Background
One of the cardinal rules related to a warrantless arrest is the need for a member of the judicial branch to find probable cause for the arrest. Obviously, when someone has been arrested for a warrant, a judge has found probable cause for the arrest (in fact, the judge issued an order to arrest the person). But if someone is taken into custody by the government (that is, they are seized – thereby invoking the Fourth Amendment), then the Court outlined a requirement that a judge/court make a finding of probable cause justifying the warrantless seizure.
The Emergence of the 48 Hour Rule
The Court stated that the line of demarcation is 48 hours. If someone is held longer, it is presumptively unreasonable (i.e., unconstitutional and illegal). Likewise, if a court makes the probable cause determination within 48 hours, the detention is presumptively reasonable. But, remember this is a rebuttable presumption. So, if law enforcement can show a valid reason there was not a finding of probable cause within 48 hours, it may in fact be reasonable. In the same regard, an officer cannot delay the probable cause submission deliberately, even if it still falls within the 48 hours (i.e., if the court process would have been within 5 hours, the officers cannot delay the process over 42 hours just because the suspect is a jerk).
Gerstein & Riverside
A couple of cases from the Supreme Court (commonly known as Gerstein v. Pugh and Riverside) outline the process. These are the landmark cases on the 48 hour rule, and they are summarized below.
Legal Supplement
Gerstein v. Pugh, 420 U.S. 103 (1975),
Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.
In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute.
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.
We agree with the Court of Appeals that the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention …
County of Riverside v. McLaughlin, 500 U.S. 44 (1991),
But flexibility has its limits; Gerstein is not a blank check.
Unfortunately, as lower court decisions applying Gerstein have demonstrated, it is not enough to say that probable cause determinations must be "prompt." This vague standard simply has not provided sufficient guidance. Instead, it has led to a flurry of systemic challenges to city and county practices, putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations.
[W]e believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.
This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.
Examples of unreasonable delay are 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. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility.
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.
A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.
