County of Riverside v. McLaughlin/Dissent Scalia

by Antonin Scalia

Justice SCALIA, dissenting.

The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that "when I was young, I probably let stand some convictions that should have been overturned, and when I was old, I probably set aside some that should have stood; so overall, justice was done." I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (right to abortion does exist), with Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (right to be confronted with witnesses, U.S. Const.Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed.

The Court views the task before it as one of "balanc[ing] [the] competing concerns" of "protecting public safety," on the one hand, and avoiding "prolonged detention based on incorrect or unfounded suspicion," on the other hand, ante, at 52. It purports to reaffirm the " 'practical compromise' " between these concerns struck in Gerstein v. Pugh, 420 U.S. 103 , 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), ante, at 53. There is assuredly room for such an approach in resolving novel questions of search and seizure under the "reasonableness" standard that the Fourth Amendment sets forth. But not, I think, in resolving those questions on which a clear answer already existed in 1791 and has been generally adhered to by the traditions of our society ever since. As to those matters, the "balance" has already been struck, the "practical compromise" reached—and it is the function of the Bill of Rights to preserve that judgment, not only against the changing views of Presidents and Members of Congress, but also against the changing views of Justices whom Presidents appoint and Members of Congress confirm to this Court.

The issue before us today is of precisely that sort. As we have recently had occasion to explain, the Fourth Amendment's prohibition of "unreasonable seizures," insofar as it applies to seizure of the person, preserves for our citizens the traditional protections against unlawful arrest afforded by the common law. See California v. Hodari D., 499 U.S. 621 , 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). One of those—one of the most important of those—was that a person arresting a suspect without a warrant must deliver the arrestee to a magistrate "as soon as he reasonably can." 2 M. Hale, Pleas of the Crown 95, n. 13 (1st Am. ed. 1847). See also 4 W. Blackstone, Commentaries 289, 293; Wright v. Court, 107 Eng.Rep. 1182 (K. B. 1825) ("[I]t is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can"); 1 R. Burn, Justice of the Peace 276-277 (1837) ("When a constable arrests a party for treason or felony, he must take him before a magistrate to be examined as soon as he reasonably can") (emphasis omitted). The practice in the United States was the same. See e.g., 5 Am.Jur.2d, Arrest, §§ 76, 77 (1962); Venable v. Huddy, 77 N.J.L. 351, 72 A. 10, 11 (1909); Atchison, T. & S.F.R. Co. v. Hinsdell, 76 Kan. 74, 76, 90 P. 800, 801 (1907); Ocean S.S. Co. v. Williams, 69 Ga. 251, 262 (1883); Johnson v. Mayor and City Council of Americus, 46 Ga. 80, 86-87 (1872); Low v. Evans, 16 Ind. 486, 489 (1861); Tubbs v. Tukey, 57 Mass. 438, 440 (1849) (warrant); Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 254 (1940). Cf. Pepper v. Mayes, 81 Ky. 673 (1884). It was clear, moreover, that the only element bearing upon the reasonableness of delay was not such circumstances as the pressing need to conduct further investigation, but the arresting officer's ability, once the prisoner had been secured, to reach a magistrate who could issue the needed warrant for further detention. 5 Am.Jur.2d, Arrest, supra, §§ 76, 77 (1962); 1 Restatement of Torts § 134, Comment b (1934); Keefe v. Hart, 213 Mass. 476, 482, 100 N.E. 558, 559 (1913); Leger v. Warren, 62 Ohio St. 500, 57 N.E. 506, 508 (1900); Burk v. Howley, 179 Pa. 539, 551, 36 A. 327, 329 (1897); Kirk & Son v. Garrett, 84 Md. 383, 405, 35 A. 1089, 1091 (1896); Simmons v. Vandyke, 138 Ind. 380, 384, 37 N.E. 973, 974 (1894) (dictum); Ocean S.S. Co. v. Williams, supra, at 263; Hayes v. Mitchell, 69 Ala. 452, 455 (1881); Kenerson v. Bacon, 41 Vt. 573, 577 (1869); Green v. Kennedy, 48 N.Y. 653, 654 (1871); Schneider v. McLane, 3 Keyes 568 (NY App. 1867); Annot., 51 L.R.A. 216 (1901). Cf. Wheeler v. Nesbitt, 24 How. 544, 552, 16 L.Ed. 765 (1860). Any detention beyond the period within which a warrant could have been obtained rendered the officer liable for false imprisonment. See, e.g., Twilley v. Perkins, 77 Md. 252, 265, 26 A. 286, 289 (1893); Wiggins v. Norton, 83 Ga. 148, 152, 9 S.E. 607, 608-609 (1889); Brock v. Stimson, 108 Mass. 520 (1871); Annot., 98 A.L.R.2d 966 (1964).^[1]

We discussed and relied upon this common-law understanding in Gerstein, see 420 U.S., at 114-116, 95 S.Ct., at 863-864, holding that the period of warrantless detention must be limited to the time necessary to complete the arrest and obtain the magistrate's review.

"[A] policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody . . . the reasons that justify dispensing with the magistrate's neutral judgment evaporate." Id., at 113-114, 95 S.Ct., at 863 (emphasis added).

We said that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty," id., at 114, 95 S.Ct., at 863, "either before or promptly after arrest," id., at 125, 95 S.Ct., at 869. Though how "promptly" we did not say, it was plain enough that the requirement left no room for intentional delay unrelated to the completion of "the administrative steps incident to arrest." Plain enough, at least, that all but one federal court considering the question understood Gerstein that way. See, e.g., Gramenos v. Jewel Companies, Inc., 797 F.2d 432 , 437 (CA7 1986), cert. denied, 481 U.S. 1028 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987); Bernard v. Palo Alto, 699 F.2d 1023 , 1025 (CA9 1983) (per curiam); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133 , 1140 (CA4 1982); Mabry v. County of Kalamazoo, 626 F.Supp. 912, 914 (WD Mich.1986); Sanders v. Houston, 543 F.Supp. 694, 699-701 (SD Tex.1982), aff'd, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000, 1004 (DC 1978). See also People ex rel. Maxian v. Brown, 164 App.Div.2d 56, 62-64, 561 N.Y.S.2d 418, 421-422 (1990), aff'd, 77 N.Y.2d 422, 568 N.Y.S.2d 575, 570 N.E.2d 223 (1991); Note, Williams v. Ward: Compromising the Constitutional Right to Prompt Determination of Probable Cause Upon Arrest, 74 Minn.L.Rev. 196, 204 (1989). But see Williams v. Ward, 845 F.2d 374 (CA2 1988), cert. denied, 488 U.S. 1020 , 109 S.Ct. 818, 102 L.Ed.2d 807 (1989).

Today, however, the Court discerns something quite different in Gerstein. It finds that the plain statements set forth above (not to mention the common-law tradition of liberty upon which they were based) were trumped by the implication of a later dictum in the case which, according to the Court, manifests a "recognition that the Fourth Amendment does not compel an immediate determination of probable cause upon completing the administrative steps incident to arrest." Ante, at 53 - 54 (emphasis added). Of course Gerstein did not say, nor do I contend, that an "immediate" determination is required. But what the Court today means by "not immediate" is that the delay can be attributable to something other than completing the administrative steps incident to arrest and arranging for the magistrate—namely, to the administrative convenience of combining the probable-cause determination with other state proceedings. The result, we learn later in the opinion, is that what Gerstein meant by "a brief period of detention to take the administrative steps incident to arrest" is two full days. I think it is clear that the case neither said nor meant any such thing.

Since the Court's opinion hangs so much upon Gerstein, it is worth quoting the allegedly relevant passage in its entirety.

"Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect's first appearance before a judicial officer, . . . or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention. Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." 420 U.S., at 123-125, 95 S.Ct., at 868-869 (footnotes omitted; emphasis added).

The Court's holding today rests upon the statement that "we recognize the desirability of flexibility and experimentation." But in its context that statement plainly refers to the nature of the hearing and not to its timing. That the timing is a given and a constant is plain from the italicized phrases, especially that which concludes the relevant passage. The timing is specifically addressed in the previously quoted passage of the opinion, which makes clear that "promptly after arrest" means upon completion of the "administrative steps incident to arrest." It is not apparent to me, as it is to the Court, that on these terms "[i]ncorporating probable cause determinations 'into the procedure for setting bail or fixing other conditions of pretrial release' . . . would be impossible," ante, at 54; but it is clear that, if and when it is impossible, Gerstein envisioned that the procedural "experimentation," rather than the Fourth Amendment's requirement of prompt presentation to a magistrate, would have to yield.

Of course even if the implication of the dictum in Gerstein were what the Court says, that would be poor reason for keeping a wrongfully arrested citizen in jail contrary to the clear dictates of the Fourth Amendment. What is most revealing of the frailty of today's opinion is that it relies upon nothing but that implication from a dictum, plus its own (quite irrefutable because entirely value laden) "balancing" of the competing demands of the individual and the State. With respect to the point at issue here, different times and different places—even highly liberal times and places—have struck that balance in different ways. Some Western democracies currently permit the executive a period of detention without impartially adjudicated cause. In England, for example, the Prevention of Terrorism Act 1989, §§ 14(4), 5, permits suspects to be held without presentation and without charge for seven days. 12 Halsbury's Stat. 1294 (4th ed. 1989). It was the purpose of the Fourth Amendment to put this matter beyond time, place, and judicial predilection, incorporating the traditional common-law guarantees against unlawful arrest. The Court says not a word about these guarantees, and they are determinative. Gerstein's approval of a "brief period" of delay to accomplish "administrative steps incident to an arrest" is already a questionable extension of the traditional formulation, though it probably has little practical effect and can perhaps be justified on de minimis grounds.^[2] To expand Gerstein, however, into an authorization for 48-hour detention related neither to the obtaining of a magistrate nor the administrative "completion" of the arrest seems to me utterly unjustified. Mr. McLaughlin was entitled to have a prompt impartial determination that there was reason to deprive him of his liberty—not according to a schedule that suits the State's convenience in piggybacking various proceedings, but as soon as his arrest was completed and the magistrate could be procured.

I have finished discussing what I consider the principal question in this case, which is what factors determine whether the postarrest determination of probable cause has been (as the Fourth Amendment requires) "reasonably prompt." The Court and I both accept two of those factors, completion of the administrative steps incident to arrest and arranging for a magistrate's probable-cause determination. Since we disagree, however, upon a third factor—the Court believing, as I do not, that "combining" the determination with other proceedings justifies a delay—we necessarily disagree as well on the subsequent question, which can be described as the question of the absolute time limit. Any determinant of "reasonable promptness" that is within the control of the State (as the availability of the magistrate, the personnel and facilities for completing administrative procedures incident to arrest, and the timing of "combined procedures" all are) must be restricted by some outer time limit, or else the promptness guarantee would be worthless. If, for example, it took a full year to obtain a probable-cause determination in California because only a single magistrate had been authorized to perform that function throughout the State, the hearing would assuredly not qualify as "reasonably prompt." At some point, legitimate reasons for delay become illegitimate.

I do not know how the Court calculated its outer limit of 48 hours. I must confess, however, that I do not know how I would do so either, if I thought that one justification for delay could be the State's "desire to combine." There are no standards for "combination," and as we acknowledged in Gerstein the various procedures that might be combined "vary widely" from State to State. 420 U.S., at 123, 95 S.Ct., at 868. So as far as I can discern (though I cannot pretend to be able to do better), the Court simply decided that, given the administrative convenience of "combining," it is not so bad for an utterly innocent person to wait 48 hours in jail before being released.

If one eliminates (as one should) that novel justification for delay, determining the outer boundary of reasonableness is a more objective and more manageable task. We were asked to undertake it in Gerstein, but declined—wisely, I think, since we had before us little data to support any figure we might choose. As the Court notes, however, Gerstein has engendered a number of cases addressing not only the scope of the procedures "incident to arrest," but also their duration. The conclusions reached by the judges in those cases, and by others who have addressed the question, are surprisingly similar. I frankly would prefer even more information, and for that purpose would have supported reargument on the single question of an outer time limit. The data available are enough to convince me, however, that certainly no more than 24 hours is needed.^[3]

With one exception, no federal court considering the question has regarded 24 hours as an inadequate amount of time to complete arrest procedures, and with the same exception every court actually setting a limit for a probable-cause determination based on those procedures has selected 24 hours. (The exception would not count Sunday within the 24-hour limit.) See Bernard v. Palo Alto, 699 F.2d, at 1025; McGill v. Parsons, 532 F.2d 484, 485 (CA5 1976); Sanders v. Houston, 543 F.Supp., at 701-703; Lively v. Cullinane, 451 F.Supp., at 1003-1004. Cf. Dommer v. Hatcher, 427 F.Supp. 1040, 1046 (ND Ind.1975) (24-hour maximum; 48 if Sunday included), rev'd in part, 653 F.2d 289 (CA7 1981). See also Gramenos v. Jewel Companies, Inc., 797 F.2d, at 437 (four hours "requires explanation"); Brandes, Post-Arrest Detention and the Fourth Amendment: Refining the Standard of Gerstein v. Pugh, 22 Colum.J.L. & Soc.Prob. 445, 474-475 (1989). Federal courts have reached a similar conclusion in applying Federal Rule of Criminal Procedure 5(a), which requires presentment before a federal magistrate "without unnecessary delay." See, e.g., Thomas, The Poisoned Fruit of Pretrial Detention, 61 N.Y.U.L.Rev. 413, 450, n. 238 (1986) (citing cases). And state courts have similarly applied a 24-hour limit under state statutes requiring presentment without "unreasonable delay." New York, for example, has concluded that no more than 24 hours is necessary from arrest to arraignment, People ex rel. Maxian v. Brown, 164 App.Div.2d, at 62-64, 561 N.Y.S.2d, at 421-422. Twenty-nine States have statutes similar to New York's, which require either presentment or arraignment "without unnecessary delay" or "forthwith"; eight States explicitly require presentment or arraignment within 24 hours; and only seven States have statutes explicitly permitting a period longer than 24 hours. Brandes, supra, at 478, n. 230. Since the States requiring a probable-cause hearing within 24 hours include both New York and Alaska, it is unlikely that circumstances of population or geography demand a longer period. Twenty-four hours is consistent with the American Law Institute's Model Code. ALI, Model Code of Pre-Arraignment Procedure § 310.1 (1975). And while the American Bar Association in its proposed rules of criminal procedure initially required that presentment simply be made "without unnecessary delay," it has recently concluded that no more than six hours should be required, except at night. Uniform Rules of Criminal Procedure, 10 U.L.A. App., Criminal Justice Standard 10-4.1 (Spec.Pamph.1987). Finally, the conclusions of these commissions and judges, both state and federal, are supported by commentators who have examined the question. See, e.g., Brandes, supra, at 478-485 (discussing national 24-hour rule); Note, 74 Minn.L.Rev., at 207-209.

In my view, absent extraordinary circumstances, it is an "unreasonable seizure" within the meaning of the Fourth Amendment for the police, having arrested a suspect without a warrant, to delay a determination of probable cause for the arrest either (1) for reasons unrelated to arrangement of the probable-cause determination or completion of the steps incident to arrest, or (2) beyond 24 hours after the arrest. Like the Court, I would treat the time limit as a presumption; when the 24 hours are exceeded the burden shifts to the police to adduce unforeseeable circumstances justifying the additional delay.

A few weeks before issuance of today's opinion there appeared in the Washington Post the story of protracted litigation arising from the arrest of a student who entered a restaurant in Charlottesville, Virginia, one evening, to look for some friends. Failing to find them, he tried to leave—but refused to pay a $5 fee (required by the restaurant's posted rules) for failing to return a red tab he had been issued to keep track of his orders. According to the story, he "was taken by police to the Charlottesville jail" at the restaurant's request. "There, a magistrate refused to issue an arrest warrant," and he was released. Washington Post, Apr. 29, 1991, p. 1. That is how it used to be; but not, according to today's decision, how it must be in the future. If the Fourth Amendment meant then what the Court says it does now, the student could lawfully have been held for as long as it would have taken to arrange for his arraignment, up to a maximum of 48 hours.

Justice Story wrote that the Fourth Amendment "is little more than the affirmance of a great constitutional doctrine of the common law." 3 J. Story, Commentaries on the Constitution 748 (1833). It should not become less than that. One hears the complaint, nowadays, that the Fourth Amendment has become constitutional law for the guilty; that it benefits the career criminal (through the exclusionary rule) often and directly, but the ordinary citizen remotely if at all. By failing to protect the innocent arrestee, today's opinion reinforces that view. The common-law rule of prompt hearing had as its primary beneficiaries the innocent—not those whose fully justified convictions must be overturned to scold the police; nor those who avoid conviction because the evidence, while convincing, does not establish guilt beyond a reasonable doubt; but those so blameless that there was not even good reason to arrest them. While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty, we today repudiate one of its core applications so that the presumptively innocent may be left in jail. Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days—never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as our own.

I respectfully dissent.

Notes

1. The Court dismisses reliance upon the common law on the ground that its "vague admonition" to the effect that "an arresting officer must bring a person arrested without a warrant before a judicial officer 'as soon as he reasonably can' " provides no more support than does Gerstein v. Pugh's, 420 U.S. 103 , 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), "promptly after arrest" language for the "inflexible standard" that I propose. Ante, at 55. This response totally confuses the present portion of my opinion, which addresses the constitutionally permissible reasons for delay, with Part II below, which addresses (no more inflexibly, I may say, than the Court's 48-hour rule) the question of an outer time limit. The latter—how much time, given the functions the officer is permitted to complete beforehand, constitutes "as soon as he reasonably can" or "promptly after arrest"—is obviously a function not of the common law but of helicopters and telephones. But what those delay-legitimating functions are—whether, for example, they include further investigation of the alleged crime or (as the Court says) "mixing" the probable-cause hearing with other proceedings—is assuredly governed by the common law, whose admonition on the point is not at all "vague": Only the function of arranging for the magistrate qualifies. The Court really has no response to this. It simply rescinds the common-law guarantee.
2. Ordinarily, I think, there would be plenty of time for "administrative steps" while the arrangements for a hearing are being made. But if, for example, a magistrate is present in the precinct and entertaining probable-cause hearings at the very moment a wrongfully arrested person is brought in, I see no basis for intentionally delaying the hearing in order to subject the person to a cataloging of his personal effects, fingerprinting, photographing, etc. He ought not be exposed to those indignities if there is no proper basis for constraining his freedom of movement, and if that can immediately be determined.
3. The Court claims that the Court of Appeals "concluded that it takes 36 hours to process arrested persons in Riverside County." Ante, at 57. The court concluded no such thing. It concluded that 36 hours (the time limit imposed by the District Court) was "ample" time to complete the arrest, 888 F.2d 1276, 1278 (CA9 1989), and that the county had provided no evidence to demonstrate the contrary. The District Court, in turn, had not made any evidentiary finding to the effect that 36 hours was necessary, but for unexplained reasons said that it "declines to adopt the 24 hour standard [generally applied by other courts], but adopts a 36 hour limit, except in exigent circumstances." McLaughlin v. County of Riverside, No. CV87-5597 RG (CD Cal., Apr. 19, 1989). 2 App. 332. Before this Court, moreover, the county has acknowledged that "nearly 90 percent of all cases . . . can be completed in 24 hours or less," Brief for District Attorney, County of Riverside, as Amicus Curiae 16, and the examples given to explain the other 10 percent are entirely unpersuasive (heavy traffic on the Southern California freeways; the need to wait for arrestees who are properly detainable because they are visibly under the influence of drugs to come out of that influence before they can be questioned about other crimes; the need to take blood and urine samples promptly in drug cases) with one exception: awaiting completion of investigations and filing of investigation reports by various state and federal agencies. Id., at 16-17. We have long held, of course, that delaying a probable-cause determination for the latter reason—effecting what Judge Posner has aptly called "imprisonment on suspicion, while the police look for evidence to confirm their suspicion," Llaguno v. Mingey, 763 F.2d 1560 , 1568 (CA7 1985)—is improper. See Gerstein, 420 U.S., at 120, n. 21, 95 S.Ct., at 866, n. 21, citing Mallory v. United States, 354 U.S. 449 , 456, 77 S.Ct. 1356, 1360, 1 L.Ed.2d 1479 (1957).