 So. 2d 109 (Fla. 1968); Di Bona v. State, 121 So. 2d 192 (Fla. App. 1960). At the time respondents were arrested, a Florida rule seemed to authorize adversary preliminary hearings to test probable cause for detention in all cases. Fla. Rule Crim. Proc. 1.122 (before amendment in 1972). But the Florida courts had held that the filing of an information foreclosed the suspect’s right to a preliminary-hearing. See State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla. 1972). They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. See Sullivan v. State ex rel. McCrory, 49 So. 2d 794, 797 (Fla. 1951). The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla. Stat. Ann. §907.045 (1973), and arraignment, which the District Court found was often delayed a month or more after arrest. Pugh v. Rainwater, 332 F. Supp. 1107, 1110 (SD Fla. 1971). As a result, a person charged by information could be detained for a substantial period solely on the decision of a prosecutor.

Respondents Pugh and Henderson filed a class action against Dade County officials in the Federal District Court, claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. Respondents Turner and Faulk, also in custody under informations, subsequently intervened. Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants.

After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. Pugh v. Rainwater, supra. The court certified the case as a class action under Fed. Rule Civ. Proc. 23 (b) (2), and held that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable cause. The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention. It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information.

The defendants submitted a plan prepared by Sheriff E. Wilson Purdy, and the District Court adopted it with modifications. The final order prescribed a detailed post-arrest procedure. 336 F. Supp. 490 (SD Fla. 1972). Upon arrest the accused would be taken before a magistrate for a “first appearance hearing.” The magistrate would explain the charges, advise the accused of his rights, appoint counsel if he was indigent, and proceed with a probable cause determination unless either the prosecutor or the accused was unprepared. If either requested more time, the magistrate would set the date for a “preliminary hearing,” to be held within four days if the accused was in custody and within 10 days if he had been released pending trial. The order provided sanctions for failure to hold the hearing at prescribed times. At the “preliminary hearing” the accused would be entitled to counsel, and he would be allowed to confront and cross-examine adverse witnesses, to summon favorable witnesses, and to have a transcript made on request. If the magistrate found no probable cause, the accused would be discharged. He then could not be charged with the same offense by complaint or information, but only by indictment returned within 30 days.

The Court of Appeals for the Fifth Circuit stayed the District Court's order pending appeal, but while the case was awaiting decision, the Dade County judiciary voluntarily adopted a similar procedure of its own. Upon learning of this development, the Court of Appeals remanded the case for specific findings on the constitutionality of the new Dade County system. Before the District Court issued its findings, however, the Florida Supreme Court amended the procedural rules governing preliminary hearings statewide, and the parties agreed that the District Court should direct its inquiry to the new rules rather than the Dade County procedures.

Under the amended rules every arrested person must be taken before a judicial officer within 24 hours. Fla. Rule Crim. Proc. 3.130 (b). This “first appearance” is similar to the “first appearance hearing” ordered by the District Court in all respects but the crucial one: the magistrate does not make a determination of probable cause. The rule amendments also changed the procedure for preliminary hearings, restricting them to felony charges and codifying the rule that no hearings are available to persons charged by information or indictment. Rule 3.131; see In re Rule 3.131 (b), Florida Rules of Criminal Procedure, 289 So. 2d 3 (Fla. 1974).

In a supplemental opinion the District Court held that the amended rules had not answered the basic constitutional objection, since a defendant charged by information still could be detained pending trial without a judicial determination of probable cause. 355 F. Supp. 1286 (SD Fla. 1973). Reaffirming its original ruling, the District Court declared that the continuation of this practice was unconstitutional. The Court of Appeals affirmed, 483 F. 2d 778 (1973), modifying the District Court’s decree in minor particulars and suggesting that the form of preliminary hearing provided by the amended Florida rules would be acceptable, as long as it was provided to all defendants in custody pending trial. Id., at 788-789.

State Attorney Gerstein petitioned for review, and we granted certiorari because of the importance of the issue. 414 U. S. 1062 (1973). We affirm in part and reverse in part.

II

As framed by the proceedings below, this case presents two issues: whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution.

A

Both the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents. See Cupp v. Murphy, 412 U. S. 291, 294-295 (1973); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Burford, 3 Cranch 448 (1806). The standard for arrest is probable cause, defined in terms of facts and circumstances “sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U. S. 89, 91 (1964). See also Henry v. United States, 361 U. S. 98 (1959); Brinegar v. United States, 338 U. S. 160, 175-176 (1949). This standard, like those for searches and seizures, represents a necessary accommodation between the individual’s right to liberty and the State’s duty to control crime.

“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Id., at 176.

To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible. The classic statement of this principle appears in Johnson v. United States, 333 U. S. 10, 13-14 (1948):

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

See also Terry v. Ohio, 392 U. S. 1, 20-22 (1968).

Maximum protection of individual rights could be assured by requiring a magistrate’s review of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement. Thus, while the Court has expressed a preference for the use of arrest warrants when feasible, Beck v. Ohio, supra, at 96; Wong Sun v. United States, 371 U. S. 471, 479-482 (1963), it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant. See Ker v. California, 374 U. S. 23 (1963); Draper v. United States, 358 U. S. 307 (1959); Trupiano v. United States, 334 U. S. 699, 705 (1948).

Under this practical compromise, a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972). Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. See, e. g., 18 U. S. C. §§ 3146 (a)(2), (5). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.

This result has historical support in the common law that has guided interpretation of the Fourth Amendment. See Carroll v. United States, 267 U. S. 132, 149 (1925). At common law it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest. 2 M. Hale, Pleas of the Crown 77, 81, 95, 121 (1736); 2 W. Hawkins, Pleas of the Crown 116-117 (4th ed. 1762). See siso Kurtz v. Moffitt, 115 U. S. 487, 498-499 (1885). The justice of the peace would “examine” the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime. If there was, the suspect would be committed to jail or bailed pending trial. If not, he would be discharged from custody. 1 M. Hale, supra, at 583-586; 2 W. Hawkins, supra, at 116-119; 1 J. Stephen, History of the Criminal Law of England 233 (1883). The initial determination of probable cause also could be reviewed by higher courts on a writ of habeas corpus. 2 W. Hawkins, supra, at 112-115; 1 J. Stephen, supra, at 243; see Ex parte Bollman, 4 Cranch, at 97-101. This practice furnished the model for criminal procedure in America immediately following the adoption of the Fourth Amendment, see Ex parte Bollman, supra; Ex parte Burford, 3 Cranch 448 (1806); United States v. Hamilton, 3 Dall. 17 (1795), and there are indications that the Framers of the Bill of Rights regarded it as a model for a “reasonable” seizure. See Draper v. United States, 358 U. S., at 317-320 (Douglas, J., dissenting).

B

Under the Florida procedures challenged here, a person arrested without a warrant and charged by information may be jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination. Petitioner defends this practice on the ground that the prosecutor's decision to file an information is itself a determination of probable cause that furnishes sufficient reason to detain a defendant pending trial. Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment. Indeed, we think the Court's previous decisions compel disapproval of the Florida procedure. In Albrecht v. United States, 273 U. S. 1, 5 (1927), the Court held that an arrest warrant issued solely upon a United States Attorney’s information was invalid because the accompanying affidavits were defective. Although the Court’s opinion did not explicitly state that the prosecutor’s official oath could not furnish probable cause, that conclusion was implicit in the judgment that the arrest was illegal under the Fourth Amendment. More recently, in Coolidge v. New Hampshire, 403 U. S. 443, 449-453 (1971), the Court held that a prosecutor’s responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate. We reaffirmed that principle in Shad- wick v. City of Tampa, 407 U. S. 345 (1972), and held that probable cause for the issuance of an arrest warrant must be determined by someone independent of police and prosecution. See also United States v. United States District Court, 407 U. S. 297, 317 (1972). The reason for this separation of functions was expressed by Mr. Justice Frankfurter in a similar context:

“A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication.” McNabb v. United States, 318 U. S. 332, 343 (1943).

In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U. S. 541, 545 (1962); Lem Woon v. Oregon, 229 U. S. 586 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U. S. 519 (1952); Ker v. Illinois, 119 U. S. 436 (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. 483 F. 2d, at 786-787. Compare Scarbrough v. Dutton, 393 F. 2d 6 (CA5 1968), with Brown v. Fauntleroy, 143 U. S. App. D. C. 116, 442 F. 2d 838 (1971), and Cooley v. Stone, 134 U. S. App. D. C. 317, 414 F. 2d 1213 (1969).

Ill

Both the District Court and the Court of Appeals held that the determination of probable cause must be accompanied by the full panoply of adversary safeguards — counsel, confrontation, cross-examination, and compulsory process for witnesses. A full preliminary hearing of this sort is modeled after the procedure used in many States to determine whether the evidence justifies going to trial under an information or presenting the case to a grand jury. See Coleman v. Alabama, 399 U. S. 1 (1970); Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 957-967, 996-1000 (4th ed. 1974). The standard of proof required of the prosecution is usually referred to as “probable cause,” but in some jurisdictions it may approach a prima facie case of guilt. ALI, Model Code of Pre-arraignment Procedure, Commentary on Art. 330, pp. 90-91 (Tent. Draft No. 5, 1972). When the hearing takes this form, adversary procedures are customarily employed. The importance of the issue to both the State and the accused justifies the presentation of witnesses and full exploration of their testimony on cross-examination. This kind of hearing also requires appointment of counsel for indigent defendants. Coleman v. Alabama, supra. And, as the hearing assumes increased importance and the procedures become more complex, the likelihood that it can be held promptly after arrest diminishes. See ALI, Model Code of Pre-arraignment Procedure, supra, at 33-34.

These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard — probable cause to believe the suspect has committed a crime — traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.

“Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Brinegar v. United States, 338 U. S., at 174-175.

Cf. McCray v. Illinois, 386 U. S. 300 (1967).

The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64— 109 (1969). This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.

Because of its limited function and its nonadversary character, the probable cause determination is not a “critical stage” in the prosecution that would require appointed counsel. The Court has identified as “critical stages” those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. Coleman v. Alabama, 399 U. S. 1 (1970); United States v. Wade, 388 U. S. 218, 226-227 (1967). In Coleman v. Alabama, where the Court held that a preliminary hearing was a critical stage of an Alabama prosecution, the majority and concurring opinions identified two critical factors that distinguish the Alabama preliminary hearing from the probable cause determination required by the Fourth Amendment. First, under Alabama law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense. A finding of no probable cause could mean that he would not be tried at.all. The Fourth Amendment probable cause determination is addressed only to pretrial custody. To be sure, pretrial custody may affect to some extent the defendant’s ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman. Second, Alabama allowed the suspect to confront and cross-examine prosecution witnesses at the preliminary hearing. The Court noted that the suspect’s defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses’ testimony. This consideration does not apply when the prosecution is not required to produce witnesses for cross-examination.

Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect’s first appearance before a judicial officer, see McNabb v. United States, 318 U. S., at 342-344, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention. Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.

IV

We agree with the Court of Appeals that the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention, and we accordingly affirm that much of the judgment. As we do not agree that the Fourth Amendment requires the adversary hearing outlined in the District Court’s decree, we reverse in part and remand to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Stewart, with whom Mr. Justice Douglas,

Mr. Justice Brennan, and Mr. Justice Marshall join,

concurring.

I concur in Parts I and II of the Court’s opinion, since the Constitution clearly requires at least a timely judicial determination of probable cause as a prerequisite to pretrial detention. Because Florida does not provide all defendants in custody pending trial with a fair and reliable determination of probable cause for their detention, the respondents and the members of the class they represent are entitled to declaratory and injunctive relief.

Having determined that Florida’s current pretrial detention procedures are constitutionally inadequate, I think it is unnecessary to go further by way of dicta. In particular, I would not, in the abstract, attempt to specify those procedural protections that constitutionally need not be accorded incarcerated suspects awaiting trial.

Specifically, I see no need in this case for the Court to say that the Constitution extends less procedural protection to an imprisoned human being than is required to test the propriety of garnishing a commercial bank account, North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601; the custody of a refrigerator, Mitchell v. W. T. Grant Co., 416 U. S. 600; the temporary suspension of a public school student, Goss v. Lopez, 419 U. S. 565; or the suspension of a driver’s license, Bell v. Burson, 402 U. S. 535. Although it may be true that the Fourth Amendment’s “balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases,” ante, at 125 n. 27, this case does not involve an initial arrest, but rather the continuing incarceration of a presumptively innocent person. Accordingly, I cannot join the Court’s effort to foreclose any claim that the traditional requirements of constitutional due process are applicable in the context of pretrial detention.

It is the prerogative of each State in the first instance to develop pretrial procedures that provide defendants in pretrial custody with the fair and reliable determination of probable cause for detention required by the Constitution. Cf. Morrissey v. Brewer, 408 U. S. 471, 488. The constitutionality of any particular method for determining probable cause can be properly decided only by evaluating a State’s pretrial procedures as a whole, not by isolating a particular part of its total system. As the Court recognizes, great diversity exists among the procedures employed by the States in this aspect of their criminal justice system. Ante, at 123-124.

There will be adequate opportunity to evaluate in an appropriate future case the constitutionality of any new procedures that may be adopted by Florida in response to the Court’s judgment today holding that Florida’s present procedures are constitutionally inadequate.

       Respondent Pugh was arrested on March 3, 1971. On March 16 an information was filed charging him with robbery, carrying a concealed weapon, and possession of a firearm during commission of a felony. Respondent Henderson was arrested on March 2, and charged by information on March 19 with the offenses of breaking and entering and assault and battery. The record does not indicate whether there was an arrest warrant in either case.

       Florida law also denies preliminary hearings to persons confined under indictment, see Sangaree v. Hamlin, 235 So. 2d 729 (Fla. 1970) ; Fla. Rule Crim. Proc. 3.131 (a); but that procedure is not challenged in this case. See infra, at 117 n. 19.

       This statute may have been construed to make the hearing permissive instead of mandatory. See Evans v. State, 197 So. 2d 323 (Fla. App. 1967); Fla. Op. Atty. Gen. 067-29 (1967). But cf. Karz v. Overton, 249 So. 2d 763 (Fla. App. 1971). It may also have been superseded by the subsequent amendments to the Rules of Criminal Procedure. In re Florida Rules of Criminal Procedure, 272 So. 2d 65 (1972).

       The Florida rules do not suggest that the issue of probable cause can be raised at arraignment, Fla. Rule Crim. Proc. 3.160, but counsel for petitioner represented at oral argument that arraignment affords the suspect an opportunity to “attack the sufficiency of the evidence to hold him.” Tr. of Oral Arg. 17 (Mar. 25, 1974). The Court of Appeals assumed, without deciding, that this was true. 483 F. 2d 778, 781 n. 8 (CA5 1973).

       The complaint was framed under 42 U. S. C. § 1983, and jurisdiction in the District Court was based on 28 U. S. C. § 1343 (3).

       Respondents did not ask for release from state custody, even as an alternative remedy. They asked only that the state authorities be ordered to give them a probable cause determination. This was also the only relief that the District Court ordered for the named respondents. 332 F. Supp. 1107, 1115-1116, (SD Fla. 1971). Because release was neither asked nor ordered, the lawsuit did not come within the class of cases for which habeas corpus is the exclusive remedy. Preiser v. Rodriguez, 411 U. S. 475 (1973); see Wolff v. McDonnell, 418 U. S. 539, 55-555 (1974).

         Turner was being held on a charge of auto theft, following arrest on March 11, 1971. Faulk was arrested on March 19 on charges of soliciting a ride and possession of marihuana.

       The named defendants included justices of the peace and judges of small-claims courts, who were authorized to hold preliminary hearings in criminal cases, and a group of law enforcement officers with power to make arrests in Dade County. Gerstein was the only one who petitioned for certiorari.

       The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris, 401 U. S. 37 (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. See Conover v. Montemuro, 477 F. 2d 1073, 1082 (CA3 1972); cf. Perez v. Ledesma, 401 U. S. 82 (1971); Stefanelli v. Minard, 342 U. S. 117 (1951).

       Although this ruling held a statewide “legislative rule” unconstitutional, it was not outside the jurisdiction of a single judge by virtue of 28 U. S. C. §2281. The original complaint did not ask for an injunction against enforcement of any state statute or legislative rule of statewide application, since the practice of denying preliminary hearings to persons charged by information was then embodied only in judicial decisions. The District Court therefore had jurisdiction to issue the initial injunction, and the Court of Appeals had jurisdiction over the appeal. On remand, the constitutionality of a state “statute” was drawn into question for the first time when the criminal rules were amended. The District Court’s supplemental opinion can fairly be read as a declaratory judgment that the amended rules were unconstitutional; the injunctive decree was never amended to incorporate that holding; and the opinion in the Court of Appeals is not inconsistent with the conclusion that the District Court did not enjoin enforcement of the statewide rule. See 483 F. 2d, at 788-790. Accordingly, a district court of three judges was not required for the issuance of this order. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 152-155 (1963); Flemming v. Nestor, 363 U.S. 603, 606-608 (1960).

       At oral argument counsel informed us that the named respondents have been convicted. Their pretrial detention therefore has ended. This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See Sosna v. Iowa, 419 U. S. 393 (1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”
      At the time the complaint was filed, the named respondents were members of a class of persons detained without a judicial probable cause determination, but the record does not indicate whether any of them were still in custody awaiting trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sosna. But this case is a suitable exception to that requirement. See Sosna, supra, at 402 n. 11; cf. Rivera v. Freeman, 469 F. 2d 1159, 1162-1163 (CA9 1972). The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.

       We reiterated this principle in United States v. United States District Court, 407 U. S. 297 (1972). In terms that apply equally to arrests, we described the “very heart of the Fourth Amendment directive” as a requirement that “where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation.” Id., at 316.

       Another aspect of Trupiano was overruled in United States v. Rabinowitz, 339 U. S. 56 (1950), which was overruled in turn by Chimel v. California, 395 U. S. 752 (1969).
      The issue of warrantless arrest that has generated the most controversy, and that remains unsettled, is whether and under what circumstances an officer may enter a suspect’s home to make a war-rantless arrest. See Coolidge v. New Hampshire, 403 U. S. 443, 474-481 (1971); id., at 510-512, and n. 1 (White, J., dissenting); Jones v. United States, 357 U. S. 493, 499-500 (1958).

       The primary motivation for the requirement seems to have been the penalty for allowing an offender to escape, if he had in fact committed the crime, and the fear of liability for false imprisonment, if he had not. But Hale also recognized that a judicial warrant of commitment, called a mittimus, was required for more than brief detention.
      “When a private person hath arrested a felon, or one suspected of felony, he may detain him in custody till he can reasonably dismiss himself of him; but with as much speed as conveniently he can, he may do either of these things.
      “1. He may carry him to the common gaol, . . . but that is now rarely done.
      “2. He may deliver him to the constable of the vill, who may either carry him to the common gaol, ... or to a justice of peace to be examined, and farther proceeded against as case shall require. . . .
      “3. Or he may carry him immediately to any justice of peace of the county where he is taken, who upon examination may discharge, bail, or commit him, as the case shall require.
      “And the bringing the offender either by the constable or private person to a justice of peace is most usual and safe, because a gaoler will expect a Mittimus for his warrant of detaining.” 1 M. Hale, Pleas of the Crown 589-590 (1736).

       The examination of the prisoner was inquisitorial, and the witnesses were questioned outside the prisoner’s presence. Although this method of proceeding was considered quite harsh, 1 J. Stephen, supra, at 219-225, it was well established that the prisoner was entitled to be discharged if the investigation turned up insufficient evidence of his guilt. Id., at 233.

       In Ex parte Bollman, two men charged in the Aaron Burr case were committed following an examination in the Circuit Court of the District of Columbia. They filed a petition for writ of habeas corpus in the Supreme Court. The Court, in an opinion by Mr. Chief Justice Marshall, affirmed its jurisdiction to issue habeas corpus to persons in custody by order of federal trial courts. Then, following arguments on the Fourth Amendment requirement of probable cause, the Court surveyed the evidence against the prisoners and held that it did not establish probable cause that they were guilty of treason. The prisoners were discharged.

       See also N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 15-16 (1937). A similar procedure at common law, the warrant for recovery of stolen goods, is said to have furnished the model for a “reasonable” search under the Fourth Amendment. The victim was required to appear before a justice of the peace and make an oath of probable cause that his goods could be found in a particular place. After the warrant was executed, and the goods seized, the victim and the alleged thief would appear before the justice of the peace for a prompt determination of the cause for seizure of the goods and detention of the thief. 2 M. Hale, supra, at 149-152; T. Taylor, Two Studies in Constitutional Interpretation 2A-25, 39-40 (1969); see Boyd v. United States, 116 U. S. 616, 626-629 (1886).

       A person arrested under a warrant would have received a prior judicial determination of probable cause. Under Fla. Rule Crim. Proc. 3.120, a warrant may be issued upon a sworn complaint that states facts showing that the suspect has committed a crime. The magistrate may also take testimony under oath to determine if there is reasonable ground to believe the complaint is true.

       By contrast, the Court has held that an indictment, “fair upon its face,” and returned by a “properly constituted grand jury,” conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry. Ex parte United States, 287 U. S. 241, 250 (1932). See also Giordenello v. United States, 357 U. S. 480, 487 (1958). The willingness to let a grand jury’s judgment substitute for that of a neutral and detached magistrate is attributable to the grand jury’s relationship to the courts and its historical role of protecting individuals from unjust prosecution. See United States v. Calandra, 414 U. S. 338, 342-346 (1974).

       The Court had earlier reached a different result in Ocampo v. United States, 234 U. S. 91 (1914), a criminal appeal from the Philippine Islands. Interpreting a statutory guarantee substantially identical to the Fourth Amendment, Act of July 1, 1902, § 5, 32 Stat. 693, the Court held that an arrest warrant could issue solely upon a prosecutor’s information. The Court has since held that interpretation of a statutory guarantee applicable to the Philippines is not conclusive for interpretation of a cognate provision in the Federal Constitution, Green v. United States, 355 U. S. 184, 194-198 (1957). Even if it were, the result reached in Ocampo is incompatible with the later holdings of Albrecht, Coolidge, and Shadwick.

       Because the standards are identical, ordinarily there is no need for further investigation before the probable cause determination can be made.
      “Presumably, whomever the police arrest they must arrest on 'probable cause.' It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on 'probable cause.’ ” Mallory v. United States, 354 U. S. 449, 456 (1957).

       In Morrissey v. Brewer, 408 U. S. 471 (1972), and Gagnon v. Scarpelli, 411 U. S. 778 (1973), we held that a parolee or probationer arrested prior to revocation is entitled to an informal preliminary hearing at the place of arrest, with some provision for live testimony. 408 U. S., at 487; 411 U. S., at 786. That preliminary hearing, more than the probable cause determination required by the Fourth Amendment, serves the purpose of gathering and preserving live testimony, since the final revocation hearing frequently is held at some distance from the place where the violation occurred. 408 U. S., at 485; 411 U. S., at 782-783, n. 5. Moreover, revocation proceedings may offer less protection from initial error than the more formal criminal process, where violations are defined by statute and the prosecutor has a professional duty not to charge a suspect with crime unless he is satisfied of probable cause. See ABA Code of Professional Responsibility DR 7-103 (A) (Final Draft 1969) (a prosecutor “shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause”); American Bar Association Project on Standards for Criminal Justice, The Prosecution Function §§ 1.1, 3.4, 3.9 (1974); American College of Trial Lawyers, Code of Trial Conduct, Rule 4 (c) (1963).

       Criminal justice is already overburdened by the volume of cases and the complexities of our system. The processing of misdemeanors, in particular, and the early stages of prosecution generally are marked by delays that can seriously affect the quality of justice. A constitutional doctrine requiring adversary hearings for all persons detained pending trial could exacerbate the problem of pretrial delay.

       Several States already authorize a determination of probable cause at this stage or immediately thereafter. See, e. g., Hawaii Rev. Stat. §§ 708-9 (5), 710-7 (1968); Vt. Rules Crim. Proc. 3 (b), 5 (c). This Court has interpreted the Federal Rules of Criminal Procedure to require a determination of probable cause at the first appearance. Jaben v. United States, 381 U. S. 214, 218 (1965); Mallory v. United States, 354 U. S., at 454.

       Under the Uniform Rules of Criminal Procedure (Proposed Final Draft 1974), a person arrested without a warrant is entitled, “without unnecessary delay,” to a first appearance before a magistrate and a determination that grounds exist for issuance of an arrest warrant. The determination may be made on affidavits or testimony, in the presence of the accused. Rule 311. Persons who remain in custody for inability to qualify for pretrial release are offered another opportunity for a probable cause determination at the detention hearing, held no more than five days after arrest. This is an adversary hearing, and the parties may summon witnesses, but reliable hearsay evidence may be considered. Rule 344.
      The ALI Model Code of Pre-arraignment Procedure (Tent. Draft No. 5, 1972, and Tent. Draft No. 5A, 1973) also provides a first appearance, at which a warrantless arrest must be supported by a reasonably detailed written statement of facts. §310.1. The magistrate may make a determination of probable cause to hold the accused, but he is not required to do so and the accused may request an attorney for an “adjourned session” of the first appearance to be held within two “court days.” At that session, the magistrate makes a determination of probable cause upon a combination of written and live testimony:
      “The arrested person may present written and testimonial evidence and arguments for his discharge and the state may present additional written and testimonial evidence and arguments that there is reasonable cause to believe that he has committed the crime of which he is accused. The state’s submission may be made by means of affidavits; and no witnesses shall be required to appear unless the court, in the light of the evidence and arguments submitted by the parties, determines that there is a basis for believing that the appearance of one or more witnesses for whom the arrested person seeks subpoenas might lead to a finding that there is no reasonable cause.” § 310.2 (2) (Tent. Draft No. 5A, 1973).

       Because the probable cause determination is not a constitutional prerequisite to the charging decision, it is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial. There are many kinds of pretrial release and many degrees of conditional liberty. See 18 U. S. C. § 3146; American Bar Association Project on Standards for Criminal Justice, Pretrial Release § 5.2 (1974); Uniform Rules of Criminal Procedure, Rule 341 (Proposed Final Draft 1974). We cannot define specifically those that would require a prior probable cause determination, but the key factor is significant restraint on liberty.

       In his concurring opinion, Mr. Justice Stewart objects to the Court's choice of the Fourth Amendment as the rationale for decision and suggests that the Court offers less procedural protection to a person in jail than it requires in certain civil cases. Here we deal with the complex procedures of a criminal case and a threshold right guaranteed by the Fourth Amendment. The historical basis of the probable cause requirement is quite different from the relatively recent application of variable procedural due process in debtor-creditor disputes and termination of government-created benefits. The Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the “process that is due” for seizures of person or property in criminal cases, including the detention of suspects pending trial. Part II-A, supra. Moreover, the Fourth Amendment probable cause determination is in fact only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct. The relatively simple civil procedures (e. g., prior interview with school principal before suspension) presented in the cases cited in the concurring opinion are inapposite and irrelevant in the wholly different context of the criminal justice system.
      It would not be practicable to follow the further suggestion implicit in Mr. Justice Stewart’s concurring opinion that we leave for another day determination of the procedural safeguards that are required in making a probable cause determination under the Fourth Amendment. The judgment under review both declares the right not to be detained without a probable cause determination and affirms the District Court’s order prescribing an adversary hearing for the implementation of that right. The circumstances of the case thus require a decision on both issues.