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.