High court OKs 2-day detention without hearing 5-4 ruling brings sharp dissent from Justice Scalia

May 14, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON -- Police who make an arrest without a judge's approval may hold that individual in jail for up to two full days before seeking a judge's authorization for the arrest, the Supreme Court ruled 5-4 yesterday.

Even if the individual turns out to be completely innocent because a judge decides there was no basis for the arrest, two days of jailing up to that point does not violate the Constitution, the court majority made clear.

The ruling, one of the dissenting justices complained, allows longer jailing as a constitutional matter than most states now permit in actual practice and thus gives police wider leeway to hold possibly innocent people who perhaps never should have been arrested in the first place.

But the majority declared that the Constitution does not require police to seek out a judge as soon as they have finished "booking" an individual they arrested without a court-approved warrant.

If state and local governments are required by the Constitution ,, to find a judge who will rule on the need for the arrest "the moment a suspect is finished being 'booked,' " Justice Sandra Day O'Connor wrote for the majority, "there is no room whatsoever for flexibility and experimentation by the states."

Two days' lapse, the majority said, should be enough to let police

and prosecutors get ready to go before a judge -- so long as that extra time is not used simply "for delay's sake" or to gather more evidence to justify the arrest.

The ruling brought a biting dissent from the court's most conservative member, Justice Antonin Scalia. He protested that the majority had eliminated "a very old right" -- the right of a person taken in without a warrant to go quickly to a judge for a ruling on whether the arrest was justified.

"Hereafter, a law-abiding citizen wrongfully arrested" may have to wait in jail 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," Justice Scalia wrote.

The ruling came in a California case involving Riverside County, which has followed a practice of holding for as long as five days -- and, in extreme cases, as long as a week -- individuals jailed without an arrest warrant.

The majority said delays of those lengths are unconstitutional under a 1975 decision by the justices that required a "prompt" review by a judge of warrantless arrests. In that earlier decision, the justices had not said what "prompt" meant.

Yesterday, while saying the court was reluctant to fix a "specific time limit," it said states and counties needed "some degree of certainty" so they could plan their pretrial procedures in a way that satisfied the Constitution.

The majority said it was allowing detentions in warrantless arrest cases of up to two full days to give police time to "cope with the everyday problems of processing suspects through an overly burdened criminal justice system."

If states and counties across the nation had to take individuals arrested without a warrant before a judge in one day or less, the majority said, state and local governments would have to speed up their criminal justice processes and, presumably, "hire additional police officers and magistrates."

Justice O'Connor added, "There may be times when the Constitution compels such direct interference with local control, but this is not one."

Joining Justice O'Connor in the majority were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, David H. Souter and Byron R. White.

Justice Scalia said in his dissenting opinion that he thought one day should be the maximum delay but that an immediate hearing would be preferable in most cases of warrantless arrests. He said only seven states currently allow longer than a 24-hour delay.

Three other dissenters -- Justices Harry A. Blackmun, Thurgood Marshall and John Paul Stevens -- did not say what time limit they would impose short of the majority's two-day rule.

The case was Riverside County vs. McLaughlin (No. 89-1817).

In other action yesterday, the court agreed to rule at its next term on whether illegal aliens in this country qualify to stay as political refugees if they fear being forced to join guerrilla forces in a civil war at home. The case involves a Guatemalan (Immigration and Naturalization Service vs. Zacarias, No. 90-1342).

The case

Four individuals who had remained as prisoners in the county jail in Riverside County, Calif., for several days even though no judge had decided that they had been arrested properly won their case in the Supreme Court but got less than they had hoped.

Instead of a 36-hour limit on the time they could be held without a judge reviewing their arrest, those four individuals -- and all others across the country who might face a similar warrantless arrest -- got a 48-hour limit from the court, with no exceptions for holidays or weekends.

Riverside County for some time had said it would hold individuals arrested without a warrant for only 48 hours, but that did not

include Saturdays, Sundays or holidays. In some situations on holidays, that meant they could stay as long as a week without a court's examining their claims of improper police arrest.

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