2008-08-13_Jack_Thomas_v_COH_-_Motion_for_Summary_Judgment

Home

Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 20 of 27 While the consequences of unfounded criminal charges are surely grave, the Fourth Amendment adequately covers constitutional interests in the pre-trial exercise of governmental control over a person or property. A groundless charging decision may abuse the criminal process, but does not, in and of itself, violate the Fourth Amendment absent a significant restriction on liberty. Nor does the Fourteenth Amendment provide a substantive due process right to be free from prosecution without probable cause, the Supreme Court, however, left open the possibility of such a claim under the Fourth Amendment. Albright v Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 812 (1994). The evidence clearly establishes that Plaintiff was never taken into custody, was never arraigned nor was his freedom of movement restricted in any significant way. 2. No Fifth Amendment Double Jeopardy Violation. A violation of the Fifth Amendment to the United States Constitution cannot be premised on the pretrial charging of a defendant. It is well established that the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Jeopardy is said to "attach" when a defendant is "put to trial." Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 105 5, 4062, 43 L.Ed.2d 265 (1975) (observing that the concept of"attachment of jeopardy" defines a point in criminal proceedings at which the purposes and policies of the Double Jeopardy Clause are implicated and 13