A Review of Police Detention Practices
A White Paper Produced by the Staff of the Memphis Shelby Crime
Commission.
Federal Case Law reviewed by Dr. Richard Janikowski,
Associate Professor of Criminology and Criminal Justice,
The University of Memphis
A Publication of the Memphis Shelby Crime Commission
Volume 1, Number 1, 1999
Foreword
This study, A Comparison of Police Detention Practices, is the first in a series of White Papers on issues related to public safety. While the primary method of research for The Memphis Shelby Crime Commission (also referred to as the Crime Commission) is best practice investigations, not all topics lend themselves to this format. The purpose of the White Paper is to cover special issues, policies and concerns not specifically addressed by the Crime Commission's Best Practice Studies.
A White Paper is usually defined as a statement of government policy on a particular subject. In government departments, White Papers are drafted by civil servants, but the final decision concerning their content is at the discretion of the agency head in line with stated administration policy. A very common procedure after the publication of a White Paper is for the government to initiate legislation embodying the position proposed. Therefore, a White Paper serves as a form of public pre-legislative scrutiny. It has, in fact, always been the case that governments accept comments from interested bodies, as well as the public at large, on the content of White Papers. Such comments have varying degrees of influence upon the legislation that follows.
While the Memphis Shelby Crime Commission is an independent, non-governmental nonprofit organization, the purpose of its White Papers closely mirrors that of governmental agencies. The content of these White Papers will serve as statements of position by the Board of Directors of the Crime Commission. The primary goal is to formulate an assessment of an issue for public comment and review. Upon publication, an outcome of the Crime Commission's White Paper may be the ratification of the stated position as the accepted standard of practice, but the success of the White Paper will not be measured by whether or not the stated position becomes standardized.
In articulating this White Paper position, the Memphis Shelby Crime Commission is not rendering legal advice as to the legal ramifications of adopting this recommended White Paper position. The recipient of this position is therefore advised to seek legal opinion and the recipient should not rely on this position as legal opinion.
I. Introduction and Methodology
On November 3, 1998 and January 7, 1999 the Commercial Appeal published articles which described a Memphis Police Department practice known as "on the hook." The term "on the hook" is a local term without a clear definition. It may describe the length of time elapsed from the initial arrest to judicial arraignment. It may also describe a prospective form of detention, whereby a person is arrested and within 48 hours is released without ever appearing before a magistrate and being formally charged.
At the request of the Commercial Appeal, the Memphis Shelby Crime Commission agreed on January 6, 1999 to compare the local practice of "on the hook", as it was presented in the two articles, with practices from other police departments around the country. The purpose of the review was to ascertain whether the practice of "on the hook" detention by the Memphis Police Department conformed to the detention practices of other major cities.
As with past surveys, the Crime Commission selected 16 cities to review: the Memphis 2005 peer cities,1 and the nine cities with populations above 500,000 that reduced crime the most during the 1990s.2 Taken together, these sixteen cities provide a diverse cross-section by which to compare the policies and practices of Memphis.
After professional consultations with its research team, the Crime Commission decided to employ a telephone survey methodology to determine the policies of the selected comparison cities. Telephone surveys are a standard and growing form of criminological inquiry.3 They are commonly employed because of their timeliness and cost-effectiveness in the data gathering process. All interviews for this report were conducted from the offices of the Memphis Shelby Crime Commission by the same researcher over a two-week period in January 1999.
As with any type of survey research, the quality of the information received is dependent on the knowledge and accuracy of the informant. While all those interviewed felt comfortable answering questions regarding their respective department's policies, all such answers cannot necessarily be taken as official departmental policy. The survey results are therefore best construed as indicating perceived departmental policies and practices regarding the issue of a suspect's detainment prior to charging. Perception surveys should reveal what practitioners believe official policy to be, as well as how such policies are actuated under daily conditions.
The results of the survey appear in Figure 1. Maximum periods of detainment ranged from 8 to 72 hours.4 A majority of the cities reported that they possessed neither 24-hour magistrates nor 24-hour prosecutors. Regarding the length of time elapsed from arrest to arraignment, typical periods of detention varied greatly from department to department. All periods were estimates, as no department surveyed maintained statistics on the length of time from arrest to arraignment. A majority of the departments expressed a departmental philosophy that all defendants should be arraigned forthwith, as there was no perceived benefit to a prolonged detention. Several of the departments, San Antonio in particular, emphasized the use of precinct holding facilities prior to sending to suspect to jail, as an effective method of verifying probable cause, questioning the suspect, and increasing the speed of the booking process. The lack of such facilities in Memphis can certainly be a contributing factor to any delay in the process from arrest to arraignment.
The results of the survey indicated that none of the cities surveyed reported having an "on the hook" practice that involved the release of suspects up to 48 hours after initially detaining them without a prior appearance before a magistrate. This was true of every department surveyed, irrespective of whether prosecutors or magistrates were available on a twenty-four hour basis.
| City | For officer initiated arrests, perceived maximum length of detention prior to being charged or appearing before a magistrate (in hours) |
For officer initiated arrests, perceived typical length of detention prior to being charged or appearing before a magistrate (in hours) |
For officer initiated arrests, detention up to 48 hours and release without being charged or appearing before a magistrate |
24 hr. magistrates |
24 hr. prosecutors |
| Atlanta | 48 |
NA |
N |
N |
N |
| Indianapolis | 72 |
ASAP, less than 24 |
N |
N |
N |
| Charlotte | NA |
ASAP, app. 2 |
N |
Y |
Y |
| San Francisco | 72 |
ASAP, less than 4 |
N |
N |
N |
| Houston | 24 |
ASAP |
N |
N |
N |
| Austin | 48 |
ASAP |
N |
N |
N |
| Los Angeles | 48 |
Less than 48 |
N |
N |
N |
| Nashville | 48 |
ASAP |
N |
Y5 |
N |
| San Antonio | NA |
ASAP, 2 to 3 |
N |
Y |
N |
| Birmingham | 86 |
ASAP, less than 8 |
N |
Y |
N |
| Dallas | 24 |
ASAP |
N |
N |
N |
| Boston | 48 |
ASAP, 4 to 5 |
N |
N |
N |
| El Paso | NA |
ASAP, 8 or less, 6 or less for juveniles |
N |
Y |
Y |
| New York | 24 |
ASAP, 12 to 24 |
N |
Y |
Y |
| Louisville | 48 |
ASAP |
N |
N |
N |
| San Diego | 24 |
ASAP |
N |
N |
N |
Figure 1. A comparison of police detention practices. Telephone survey conducted in a two-week period in January 1999 by the Memphis Shelby Crime Commission. The above information may not conform identically to the official written policies of each participating city in the survey.
II. Review of Federal Case Law
An arrest is a Fourth Amendment seizure. Prior to 1968, the law recognized two statuses in regard to arrest: either a person is under arrest and has lost all freedom of movement, or a person is not under arrest and is free to go. In 1968, the Supreme Court introduced in Terry v. Ohio 7an important refinement, the hybrid detention status known as a stop. When legally stopped, the individual has, indeed, lost her freedom of movement, but only for a short period of time for limited questioning. Thus, a lawful Fourth Amendment seizure of the person may now be characterized as either an arrest or a stop.
The nature of an arrest is dependent on the circumstances under which it is made. Because an arrest is a seizure of the person under the Fourth Amendment, to be constitutionally effected, there must be probable cause to show that a crime has been committed and the individual being detained is the perpetrator. An arrest may be made on the basis of an arrest warrant issued by a magistrate based upon sworn evidence in support of probable cause. Warrants enable any police officer to make the arrest regardless of whether the suspect committed a crime in their presence (at common law, a police officer could arrest for a felony when he had probable cause to believe a crime had been committed and that the arrestee had committed the crime, but could only arrest in cases involving misdemeanors when the misdemeanor was committed in his presence). In practice, the vast majority of all arrests are made on an officer’s own initiative, without a warrant.8
The Supreme Court has made it clear that if an arrest warrant is not used, the probable cause determination made by the police officer must be reviewed by a judge or magistrate as soon as possible. Gerstein v. Pugh9 involved a challenge of the preliminary hearing system used in Florida at that time. Under that system, prosecutors could charge all crimes, other than capital offenses, by information, without a preliminary examination and without obtaining leave of court. Only through a special statute allowing for a preliminary hearing after 30 days, or during arraignment, which often took place a month or more after arrest, could a suspect obtain a judicial determination of probable cause. The Supreme Court in striking down this procedure as unconstitutional, concluded that the Fourth Amendment requires as a condition for any significant pretrial restraint on liberty a judicial determination of probable cause made either before or promptly after arrest. While the Court recognized the practical necessity of allowing warrantless arrests so long as they are supported by probable cause, it pointed out that exigent circumstances no longer exist once a suspect is taken into custody. At that time, a suspect’s rights to be free from unlawful detention become paramount.
A] policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint on liberty. When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.
Gerstein thus rejected the contention that the prosecutor’s decision to file an information is itself a sufficient determination of probable cause to detain a defendant pending trial. However, Gerstein also made it clear that a probable cause hearing is not required after every arrest. The return of a grand jury indictment satisfies the probable cause determination required to detain a suspect pending trial. Likewise, a person arrested under a warrant has received an adequate prior judicial determination of probable cause. Under these circumstances, therefore, a preliminary hearing is not constitutionally required. Gerstein stands only for the proposition that before a suspect may be detained some official entity other than a law enforcement officer must make a determination of probable cause.10
The rule of Gerstein v. Pugh is hardly novel. Every state has a rule that requires police to bring arrested persons to a magistrate very soon for initial processing.11 The federal rule12 states:
An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonable available, before a state or local judicial officer….
The Supreme Court clarified the time period for which a person can be held in County of Riverside v. McLaughin.13 Gerstein required that the hearing it mandated take place "promptly after arrest." But Gerstein did not attempt to define this phrase further. In McLaughin, the majority, in an opinion written by Justice O’Connor, held that a hearing which takes place within 48 hours of arrest will be presumptively reasonable. The Court noted that the county’s rule that a person must be arraigned within two days that excluded weekends and holidays could result in being held for five days if arrested at the end of the week, or up to seven days over a Thanksgiving holiday. However, the forty-eight hour rule is not inflexible. A hearing might still violate Gerstein if it is delayed "unreasonably,"14 thus constituting a Fourth Amendment violation. On the other hand, "unavoidable delays in transporting arrested persons from one facility to another, handling latenight bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities" are valid excuses for postponement within the two-day period.
Justice O’Connor indicated that administrative efficiency is another legitimate reason for delay; relying on Gerstein’s statement that flexibility during the pretrial stages of the criminal process is important as a means of promoting state experimentation, she referred favorably to a scheme which routinely defers the Gerstein hearing for up to 48 hours in order to combine it with other types of proceedings, such as bail determination. In dissent Justice Scalia argued that Gerstein’s language about experimentation focused on the procedures for conducting the hearing, not its timing, and that the need to avoid incarceration of an innocent individual far outweighs the state’s interest in efficient processing. He also contended that the majority’s approach violated the common law notion that judicial review of an arrest must take place as soon after as possible.15 He concluded that, at most, the Fourth Amendment allows a 24-hour delay between arrest and the Gerstein hearing. Justice Marshall, joined by Justices Blackmun and Stevens, wrote a separate dissent that did not mention Justice Scalia’s 24-hour rule, but agreed that "a probable cause hearing is sufficiently ‘prompt’ under Gerstein only when provided immediately upon completion of the ‘administrative steps incident to arrest.’"
III. Discussion
Even under ideal cycle time conditions, some period of time will elapse from arrest to arraignment. This inevitability is especially true of large cities that process tens of thousands of arrests each year- a seamless process seems highly untenable. Nonetheless, there does appear to be an incentive to keep the period of pre-arraignment detention to a minimum, according to most of the cities surveyed.
The protracted detention of adults pending an appearance before a magistrate presents significant problems for both criminal justice officials and for those adults held in custody. If an arrest is not authorized by either an arrest warrant or a grand jury indictment, the Fourth Amendment requires a prompt post-arrest judicial assessment of whether probable cause to detain exists. The assessment may be ex parte, in the absence of counsel, and informal in nature- in short, similar to the pre-arrest determination of probable cause when a warrant is sought. If such a hearing takes place within 48 hours of arrest, it is presumptively reasonable.
The Tennessee Supreme Court in State v. Huddleston, citing McLaughin, noted that detention of a defendant longer than 48 hours in order to continue an investigation and develop additional evidence constitutes "unnecessary delay" unless the government can "demonstrate the existence of a bona fide emergency or other extraordinary circumstance".16 From the perspective of the prosecution, detainment longer than 48 hours is extremely problematic, as it can affect the admission of statements taken more than 48 hours after arrest. The practice of holding a suspect for a prolonged period of time provides unnecessary opportunities for erroneous deprivations of liberty. Irrespective of whether or not such a practice is constitutionally validated, any extended delay in charging a suspect appears to be a risk most police departments are unwilling to accept.
B. "On the Hook" as Arrest and Release within 48 hours without an Appearance before a Magistrate to be Formally Charged.
A relatively large body of literature exists on the issue of preventive detention practices, the origin of which has been traced in English law at least as far back as 1360.17 The Supreme Court has ruled that preventive detention is permissible with respect to an accused offender when there is evidence that he or she posed a serious risk of committing a crime before adjudication of the case. However, the literature on preventive detention presumes that a defendant has appeared before a magistrate and has been charged with an offense. By definition preventive detention is "the practice of denying bail or setting bail at an unattainably high amount in order to imprison a person who presents a particular danger to society if left free before trial." Therefore, the many texts that discuss applications of preventive detention do not apply to the issue of detention prior to being charged.
The use of on the hook as prospective detention appears extremely questionable. If a suspect is released 48 hours after arrest without being charged, the legitimacy of the arrest itself may be disputable. This may put the arresting officer, the police department, and the municipal government in a position of unnecessary liability. Prospective "on the hook" incarceration has the appearance of intended punishment, and is therefore problematical.
The purpose of a judicial hearing is to determine if there is probable cause to believe the suspect committed the act alleged. All arrests should occur within the context of either a warrant or probable cause. If probable cause is determined, the suspect is charged; if probable cause is not determined, the suspect is released. Some police departments surveyed reported that under rare circumstances an officer would arrest a suspect with probable cause, but the detective reviewing the case determined that the case would not achieve a level of probable cause required by a judge. Only in this instance would a defendant be released prior to appearing before a magistrate. However, in these instances the detainment of a suspect would never approach 48 hours, and was never intended to either punish the suspect or to continue an investigation.18
IV. Conclusion
In the adult system, the jail is the primary custodial alternative for persons awaiting an initial appearance. Delays prior to a preliminary hearing create several potential problems for the system, including additional liability, jail overcrowding, as well as a corrosive effect on the legitimacy of police authority. It is the position of the Memphis Shelby Crime Commission, in keeping with practices of cities across the country, that under normal circumstances a hearing should be rendered forthwith. Thus, while 48 hours may be the Constitutional standard for detainment prior to arraignment, the modus operandi should be "as quickly as possible."
The City of Memphis apparently intends for suspects to be taken before a magistrate as soon as possible. A city publication entitled What To Do If You Are Stopped By The Police contains a declaration on citizen rights that is relevant to this discussion. It states: "You must be taken before the judge the next court day after arrest."19
According to the Commercial Appeal's review of arrest records in November of 1998, the paperwork of 9.2 percent or 46 of the 500 cases reviewed in a three-day period were stamped "on the hook." Of these 46 cases, 19 were released without ever being charged. It is the 19 cases that were released prior to a judicial determination on probable cause that may raise the most valid concerns, because of the shadow such a release may cast on the validity of the originating arrest. On the other hand, the release by the police of these suspects may have been completely justified, since a suspect should not continue to be detained by the police after a determination has been made that probable cause is lacking. Sound public policy suggests that a review of the circumstances surrounding the arrest be conducted where suspects are released prior to a Gerstein hearing.20 Every suspect arrested and detained by law enforcement personnel has the right to a Gerstein hearing by a judge or magistrate. The improper arrest and detainment of citizens can threaten public trust and confidence in the integrity of the criminal justice process. Taking into account that the issue of "on the hook" arrests has been raised in a public forum, the Memphis Shelby Crime Commission recommends that the Shelby County District Attorney's Office and the Memphis Police Department should conduct a thorough review of the issues relevant to "on the hook." The results of such a review should be made public.
Notes
1 The seven peer cities or Metropolitan Statistical Areas are Atlanta, Birmingham, Charlotte, Dallas, Indianapolis, Louisville and Nashville.
2 Austin, Boston, El Paso, Houston, Los Angeles, New York, San Antonio, San Diego, and San Francisco have each experienced reductions in crime of 10% or greater during the 1990s.
3 Maxfield, M. and Babbie, E. Research Methods for Criminal Justice and Criminology. New York: Wadsworth, 1995.
4 Birmingham operates under a federally mandated 8-hour maximum detention for felony arrests.
5 Nashville uses a judicial commission system.
6 Per court order. Federal lawsuit. For felony cases only.
7 392 U.S. 1 (1968).
8 Kamisar, Yale, Wayne R. LaFave, & Jerold H. Israel, Basic Criminal Procedure, 7th ed. (1990).
9420 U.S. 103 (1975).
10 Whitebread, Charles, and Christoper Slobogin, Criminal Procedure: An Analysis of Cases and Concepts, 3rd ed. (1993).
11 Zalman, Marvin, and Larry Siegel, Criminal Procedure: Constitution and Society, 2nd Edition(1997).
12 Federal Rules of Criminal Procedure, Rule 5(a), West 1987-88 Educational Edition, p. 14.
13 500 U.S. 44 (1991).
14 E.g., "delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake."
15 See, e.g., Wright v. Court, 107 Eng. Rep. 1181 (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.")
16 State v. Huddleston, 924 S.W.2d666 (Tennessee 1996).
17 See Goldfarb, Ronald. Ransom: A Critique of the American Bail System, New York: Harper and Row, 1965.
18 These circumstances would also apply to cases where another individual confesses to the crime.
19 City of Memphis, Division of Public Services, Memphis Civilian Review Board.
20 E.g., such a review could be made by the District Attorney's Office after the fact.
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