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The Suspicion Tax

Scott Greenfield wrote a post Friday on a topic that I’ve often wondered over, and which I’ve occasionally discussed with other attorneys. This is the question of the delay between a warrantless arrest, and the time when the arrested person is finally taken to court.

One of the reasons that I’ve thought about this from time to time is that it’s always seemed to me that, in California, the law relating to this question says one thing, but the practice is to do another.

As I noted in a comment I left to Scott’s post this morning,

I’ve often wondered why we defense attorneys don’t do more to fight this, as there’s really no good excuse for it.

I’ve pointed out the law to attorneys who have been practicing longer than me to ask what gives. They usually shrug, and occasionally state a belief that case law allows the longer time.

Your post makes me want to take a closer look at this issue.

This post is the result of that closer look.

I have to start by saying that I’m still not entirely sure why this happens, but a couple hours of legal research makes it clear that the way things are done in the jurisdictions where I normally practice — Fresno County, Kings County, Tulare County, and Madera County — is almost certainly not lawful. I’ve had much more minimal experience in San Luis Obispo County, Mariposa County, and Merced County, but there the law also appears not to be followed.

If my analysis is correct — and I think it is, because even the California Criminal Law Procedure and Practice, the so-called “tan Bible” — says[1] weekends and holidays must be counted in warrantless arrests, the beginning of the problem starts with the California Constitution, and two different California statutes that appear to address the question. Both the California Constitution, and one of the statutes — Penal Code section 849,subsection (a) — say that you must be brought to court “without unnecessary delay”:

When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.

Deciding whether or not this statute is ever actually followed depends on how you interpret “without unnecessary delay.” The United States Supreme Court — in a problematic opinion of its own — sets an outer limit of 48 hours.

Where an arrested individual does not receive a probable cause determination within 48 hours…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 emergent or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. 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.[2]

California offers combined proceedings; the first court appearance is an arraignment on a Complaint, where probable cause questions might presumably be brought. (I’ve never actually seen this done, though. I wonder what would happen if an attorney tried to raise “probable cause” at an arraignment; I suspect that in felony cases the court might say questions like that are reserved for the preliminary hearing, while in misdemeanor cases one could presumably ask to calendar a probable cause hearing (since there are no prelims in misdemeanor cases). Neither of those moves should pass constitutional muster.)

In any event, arraignment on the Complaint, in the counties where I practice, almost never occurs within 48 hours.

As near as I can tell, there are several reasons for this. And I’m willing to bet that none of them are constitutional — if the McLaughlin case quoted above is the constitutional measure, as it seems it should be.

First off is that other California statute governing the question of pretrial detention — remember I said there were two. Penal Code section 825,[3] subsection (a)(1), states:

Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays.

Subsection (a)(2) then expands that timeframe by allowing that if the 48 hours expires when court is not in session, then the State gets to carry the detention over one more day. In my experience, that’s exactly what happens: whether with, or without, an arrest warrant, an in-custody person gets taken to court for arraignment on the third day after arrest.

But note that “excluding Sundays and holidays” portion of the California rule.

McLaughlin says additional time needed to consolidate a pretrial hearing with a probable cause hearing (in this case, arraignment-plus-probable-cause) is not an “extraordinary circumstance.” Nor are Sundays to be excluded from the determination under McLaughlin.

But McLaughlin doesn’t address whether or not a holiday would be an “extraordinary circumstance.” I would argue that it is not: holidays are known to occur on specific days, or dates. In any event, no one is ever surprised by a holiday. You typically don’t hear people — even Jewish people like me — saying, “Oh crap! I didn’t realize today was going to be Christmas! I’m not going to be able to arraign Joe Bob today! Guess he’ll just have to spend another night in jail.”

I can imagine law enforcement and District Attorneys’ Offices, however, with their slightly smaller brains, being caught off-guard.

Thus, there may be a counterargument.

And yet there is still a difference between the law and the practice: in all the counties where I take cases, the rule seems to be that Saturdays, Sundays, and holidays are excluded.

So what of the United States Supreme Court’s ruling that intervening weekends do not count as extraordinary circumstances such that a person could be arrested on Friday, and not be taken to court until more than 48 hours later because California is refusing to count Saturday and Sunday? And what about those people arrested on Friday who don’t get to court until Wednesday, because they were arrested after 5 p.m., so when their “48 hours” expired after the courts closed on Tuesday — using California’s “new math” — they were carried over to Wednesday as allowed by Penal Code section 825(a)(2)?

Honestly, I don’t know the answer. Because here’s the interesting thing: as near as I can tell, there is no remedy for a violation of the 48-hour rule. Or, to be more precise, there is no remedy stated in the case law I’ve been able to find on the subject. McLaughlin simply remanded the case “for further proceedings consistent with this opinion.” From there, I can’t figure out what happened.[4] The non-federal California cases are even worse. The holdings there amount to “you shouldn’t do this, law enforcement peoples, but we’re not going to do anything about it if you do unless someone can show that you prejudiced them in some way — and who can possibly prove that?”

In his dissent to McLaughlin, Justice Scalia — who can always be counted on to side with accused people as long as it won’t prevent their eventual conviction and long-term imprisonment — makes an interesting point about the prior constitutional requirement to bring the accused before a magistrate as soon as could reasonably be done.[5]

The reason for this was to protect the innocent from being “exposed to those indignities [cataloging of personal effects, fingerprinting, photographing, etc.; in other words, all the indignities that go along with being arrested, to which today could be added automatic strip-searching] if there is no proper basis for constraining his freedom of movement, and if that can immediately be determined.”

Scalia argued that it was wrong to “balance” the rights of accused, and possibly innocent, people against the right of the State to deprive those people of their liberty until it fit into the court’s schedule to allow a probable cause hearing to be “piggybacked” onto other proceedings. While I wish he felt that way about other “balancing tests” promulgated by the Supremes, at least here he gets it right.

So, ultimately, we have both sides of this opinion — the controlling opinion, and the dissent — agreeing that it is wrong to keep people in jail without a probable cause determination having been made by a judge; they just quibble over the length of the pretrial detention.

And yet we have the California Constitution, these California statutes, and the California practice, all seemingly contrary to federal constitutional law.

Why does it matter?

Because as Justice Scalia’s dissent pointed out, sometimes innocent people are snatchedup. The police make mistakes. Just this morning, I’ve already read several such stories,including this one where a 76-year-old man was repeatedly tased and arrested because police mistook him for his brother.[6] Sometimes, those innocent people die.

But even when they don’t, they still suffer the consequences of a wrongful arrest and detention. It could be as simple as someone thinks you look like you committed a crime, and doesn’t find out until later that you didn’t, as happened to this 28-year-old construction worker:

Ikenna [Njoku], a 28-year old construction worker, went to deposit a $8,463.21 Chase cashier’s check at his local Chase branch, only for the teller to decide that neither he nor his check looked right and he got tossed in jail for forgery, KING5 reports. The next day, a Friday, the bank realized its mistake and left a message with the detective. But it was her day off, so he spent the entire weekend in jail.

By the time he got out, he had been fired from his job for not showing up to work. His car had been towed as well. It ended up getting sold off at auction because he couldn’t afford to get it out of the pound. He had been relying on that cashier’s check for his money but it was taken as evidence and by the time he got it back it was auctioned off.

In this case, he “looked like” he committed a crime because he was black, and had a large check that was made out to him. By the time they checked out the check — i.e., the next day — he’d already lost everything. Where racial prejudice failed him, a probable cause hearing that comported with the Constitution would likely have saved him.

The McLaughlin Court’s re-statement from Gerstein concerning the consequences of a “prolonged detention based on incorrect or unfounded suspicion” are also well-understood by one Las Vegas man who, nevertheless, was denied any remedy by the courts.

Gonzalez attempted to end the encounters with Las Vegas police [at least 11 mistaken-identity arrests] by obtaining an “Identity Passport” to convince them they had the wrong man. The passport puts police officers on notice that prior to detaining or arresting a person, further investigation is required.

“However, the respondent officers continued to falsely arrest (Gonzalez) regardless of the fact that its officers did not have reasonable suspicion or probable cause to do so,” Lagomarsino said in his appeal.

The “harassment” by Las Vegas police caused “irrevocable damage to his mental health, relationships with his employers and relationships with family and friends,” Lagomarsino said.

In denying any relief, the Nevada courts stated that if they had upheld his claim against the police, it could have the unintended consequence of forcing police officers to do a complete investigation before arresting someone.

Just kidding. This is what they actually said:

Finding liability against Las Vegas police in Gonzalez’s case could cause other problems, such as forcing officers to choose between releasing a potential criminal and running the risk of civil liability, the court said.

And so it goes. Despite law to the contrary, people are jailed every single day in California. Whether innocent, or not, they are almost always held long enough to lose their jobs, unless they are able to immediately post bond; in other words, if you’re poor, and just scraping by, you’re probably going to end up poorer, jobless, and no longer scraping by. Call it “The Suspicion Tax.”

And there doesn’t seem to be anything that anyone can, or will, do about it.

ADDENDUM: By the way, think the above is bad? Under California law, juveniles can be kept in custody for 72 hours without a Petition (essentially equivalent to a Complaint in adult court) being filed. One kid I just learned about today was arrested on Friday, and is not scheduled to be brought to court until next Wednesday. Friday, Saturday, and Sunday are not being counted, notwithstanding McLaughlin, or the laws which state that the options for handling the juvenile which are the least restrictive of his, or her, freedoms are to be preferred.

  1. Citing the McLaughlin case. [↩]
  2. County of Riverside v. McLaughlin, 500 U.S. 44, 57, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991)(emphasis added). [↩]
  3. I believe that Penal Code section 825 is supposed to apply to arrests with a warrant, as opposed to warrantless arrests, and that that is what differentiates it from Penal Code section 849. But I see nothing in the statute itself that makes that so. If it were so, that might justify taking it outside the McLaughlin rule, although I would argue that isn’t necessarily true. McLaughlin did, on its face, only address warrantlessarrests. If 825 applies only to arrests with a warrant, then maybe — just maybe — it escapes McLaughlin because in an arrest with a warrant, someone has presumably validated the probable cause question. Maybe. [↩]
  4. My research tools seem to lose the trail after the 9th Circuit remands in accordance with the directive from the U.S. Supremes. [↩]
  5. This isn’t a law review article, so I’m not going to provide cites for everything. Read McLaughlin. And, as for Scalia, yes, this is not totally a fair comment: he doesseem to recognize that arrested people might actually be innocent, and he doesseem to believe that if they are, they should not be made to suffer anyway. But in my opinion, he too often seems to give with one hand, or case, and then later take away with another. I didn’t see a proposed remedy for the wrong from him, either. [↩]
  6. The question remains whether, if they’d found the right brother, he would have deserved a tasing. [↩]