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-
- LEGAL BRIEF
-
- By
-
- Special Agent Jeffrey Higginbotham,
- Legal Instructor, FBI Academy
-
-
- In May 13, 1991, the U.S. Supreme Court decided in "County
- of Riverside v. McLaughlin" that the U.S. Constitution requires
- a judicial determination of probable cause within a prompt
- period of time following warrantless arrests. In effect, the
- Court established a maximum 48-hour period, including
- intervening holidays and weekends, in which persons arrested
- without a warrant are entitled to a probable cause
- determination.
-
- The Court stated that a 48-hour standard recognizes the
- existence of some unavoidable delay following the arrest caused
- in transporting arrested persons, handling bookings and
- late-night bookings when no magistrate is readily available, and
- having the arresting officer present, who may otherwise be
- occupied with other duties. In its decision, the Court noted,
- "[A] jurisdiction that provides judicial determinations of
- probable cause within 48 hours of arrest will, as a general
- matter, comply with the promptness requirement."
-
- The Court cautioned, however, that a probable cause
- determination held within 48 hours could be found to be
- unreasonable if the delay was for the "purpose of gathering
- additional evidence to justify the arrest...motivated by ill
- will against the arrested individual, or delay for delay's
- sake." The Court also stated that if the probable cause
- determination is delayed beyond 48 hours, the "burden shifts to
- the government to demonstrate the existence of a bona fide
- emergency or other extraordinary circumstance."
-
- County of Riverside v. McLaughlin may require some law
- enforcement organizations to modify their post-warrantless
- arrest practices to ensure that a mechanism exists for a
- judicial determination of probable cause within 48 hours of a
- warrantless arrest. This constitutional requirement for a
- prompt judicial determination of probable cause only applies
- where the arrested person remains in custody. It is advisable
- for law enforcement organizations to coordinate all such
- judicial determinations with the appropriate prosecuting
- attorney.
-
-