twenty eight days as a result of the appellant county prosecutor's interference with his arraignment on four charges for which he was arrested without warrant what do you say he was arrested on those charges if a police officer thinks that someone has committed a number of crimes and he goes to that person's door and arrests him and says i think i've probably cause that you've committed a million crimes and then they show up as they're required to do at a prosecutor's office preparatory to going to a judge and the prosecutor says look i don't wan even evaluate whether you've got a problem causing all these things one will do let's just go before the judge and justify the arrest on the basis of one of the things you think you have probable cause on why is that not a prosecutor decision about what charges to pursue or not pursue at that time so in this case there are facts alleged in the complaint that the criminal complaints were paired well in advance let's let let's stick with my example first the officer thinks and tells the suspect that he or she has probable cause to believe there are multiple crimes is there some obligation on the part of the officer to have him arraigned on everything that the officer thinks he may have done or thinks he has probable cause to believe there is an obligation for him to be arraigned on those charges upon which he will be prosecuted well upon which at that moment someone wants to prosecute him the prosecutor could decide let's put these all to a grand jury and see what the grand jury thinks before we arrange anybody or proceed further with anything what we're here to do today the prosecutor might decide is to have a magistrate determine whether there is probable cause that justified that arrest and justifies going forward with a proceeding if the prosecutor makes that decision and again for the moment i'm saying let's assume the officer did not write up those charges in some way or swear an affidavit but just told the suspect i think i've got probable cause for a thousand crimes by you cause determined on that charge still does not foreclose claims for fourth amendment violations pertain to continued detention that's not justified why would the detention not be justified if the judge says you have probable cause to have arrested this man maybe you don't in fact when i look at it the prosecutor and then the judge might say i think the officer was wrong about everything except i do find that under new york state law there is probable cause to believe that the defendant committed a totally different charge violation and therefore the arrest is justified and the on that claim you can proceed and let's go and set bail now the in a recent case menu over city of joy illinois the supreme court held that even when we perceive things are properly commenced there can still be fourth amendment violation if you do all kinds of violations the violation you are raising is a violation that you say the officers with the collusion of the prosecutor were required to present to judges probable cause for various crimes that the prosecutor decided at that moment not to bring forward so on i'm not asking about whether there can still be fourth amendment violations and continued detention i'm asking you about this violation is that a violation the record reflects that the prosecutor didn't make a determination you know i keep asking you a question about my hypothetical that i'm going to ask you about some of the actual facts i want to know are you saying that the prosecutor can decide we're not going to think about those other charges now we're going to justify this arrest based on one thing and that's going to be good enough and i don't need to address the other charges i'm not saying you don't have probable cause officer jones i'm not saying you do i'm saying let's just do one today and that will get us by that's good enough for today's proceeding that's good enough to get us bail will even to tell the judge we've actually got a few other things up our sleeve this investigation is continuing and see what the judge thinks about what under those circumstances the bail should be is there anything that has happened that violates anybody's rights a and b even if there were is that not a decision that a prosecutor makes about how to proceed with bringing charges in the case to answer your first question that is a appropriate way of perceiving an answer your second question  i'm sorry can your isn't it a decision for the prosecutor to make not for the police officer to make at that point whether we're proceeding on one charge or on six or on five hundred it is absolutely the prosecutor's decision to determine whether they're proceeding on one or five or more tension and that and that decision is changeable subject to change today we're proceeding on one charge but the prosecutor is also making a tactical decision and we're going to investigate further we're going to present to the grand jury the other five where the other and that wasn't and that is correct but once the prosecutor determines that they will be proceeding on those charges the individual has a right to be arraigned was he not arraigned after there was an indictment he was arrai following the indictment now wasn't that the point at which it was determined by a grand jury that they were going to proceed on three charges not on six not on a thousand not on whatever the cop thought might have been appropriately charged but on three separate charges but that still doesn't retroactively justify the failure for him to be able to make bail out of his liberty will have any why wasn't he the reason he wasn't able to make bail is because the judge who knew that there were other possible charges took all of the circumstances into account and that they'll know maybe he shouldn't have sent they'll taking those other charges into account or maybe even taking those other charges into account he should have said a lower bail but that's not what we hear about we're here because you are asserting that there was an obligation on the officers with which the prosecutor interfered to hand him a rained on charges that the officer thought there was probable cause to pursue but that for whatever reason the prosecutor decided not to pursue at that time not to file at that time and that's so you know because the next question i was going to ask you is and so why would it make a difference to go to the facts of this case that the officer took the trouble of composing an affidavit which he had in his pocket  the whole time saying here's my problem because for some of the other charges an affidavit that is never filed anywhere that never becomes the basis for a charge in any court because the basis for the charges a grand jury that's based on some of the same charges i mean the the officer did present a charge the coroner in fact was a court order to have mr wrong korea arraigned on those other charges so there is some violation of a state court order is what you're really complaining about there is a larger violation of his right to obtain pretrial release  know his his right to be free from incarceration was in frankly whether any other actions that they you allege the prosecutors took apart from failing to have a marine i mean it's troubling that he was arrested magistrate judge here said it was without probable cause he was unable to obtain release for twenty eight days and you know the magistrate judge in the district court went over the circumstances in in some detail but in addition to a judge lynch is been focusing on this failure to arraign and the nature of the your argument about an obligation that they may have that you believe they had to rain was there any other intervention or any other action that they took to prevent  release yes your honor the county prosecutors is alleged to actively instructed the police officers not to have him arraigned on the structures and they actively instructed they said you know you're going to take him to whatever other counties they were nearby to have a marine but we don't want to do that yes they they said to hold off on having him arraigned and they also contacted the crease town clerk and had the clerk hold off on scheduling mr of course arraignment and how would that have led to a lower bail they had let him go to greece well it's not just that it may have led to a lower bail but there's a certain and so uncertain news injected into the process that caused the belmont's woman to refrain from extending it is that not the same uncertainty that exists every day in this courthouse when an assistant united states attorney says to a magistrate judge judge this fellow is here here's the complaint that we're filing it's got this one charge you should understand that there's a continuing investigation and that we think this is the tip of an iceberg we're presenting matters to the grand jury there may be more charges in this case and at that point a couple of things happen one is the bondsman my thing oh my god this guy is going to have all kinds of reason to run i'm not going to present in the no matter what bail the magistrate judge sets i'm not going to get involved with this one because i can see that there is trouble ahead how is that different than what happened here i think in this hypothetical scenario that you're describing it's clear that those charges haven't been initiated and are already forming the basis for his prosecution i think that is the uncertainty here whether he was or is not actually charged and facing prosecution on those charges and that he's only a prosecutor still at any point in that process going in judge lynch is hypothetical  still have the right if you will as a prosecutor it's part of his or her job to ultimately determine whether to bring those old other charges so argue in the same  the your correct it is the prosecutor's role to decide whether to bring those charges but the instruction here was not whether to bring or not bring the charges the instruction here was to hold off and having him arraigned on charges that were police officer had in mind entirely with respect to all of the charges there are other claims at issue and involving malicious prosecution and lack of probable cause for all of the chargers even the ones that were initially yes and those charges those claims are not brought against the prosecutors the other claims those other claims are going against yes these are they can suppose hears and that's because it's the prosecutor's job to decide whether there is probable cause and to proceed