Trial Division

PCA NO. 249-93


     This matter came on for hearing on September 23, 1993, expedited on the petition for issuance of a Writ of Habeas Corpus.
     The petition recites that the petitioner Mary Berman was arrested by the State Police Department in connection with the execution of a search warrant on her premises at 10:00 am September 23, 1993. No arrest warrant was issued. The petitioner contends that her arrest  was unnecessary, that the issuance of a summons would be sufficient  to require her appearance in court. She alleged that she had an infant who was being cared for during her detention by a baby-sitter. She further alleged that in the absence of an order of this Court, she would be detained by the Police Department over night. The Attorney General objected to her release for two primary reasons. First, that investigation in connection with search warrant had not been completed, second, that the release of the petitioner would enable her to conceal the firearms being searched for and hinder the efforts of the Government to seize the items which were believed to be illegally possessed by the husband of the petitioner. In support of its argument, the Attorney General presented a firearm identification card, which was said to have been issued to Kadalino Damarlane, the husband of the petitioner. The identification card showed that five firearms had been registered in the name of Kadalino Damarlane.

     The scope and purpose of a writ of habeas corpus is to inquire into the cause of a person's imprisonment and restraint, 9 TTC 101. The usual procedure on an application for a writ of habeas corpus is for the court to issue the writ and on the return, to hear and dispose of the case. The court may, however; without issuing the writ, consider and determine whether the facts alleged, if proved, would warrant discharge of the prisoner. In this case, no formal writ was issued upon the filling of the petition. However, through the Clerk of Courts, the Attorney General was noticed to appear for this hearing. The defendant with counsel John A. Brackett, Esq., were also present.

      I find it as a fact that the petitioner was arrested without warrant, but incident  to the execution of a search warrant. While the Attorney General represented that it had not completed investigation under the search warrant, and therefore, desired that the court reject the petition for habeas corpus. I find that it may be unnecessary to continue to detain the petitioner who had been advised by her attorney not to answer any questions in the investigation.

     I hold further that the Attorney General failed to make sufficient proof that the indentification card issued to Kadalino Damarlane had in fact been revoked or suspended so that the danger of the petitioner concealing the firearms registered thereon may be a legitimate concern. The paramount concern that the court had in  relation to the petition was the welfare of the 9- months old child of the petitioner who had been deprived of her mother during the detention of the petitioner, and the possible effect upon the infant if this court should permit continued detention of the petitioner.
     Accordingly, I find no legitimate reason to support a continued confinement or restraint of the petitioner. It is therefore, Ordered that the Attorney General cause the release of the petitioner from further arrest and detention.

Dated: September 23, 1993  
JUDAH C. JOHNNY                                             
Acting Chief Justice