Fourth Amendment Whack-A-Mole: The Surprising Persistence Of Constitutionally Problematic “48-Hour Holds”

Over the past several decades, in a little-noticed and surprisingly widespread practice, police have detained suspects “on suspicion,” and held them for up to 48 hours without charging them with a crime, in order for the police to continue their investigation of the suspect. At the end of the prescribed period, the suspect would either be charged or released. Despite repeated (though sporadic) criticism of the practice by courts, the bar, and the media, this publicly acknowledged, routinized procedure persisted, resulting in thousands of such detentions. Indeed, it continues in some jurisdictions today.

These “48-hour holds,” as they are sometimes called, violate several norms of fundamental fairness. Examination of judicial findings, police records, and press coverage confirms that in many if not most of these cases, the suspects are detained without probable cause, the minimum level of suspicion constitutionally required to hold someone against their will for more than a few minutes. Even with probable cause, deliberately holding someone without charge is a law enforcement “end run” around two other constitutional norms. First, it postpones starting the clock for a prompt bail determination. Second, it delays the point at which the Sixth Amendment right to counsel attaches, giving police a few extra days to “sweat” the defendant without defense counsel present.

In its recent investigation of police practices in Ferguson, Missouri, the U.S. Justice Department noted Ferguson’s use of a similar practice as evidence of a pattern and practice of civil rights violations. See http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf , at 22-23 (describing Ferguson use of “holds” sometimes called “wanteds” and “stop orders” as a means to arrest and interrogate without probable cause, and as an improper substitute for judicially-approved warrants). The report cited this author’s work.Id. Ultimately, the holds resemble nothing so much as the “investigative detentions” practiced in other countries but which have long been outside the traditions of the American criminal justice system. Brown v. Illinois, 422 U.S. 590, 605 (1975) (arrest “both in design and execution. . . investigatory” was unconstitutional).

Prevalence

Forty-eight-hour holds are the exception, not the rule, in America. Nonetheless, within the last few decades and fairly recently, pre-charge holding practices have been prevalent in major U.S. local jurisdictions such as St. Louis, Detroit, Chicago, New Orleans, and Memphis. See United States v. Roberts, 928 F. Supp. 910, 915, 932-33 (W.D. Mo. 1996) (Missouri cities); In Re Conard, 944 S.W.2d 191, 193-194 (Mo. 1997) (same); Davis v. City of Detroit, No. 98-1254, 1999 WL 1111482, at *1 (6th Cir. Nov. 23, 1999) (Detroit);Bullock v. Dioguardi, 847 F. Supp. 553, 563-64 (N.D. Ill. 1993) (Chicago);State v. Wallace, 25 So.3d 720, 724-25 (La. 2009) (New Orleans); Lawrence Buser et al., Sheriff’s Office Will No Longer Hold Prisoners for 48-Hour Detentions, Com. Appeal (Memphis), Mar. 30, 2012, http://www.commercialappeal.com/ news/2012/mar/30/sheriffs-office-no-longer-hold-prisoners-detention (Memphis) (Buser article). Often, as in Chicago, Memphis, and Austin, the practice continued despite criticism in court rulings of its unconstitutional nature. See Bostic v. Chicago, No. 86 C 5482, 1991 WL 96430, at *3 (N.D. Ill. May 23, 1991); Buser article, supra; E-mail from Prof. Stephen Russell, Indiana University-Bloomington School of Law, former Municipal Court Judge, Austin, Texas (July 11, 2012, 7:33 AM) (on file with author). Sometimes, even after officials are forced to discontinue the practice, they continue to defend it, leaving open the question of whether the practice will resume. Buser article, supra.

The practices continue in recent years. As recently as 2012, Cleveland police were routinely holding suspects without charge for up to 72 hours. Email from Prof. Yuri Linetsky, Case Western Reserve University School of Law, Cleveland, Ohio (July 18, 2012, 1:38 PM) (on file with author). The police department taught this as doctrine to police academy cadets. Id. Documented instances from New Orleans as recent as 2009 are even worse than those described above: in New Orleans, after a warrantless arrestee has been detained for a day or so and then brought before a magistrate, the magistrate might find a lack of probable cause, but still order the defendant held for an additional 48 hours. See State v. Wallace, 25 So.3d 720, 724-25 (La. 2009). A 2012 survey in Tennessee showed it in wide use in a number of counties and judicial districts. Telephone Survey conducted by Razvan Axente with Tennessee Public Defenders and District Attorneys, May 7, 2012 through May 25, 2012 (on file with author).

The Necessity of Probable Cause

The practice seems to be based on a basic misunderstanding of Riverside v. McLaughlin, in which the Supreme Court held that warrantless arrestees “must promptly be brought before a neutral magistrate for a judicial determination of probable cause,” with delays of over 48 hours presumptively non-“prompt.” County of Riverside v. McLaughlin, 500 U.S.44, 53, 56 (1991). That language attempted to place an outer boundary on how long someone arrested without a warrant could be held before being brought before a judge to determine if there was probable cause to hold him. The Court in McLaughlin expressly warned against a purposeful delay “for the purpose of gathering additional evidence to justify the arrest.” Id. Nonetheless, police in many jurisdictions interpreted McLaughlin as a license to hold anyone for up to 48 hours on less than probable cause.

The law does recognize certain limited instances in which police may detain someone on less than probable cause. Under Terry v. Ohio, 392 U.S. 1, 23-24 (1968), police may execute an “investigative stop” based on “reasonable suspicion,” an evidentiary standard lower than probable cause. But they may only detain the suspect where he is, and only for a brief time, usually no longer than 20 minutes or so. See Model Code of Pre-Arraignment Procedure §1110.2(1) (1975); United States v. Sharpe, 470 U.S.675, 683 (1985). But absent specialized situations like “material witness” statutes not relevant here, to force someone away from where they are and confine them in a holding cell for one or more days requires ”probable cause,” the same standard needed to indict someone. This is a foundational requirement of the American criminal justice system.

Where they are used, these holds routinely take place with less than probable cause, as the Justice Department report on Ferguson noted. In Memphis, for example, judicial reports describing the practice acknowledge that the lower “reasonable suspicion” standard is used. Memorandum from General Sessions Criminal Court Judicial Commissioners (Shelby County, TN) to General Sessions Judge Larry Potter (n.d.) (on file with author). In Lauderdale County, Tennessee, a federal court found that officials openly admitted that they used a standard lower than probable cause. Rhodes v. Lauderdale County, No. 2:10-cv-02068-JPM-dkv (W.D. Tenn. Sept. 24, 2012).

Thus, by using the “hold” procedure, police get to detain and grill a suspect for two full days, without getting a warrant, or an indictment, or even relying on one of the recognized exceptions to the warrant requirement—each of which requires probable cause.

Arrests Without Charge

Even where the "holds" occur based on probable cause, they still represent a formalized procedure for arresting people without charge. This runs contrary to a basic and longstanding principle of the Anglo-American justice system. Dissenting in Rothgery v. Gillespie County, 554 U.S. 191 (2008), a Sixth Amendment right to counsel case, Justice Thomas drew from historical sources, quoting with approval Blackstone's comment that "a person could not be arrested and detained without a 'charge' or 'accusation,' i.e., an allegation…that the person had committed a crime." Id. at 219. This point, so fundamental as to be assumed, is not often stated explicitly in the case law. It is, literally, hornbook law. See Yale Kamisar et al., Modern Criminal Procedure: Cases, Comments, Questions 8 (12th ed. 2008); Wayne R. LaFave et al, Criminal Procedure 9 (5th ed. 2009).

True, the Court has stated that while this charge would ordinarily be made at the point of arrest, "we have never held that to be constitutionally required." Devenpeck v. Alford, 543 U.S. 146, 155 (2004). But the Court cautioned that the warrantless arrestee "should not be left to wonder for long," because, under McLaughlin, they must be "promptly" brought before a magistrate. Id. at 155 n.3. Since under McLaughlin this must normally occur within 48 hours, and more quickly if feasible, see McLaughlin, 500 U.S. at 57 (stating that even within 48 hours, defendant can prove a violation by showing that the hearing was "delayed unreasonably"), a blanket policy of purposefully waiting at least 48 hours before informing warrantless arrestees of the charge is inconsistent with Supreme Court doctrine. Lower courts have so ruled. See United States v. Roberts, 928 F.Supp. 910, 915 (W.D. Mo. 1996); Willis v. Bell, 726 F. Supp. 1118, 1125, 1127 n.20 (N.D. Ill. 1989).

Such a purposeful delay also violates the federal, and many state, rules of criminal procedure, which require that warrantless arrestees be brought before the court "without unnecessary delay." See, e.g., Fed. R. Crim. P. 5(a); Tenn. R. Crim. P. 5(a). While case law has not definitively set a time limit on this rule of criminal procedure requirement, a purposeful, routinized delay of 48 hours hardly seems "necessary."

Prompt Bail Determination

The holds also interfere with an arrestee's right to a prompt bail determination. As currently practiced, a suspect subject to a 48-hour hold cannot get bail; they are stuck there for at least the entire 48 hours. And, while the law is not clear on exactly how long is too long to wait before a detainee gets a bail hearing, due process requires that bail hearings, like probable cause hearings, occur without unnecessary delay. United States v. Salerno, 481 U.S. 739, 954-55 (1987). Indeed, some courts have analogized the bail hearing deadline to the probable cause hearing deadline, including both the presumption of validity if it occurs prior to 48 hours, and the notion that courts should not countenance delay without a valid reason –like the unavailability of a magistrate, or the desire to combine a bail hearing with another scheduled pretrial hearing. See, e.g., Hopkins v. Bradley County, 338 S.W.3d 529, 538-39 (Tenn. Ct. App. 2010) (stating that a bail hearing may be delayed up to 48 hours "absent improper motive").

The 48-hour hold procedure allows detention for an initial 48 hours before the prompt bail determination clock even starts ticking. By stopping the clock, the police buy an extra 48 hours with which they can hold and interrogate a suspect. This may partially explain its appeal to law enforcement despite frequent cautions about the procedure from courts.

Right To Counsel

A second significant advantage to law enforcement is the ability to interrogate suspects without defense counsel present. Again, under McLaughlin, warrantless arrestees must be brought before a magistrate for a probable cause determination "without unnecessary delay." In some instances—for example, where a magistrate is readily available, and there are no other valid administrative reasons for postponing the probable cause hearing—a defendant will be entitled to be brought before the magistrate within less than 48 hours. Once that occurs, the Sixth Amendment right to counsel attaches. Moran v. Burbine,475 U.S. 412, 428. At that point, police may not interrogate the defendant outside the presence of defense counsel, absent a valid waiver. Id.

As with the bail determination clock, the 48-hour hold buys time before this right to counsel consideration kicks in. It affords more time for the police to "sweat" the suspect outside the presence of defense counsel, in order to persuade the detainee to make an admission, or make a deal.

True, "hold" detainees are in custody and thus enjoy Miranda protections. But all this means, in most cases, is that the suspect is informed of his rights. Unless the detainee is savvy enough to affirmatively invoke (i) his Fifth Amendment right to silence or (ii) Fifth Amendment right to counsel by saying the semantic equivalent of "I don't want to answer any more questions" or "I want a lawyer," respectively, then interrogation of the non-savvy suspect may continue unabated. See, e.g., Davis v. United States, 512 U.S. 452, 459 (1994).

Conclusion

48-hour holds conflict with fairly basic constitutional norms. They provide for detention without charge—and often, without probable cause. They needlessly delay the time before which a suspect gets a hearing on probable cause, a bail determination, and the interrogation protections of the Sixth Amendment right to counsel.

Given all this, it is remarkable and puzzling that they persisted in so many jurisdictions for so long, and that they appear to be continuing today in a number of jurisdictions. Those concerned with proper criminal procedures should call a "hold" on their use.

A version of this article appeared as Steven J. Mulroy, ‘Hold’ On: The Remarkably Resilient, Constitutionally Dubious ’48-Hour Hold,’ 63 Case Western Reserve L. Rev. 815 (2013).