Subject:  COUNTY OF RIVERSIDE v. McLAUGHLIN, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus




COUNTY OF RIVERSIDE et al. v. McLAUGHLIN et al.

certiorari to the united states court of appeals for the ninth circuit

No. 89-1817.  Argued January 7, 1991 -- Decided May 13, 1991

Respondent McLaughlin brought a class action seeking injunctive and
declaratory relief under 42 U. S. C. MDRV 1983, alleging that petitioner
County of Riverside (County) violated the holding of Gerstein v. Pugh, 420
U. S. 103, by failing to provide "prompt" judicial determinations of
probable cause to persons who, like himself, were arrested without a
warrant.  The County combines such determinations with arraignment
procedures which, under County policy, must be conducted within two days of
arrest, excluding weekends and holidays.  The County moved to dismiss the
complaint, asserting that McLaughlin lacked standing to bring the suit
because the time for providing him a "prompt" probable cause determination
had already passed and he had failed to show, as required by Los Angeles v.
Lyons, 461 U. S. 95, that he would again be subject to the allegedly
unconstitutional conduct.  The District Court never explicitly ruled on the
motion to dismiss, but accepted for filing a second amended complaint --
the operative pleading here -- which named respondents James, Simon, and
Hyde as additional individual plaintiffs and class representatives, and
alleged that each of them had been arrested without a warrant, had not
received a prompt probable cause hearing, and was still in custody.  The
court granted class certification and subsequently issued a preliminary
injunction requiring that all persons arrested by the County without a
warrant be provided probable cause determinations within 36 hours of
arrest, except in exigent circumstances.  The Court of Appeals affirmed,
rejecting the County's Lyonsbased standing argument and ruling on the
merits that the County's practice was not in accord with Gerstein's
promptness requirement because no more than 36 hours were needed to
complete the administrative steps incident to arrest.

Held:

    1. Plaintiffs have Article III standing.  At the time the second
amended complaint was filed, James, Simon, and Hyde satisfied the standing
doctrine's core requirement that they allege personal injury fairly
traceable to the County's allegedly unlawful conduct and likely to be
redressed by the requested injunction.  See, e. g., Allen v. Wright, 468 U.
S. 737, 751.  Lyons, supra, distinguished.  Although the named plaintiffs'
claims were subsequently rendered moot by their receipt of probable cause
hearings or their release from custody, they preserved the merits of the
controversy for this Court's review by obtaining class certification.  See,
e. g., Gerstein, 420 U. S., at 110-111, n. 11.  This Court is not deprived
of jurisdiction by the fact that the class was not certified until after
the named plaintiffs' claims became moot.  Such claims are so inherently
transitory, see, e. g., id., at 110, n. 11, that the "relation back"
doctrine is properly invoked to preserve the case's merits for judicial
resolution, see, e. g., Swisher v. Brady, 438 U. S. 204, 213-214, n. 11.
Pp. 4-6.

    2. The County's current policy and practice do not comport fully with
Gerstein's requirement of a "prompt" probable cause determination.  Pp.
6-13.

    (a) Contrary to the Court of Appeals' construction, Gerstein implicitly
recognized that the Fourth Amendment does not compel an immediate
determination of probable cause upon completion of the administrative steps
incident to arrest.  In requiring that persons arrested without a warrant
"promptly" be brought before a neutral magistrate for such a determination,
420 U. S. 114, 125, Gerstein struck a balance between the rights of
individuals and the realities of law enforcement.  Id., at 113.  Gerstein
makes clear that the Constitution does not impose on individual
jurisdictions a rigid procedural framework for making the required
determination, but allows them to choose to comply in different ways.  Id.,
at 123.  In contrast, the Court of Appeals' approach permits no flexibility
and is in error.  Pp. 6-9.

    (b) In order to satisfy Gerstein's promptness requirement, a
jurisdiction that chooses to combine probable cause determinations with
other pretrial proceedings must do so as soon as is reasonably feasible,
but in no event later than 48 hours after arrest.  Providing a probable
cause determination within that time frame will, as a general matter,
immunize such a jurisdiction from systemic challenges.  Although a hearing
within 48 hours may nonetheless violate Gerstein if the arrested individual
can prove that his or her probable cause determination was delayed
unreasonably, courts evaluating the reasonableness of a delay must allow a
substantial degree of flexibility, taking into account the practical
realities of pretrial procedures.  Where an arrested individual does not
receive a probable cause determination within 48 hours, the burden of proof
shifts to the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstance, which cannot include
intervening weekends or the fact that in a particular case it may take
longer to consolidate pretrial proceedings.  Pp. 9-12.

    (c) Although the County is entitled to combine probable cause
determinations with arraignments, it is not immune from systemic challenges
such as this class action.  Its regular practice exceeds the
constitutionally permissible 48-hour period because persons arrested on
Thursdays may have to wait until the following Monday before receiving a
probable cause determination, and the delay is even longer if there is an
intervening holiday.  Moreover, the lower courts, on remand, must determine
whether the County's practice as to arrests that occur early in the week --
whereby arraignments usually take place on the last day possible -- is
supported by legitimate reasons or constitutes delay for delay's sake.  Pp.
12-13.

888 F. 2d 1276, vacated and remanded.

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, Kennedy, and Souter, JJ., joined.  Marshall, J., filed a
dissenting opinion, in which Blackmun and Stevens, JJ., joined.  Scalia,
J., filed a dissenting opinion.
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Subject: 89-1817 -- OPINION, COUNTY OF RIVERSIDE v. McLAUGHLIN

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-1817



COUNTY OF RIVERSIDE and COIS BYRD, SHERIFF OF RIVERSIDE COUNTY, PETITIONERS
v. DONALD LEE McLAUGHLIN et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[May 13, 1991]



    Justice O'Connor delivered the opinion of the Court.
    In Gerstein v. Pugh, 420 U. S. 103 (1975), this Court held that the
Fourth Amendment requires a prompt judicial determination of probable cause
as a prerequisite to an extended pretrial detention following a warrantless
arrest.  This case requires us to define what is "prompt" under Gerstein.

I
    This is a class action brought under 42 U. S. C. MDRV 1983 challenging
the manner in which the County of Riverside, California (County), provides
probable cause determinations to persons arrested without a warrant.  At
issue is the County's policy of combining probable cause determinations
with its arraignment procedures.  Under County policy, which tracks closely
the provisions of Cal. Penal Code Ann. MDRV 825 (West 1985), arraignments
must be conducted without unnecessary delay and, in any event, within two
days of arrest.  This two-day requirement excludes from computation
weekends and holidays.  Thus, an individual arrested without a warrant late
in the week may in some cases be held for as long as five days before
receiving a probable cause determination.  Over the Thanksgiving holiday, a
7-day delay is possible.
    The parties dispute whether the combined probable cause/ arraignment
procedure is available to all warrantless ar restees.  Testimony by
Riverside County District Attorney Grover Trask suggests that individuals
arrested without warrants for felonies do not receive a probable cause
determination until the preliminary hearing, which may not occur until 10
days after arraignment.  2 App. 298-299.  Before this Court, however, the
County represents that its policy is to provide probable cause
determinations at arraignment for all persons arrested without a warrant,
regardless of the nature of the charges against them.  Ibid.  See also Tr.
of Oral Arg. 13.  We need not resolve the factual inconsistency here.  For
present purposes, we accept the County's representation.
    In August 1987, Donald Lee McLaughlin filed a complaint in the United
States District Court for the Central District of California, seeking
injunctive and declaratory relief on behalf of himself and " `all others
similarly situated.' "  The complaint alleged that McLaughlin was then
currently incarcerated in the Riverside County Jail and had not received a
probable cause determination.  He requested " `an order and judgment
requiring that the defendants and the County of Riverside provide
in-custody arrestees, arrested without warrants, prompt probable cause,
bail and arraignment hearings.' "  Pet. for Cert. 6.  Shortly thereafter,
McLaughlin moved for class certification.  The County moved to dismiss the
complaint, asserting that McLaughlin lacked standing to bring the suit
because he had failed to show, as required by Los Angeles v. Lyons, 461 U.
S. 95 (1983), that he would again be subject to the allegedly
unconstitutional conduct -- i. e., a warrantless detention without a
probable cause determination.
    In light of the pending motion to dismiss, the District Court continued
the hearing on the motion to certify the class.  Various papers were
submitted; then, in July 1988, the District Court accepted for filing a
second amended complaint, which is the operative pleading here.  From the
record it appears that the District Court never explicitly ruled on
defendants' motion to dismiss, but rather took it off the court's calendar
in August 1988.
    The second amended complaint named three additional plaintiffs --
Johnny E. James, Diana Ray Simon, and Michael Scott Hyde -- individually
and as class representatives.  The amended complaint alleged that each of
the named plaintiffs had been arrested without a warrant, had received
neither prompt probable cause nor bail hearings, and was still in custody.
1 App. 3.  In November 1988, the District Court certified a class
comprising "all present and future prisoners in the Riverside County Jail
including those pretrial detainees arrested without warrants and held in
the Riverside County Jail from August 1, 1987 to the present, and all such
future detainees who have been or may be denied prompt probable cause, bail
or arraignment hearings."  1 App. 7.
    In March 1989, plaintiffs asked the District Court to issue a
preliminary injunction requiring the County to provide all persons arrested
without a warrant a judicial determination of probable cause within 36
hours of arrest.  1 App. 21.  The District Court issued the injunction,
holding that the County's existing practice violated this Court's decision
in Gerstein.  Without discussion, the District Court adopted a rule that
the County provide probable cause determinations within 36 hours of arrest,
except in exigent circumstances.  The court "retained jurisdiction
indefinitely" to ensure that the County established new procedures that
complied with the injunction.  2 App. 333-334.
    The United States Court of Appeals for the Ninth Circuit consolidated
this case with another challenging an identical preliminary injunction
issued against the County of San Bernardino.  See McGregor v. County of San
Bernardino, decided with McLaughlin v. County of Riverside, 888 F. 2d 1276
(1989).
    On November 8, 1989, the Court of Appeals affirmed the order granting
the preliminary injunction against Riverside County.  One aspect of the
injunction against San Bernardino County was reversed by the Court of
Appeals; that determination is not before us.
    The Court of Appeals rejected Riverside County's Lyonsbased standing
argument, holding that the named plaintiffs had Article III standing to
bring the class action for injunctive relief.  888 F. 2d, at 1277.  It
reasoned that, at the time plaintiffs filed their complaint, they were in
custody and suffering injury as a result of the defendants' allegedly
unconstitutional action.  The court then proceeded to the merits and
determined that the County's policy of providing probable cause
determinations at arraignment within 48 hours was "not in accord with
Gerstein's requirement of a determination `promptly after arrest' " because
no more than 36 hours were needed "to complete the administrative steps
incident to arrest."  Id., at 1278.
    The Ninth Circuit thus joined the Fourth and Seventh Circuits in
interpreting Gerstein as requiring a probable cause determination
immediately following completion of the administrative procedures incident
to arrest.  Llaguno v. Min gey, 763 F. 2d 1560, 1567-1568 (CA7 1985) (en
banc); Fisher v. Washington Metropolitan Area Transit Authority, 690 F. 2d
1133, 1139-1141 (CA4 1982).  By contrast, the Second Circuit understands
Gerstein to "stres[s] the need for flexibility" and to permit States to
combine probable cause determinations with other pretrial proceedings.
Williams v. Ward, 845 F. 2d 374, 386 (1988), cert. denied, 488 U. S. 1020
(1989).  We granted certiorari to resolve this conflict among the Circuits
as to what constitutes a "prompt" probable cause determination under
Gerstein.

II
    As an initial matter, the County renews its claim that plaintiffs lack
standing.  It explains that the main thrust of plaintiffs' suit is that
they are entitled to "prompt" probable cause determinations and insists
that this is, by definition, a time-limited violation.  Once sufficient
time has passed, the County argues, the constitutional violation is
complete because a probable cause determination made after that point would
no longer be "prompt."  Thus, at least as to the named plaintiffs, there is
no standing because it is too late for them to receive a prompt hearing
and, under Lyons, they cannot show that they are likely to be subjected
again to the unconstitutional conduct.
    We reject the County's argument.  At the core of the standing doctrine
is the requirement that a plaintiff "allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct and likely to be
redressed by the requested relief."  Allen v. Wright, 468 U. S. 737, 751
(1984), citing Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U. S. 464, 472 (1982).  The
County does not dispute that, at the time the second amended complaint was
filed, plaintiffs James, Simon, and Hyde had been arrested without warrants
and were being held in custody without having received a probable cause
determination, prompt or otherwise.  Plaintiffs alleged in their complaint
that they were suffering a direct and current injury as a result of this
detention, and would continue to suffer that injury until they received the
probable cause determination to which they were entitled.  Plainly,
plaintiffs' injury was at that moment capable of being redressed through
injunctive relief.  The County's argument that the constitutional violation
had already been "completed" relies on a crabbed reading of the complaint.
This case is easily distinguished from Lyons, in which the constitutionally
objectionable practice ceased altogether before the plaintiff filed his
complaint.
    It is true, of course, that the claims of the named plaintiffs have
since been rendered moot; eventually, they either received probable cause
determinations or were released.  Our cases leave no doubt, however, that
by obtaining class certification, plaintiffs preserved the merits of the
controversy for our review.  In factually similar cases we have held that
"the termination of a class representative's claim does not moot the claims
of the unnamed members of the class."  See, e. g., Gerstein, 420 U. S., at
110-111, n. 11, citing Sosna v. Iowa, 419 U. S. 393 (1975); Schall v.
Martin, 467 U. S. 253, 256, n. 3 (1984).  That the class was not certified
until after the named plaintiffs' claims had become moot does not deprive
us of jurisdiction.  We recognized in Gerstein that "[s]ome claims are so
inherently transitory that the trial court will not have even enough time
to rule on a motion for class certification before the proposed
representative's individual interest expires."  United States Parole Comm'n
v. Geraghty, 445 U. S. 388, 399 (1980), citing Gerstein, supra, at 110, n.
11.  In such cases, the "relation back" doctrine is properly invoked to
preserve the merits of the case for judicial resolution.  See Swisher v.
Brady, 438 U. S. 204, 213-214, n. 11 (1978); Sosna, supra, at 402, n. 11.
Accordingly, we proceed to the merits.

III


A
    In Gerstein, this Court held unconstitutional Florida procedures under
which persons arrested without a warrant could remain in police custody for
30 days or more without a judicial determination of probable cause.  In
reaching this conclusion we attempted to reconcile important competing in
terests.  On the one hand, States have a strong interest in protecting
public safety by taking into custody those persons who are reasonably
suspected of having engaged in criminal activity, even where there has been
no opportunity for a prior judicial determination of probable cause.  420
U. S., at 112.  On the other hand, prolonged detention based on incorrect
or unfounded suspicion may unjustly "imperil [a] suspect's job, interrupt
his source of income, and impair his family relationships."  Id., at 114.
We sought to balance these competing concerns by holding that States "must
provide a fair and reliable determination of probable cause as a condition
for any significant pretrial restraint of liberty, and this determination
must be made by a judicial officer either before or promptly after arrest."
Id., at 125 (emphasis added).
    The Court thus established a "practical compromise" between the rights
of individuals and the realities of law enforcement.  Id., at 113.  Under
Gerstein, warrantless arrests are permitted but persons arrested without a
warrant must promptly be brought before a neutral magistrate for a judicial
determination of probable cause.  Id., at 114.  Significantly, the Court
stopped short of holding that jurisdictions were constitutionally compelled
to provide a probable cause hearing immediately upon taking a suspect into
custody and completing booking procedures.  We acknowledged the burden that
proliferation of pretrial proceedings places on the criminal justice system
and recognized that the interests of everyone involved, including those
persons who are arrested, might be disserved by introducing further
procedural complexity into an already intricate system.  Id., at 119-123.
Accordingly, we left it to the individual States to integrate prompt
probable cause determinations into their differing systems of pretrial
procedures.  Id., at 123-124.
    In so doing, we gave proper deference to the demands of federalism.  We
recognized that "state systems of criminal procedure vary widely" in the
nature and number of pretrial procedures they provide, and we noted that
there is no single "preferred" approach.  Id., at 123.  We explained
further that "flexibility and experimentation by the States" with respect
to integrating probable cause determinations was de sirable and that each
State should settle upon an approach "to accord with [the] State's pretrial
procedure viewed as a whole."  Ibid.  Our purpose in Gerstein was to make
clear that the Fourth Amendment requires every State to provide prompt
determinations of probable cause, but that the Constitution does not impose
on the States a rigid procedural framework.  Rather, individual States may
choose to comply in different ways.
    Inherent in Gerstein's invitation to the States to experiment and adapt
was the recognition that the Fourth Amendment does not compel an immediate
determination of probable cause upon completing the administrative steps
incident to arrest.  Plainly, if a probable cause hearing is
constitutionally compelled the moment a suspect is finished being "booked,"
there is no room whatsoever for "flexibility and experimentation by the
States."  Ibid.  Incorporating probable cause determinations "into the
procedure for setting bail or fixing other conditions of pretrial release"
-- which Ger stein explicitly contemplated, id., at 124 -- would be
impossible.  Waiting even a few hours so that a bail hearing or arraignment
could take place at the same time as the probable cause determination would
amount to a constitutional violation.  Clearly, Gerstein is not that
inflexible.
    Notwithstanding Gerstein's discussion of flexibility, the Ninth Circuit
Court of Appeals held that no flexibility was permitted.  It construed
Gerstein as "requir[ing] a probable cause determination to be made as soon
as the administra tive steps incident to arrest were completed, and that
such steps should require only a brief period."  888 F. 2d, at 1278
(emphasis added) (internal quotations omitted).  This same reading is
advanced by the dissent.  See post, at 3-4, 6.  The foregoing discussion
readily demonstrates the error of this approach.  Gerstein held that
probable cause determinations must be prompt -- not immediate.  The Court
explained that "flexibility and experimentation" were "desirab[le]"; that
"[t]here is no single preferred pretrial procedure"; and that "the nature
of the probable cause determination usually will be shaped to accord with a
State's pretrial procedure viewed as a whole."  420 U. S., at 123.  The
Court of Appeals and the dissent disregard these statements, relying
instead on selective quotations from the Court's opinion.  As we have
explained, Gerstein struck a balance between competing interests; a proper
understanding of the decision is possible only if one takes into account
both sides of the equation.
    The dissent claims to find support for its approach in the common law.
It points to several statements from the early 1800's to the effect that an
arresting officer must bring a person arrested without a warrant before a
judicial officer " `as soon as he reasonably can.' "  Post, at 2 (emphasis
in original).  This vague admonition offers no more support for the
dissent's inflexible standard than does Gerstein's statement that a hearing
follow "promptly after arrest."  420 U. S., at 125.  As mentioned at the
outset, the question before us today is what is "prompt" under Gerstein.
We answer that question by recognizing that Gerstein struck a balance
between competing interests.

B
    Given that Gerstein permits jurisdictions to incorporate probable cause
determinations into other pretrial procedures, some delays are inevitable.
For example, where, as in Riverside County, the probable cause
determination is combined with arraignment, there will be delays caused by
paperwork and logistical problems.  Records will have to be reviewed,
charging documents drafted, appearance of counsel arranged, and appropriate
bail determined.  On weekends, when the number of arrests is often higher
and available resources tend to be limited, arraignments may get pushed
back even further.  In our view, the Fourth Amendment permits a reasonable
postponement of a probable cause determination while the police cope with
the everyday problems of processing suspects through an overly burdened
criminal justice system.
    But flexibility has its limits; Gerstein is not a blank check.  A State
has no legitimate interest in detaining for extended periods individuals
who have been arrested without probable cause.  The Court recognized in
Gerstein that a person arrested without a warrant is entitled to a fair and
reliable determination of probable cause and that this determination must
be made promptly.
    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 legis
lative judgments and overseeing local jailhouse operations.  See, e. g.,
McGregor v. County of San Bernardino, decided with McLaughlin v. County of
Riverside, 888 F. 2d 1276 (CA9 1989); Scott v. Gates, Civ. No. 84-8647 (CD
Cal. Oct. 3, 1988); see also Bernard v. Palo Alto, 699 F. 2d 1023 (CA9
1983); Sanders v. Houston, 543 F. Supp. 694 (SD Tex. 1982), affirmance
order, 741 F. 2d 1379 (CA5 1984); Lively v. Cul linane, 451 F. Supp. 1000
(DC 1978).
    Our task in this case is to articulate more clearly the boundaries of
what is permissible under the Fourth Amendment.  Although we hesitate to
announce that the Constitution compels a specific time limit, it is
important to provide some degree of certainty so that States and counties
may establish procedures with confidence that they fall within
constitutional bounds.  Taking into account the competing interests
articulated in Gerstein, we believe that a juris diction 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.  Courts cannot ignore the often unavoidable delays in
transporting arrested persons from one facility to another, handling
late-night 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.
    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.
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.
    The dissent urges that 24 hours is a more appropriate outer boundary
for providing probable cause determinations.  See post, at 9.  In arguing
that any delay in probable cause hearings beyond completing the
administrative steps incident to arrest and arranging for a magistrate is
unconstitutional, the dissent, in effect, adopts the view of the Court of
Appeals.  Yet the dissent ignores entirely the Court of Appeals'
determination of the time required to complete those procedures.  That
court, better situated than this one, concluded that it takes 36 hours to
process arrested persons in Riverside County.  888 F. 2d, at 1278.  In
advocating a 24-hour rule, the dissent would compel Riverside County -- and
countless others across the Nation -- to speed up its criminal justice
mechanisms substantially, presumably by allotting local tax dollars to hire
additional police officers and magistrates.  There may be times when the
Constitution compels such direct interference with local control, but this
is not one.  As we have explained, Gerstein clearly contemplated a
reasonable accommodation between legitimate competing concerns.  We do no
more than recognize that such accommodation can take place without running
afoul of the Fourth Amendment.     Everyone agrees that the police should
make every attempt to minimize the time a presumptively innocent individual
spends in jail.  One way to do so is to provide a judicial determination of
probable cause immediately upon completing the administrative steps
incident to arrest -- i. e., as soon as the suspect has been booked,
photographed, and fingerprinted.  As the dissent explains, several States,
laudably, have adopted this approach.  The Constitution does not compel so
rigid a schedule, however.  Under Gerstein, juris dictions may choose to
combine probable cause determinations with other pretrial proceedings, so
long as they do so promptly.  This necessarily means that only certain
proceedings are candidates for combination.  Only those proceedings that
arise very early in the pretrial process -- such as bail hearings and
arraignments -- may be chosen.  Even then, every effort must be made to
expedite the combined proceedings.  See 420 U. S., at 124.

IV
    For the reasons we have articulated, we conclude that Riverside County
is entitled to combine probable cause determinations with arraignments.
The record indicates, however, that the County's current policy and
practice do not comport fully with the principles we have outlined.  The
County's current policy is to offer combined proceedings within two days,
exclusive of Saturdays, Sundays, or holidays.  As a result, persons
arrested on Thursdays may have to wait until the following Monday before
they receive a probable cause determination.  The delay is even longer if
there is an intervening holiday.  Thus, the County's regular practice
exceeds the 48-hour period we deem constitutionally permissible, meaning
that the County is not immune from systemic challenges, such as this class
action.
    As to arrests that occur early in the week, the County's practice is
that "arraignment[s] usually tak[e] place on the last day" possible.  1
App. 82.  There may well be legitimate reasons for this practice;
alternatively, this may con stitute delay for delay's sake.  We leave it to
the Court of Appeals and the District Court, on remand, to make this
determination.
    The judgment of the Court of Appeals is vacated and the case is
remanded for further proceedings consistent with this opinion.

It is so ordered.


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Subject: 89-1817 -- DISSENT, COUNTY OF RIVERSIDE v. McLAUGHLIN

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1817



COUNTY OF RIVERSIDE and COIS BYRD, SHERIFF OF RIVERSIDE COUNTY, PETITIONERS
v. DONALD LEE McLAUGHLIN et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[May 13, 1991]



    Justice Marshall, with whom Justice Blackmun and Justice Stevens join,
dissenting.

    In Gerstein v. Pugh, 420 U. S. 103 (1975), this Court held that an
individual detained following a warrantless arrest is entitled to a
"prompt" judicial determination of probable cause as a prerequisite to any
further restraint on his liberty.  See id., at 114-116, 125.  I agree with
Justice Scalia that a probable-cause hearing is sufficiently "prompt" under
Gerstein only when provided immediately upon completion of the
"administrative steps incident to arrest," id., at 114.  See post, at 4-5.
Because the Court of Appeals correctly held that the County of Riverside
must provide probablecause hearings as soon as it completes the
administrative steps incident to arrest, see 888 F. 2d 1276, 1278 (CA9
1989), I would affirm the judgment of the Court of Appeals.  Accordingly, I
dissent.

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Subject: 89-1817 -- DISSENT, COUNTY OF RIVERSIDE v. McLAUGHLIN

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1817


COUNTY OF RIVERSIDE and COIS BYRD, SHERIFF OF RIVERSIDE COUNTY, PETITIONERS
v. DONALD LEE McLAUGHLIN et al.

on writ of certiorari to the united states court of appeals for the ninth
circuit

[May 13, 1991]



    Justice Scalia, dissenting.
    The story is told of the elderly judge who, looking back over a long
career, observes with satisfaction that "when I was young, I probably let
stand some convictions that should have been overturned, and when I was old
I probably set aside some that should have stood; so overall, justice was
done."  I sometimes think that is an appropriate analog to this Court's
constitutional jurisprudence, which alternately creates rights that the
Constitution does not contain and denies rights that it does.  Compare Roe
v. Wade, 410 U. S. 113 (1973) (right to abortion does exist) with Maryland
v. Craig, 497 U. S. --- (1990) (right to be confronted with witnesses,
Amdt. 6, does not).  Thinking that neither the one course nor the other is
correct, nor the two combined, I dissent from today's decision, which
eliminates a very old right indeed.
I
    The Court views the task before it as one of "balanc[ing] [the]
competing concerns" of "protecting public safety," on the one hand, and
avoiding "prolonged detention based on incorrect or unfounded suspicion,"
on the other hand, ante, at 6.  It purports to reaffirm the "practical
compromise" between these concerns struck in Gerstein v. Pugh, 420 U. S.
103 (1975), ante, at 7.  There is assuredly room for such an approach in
resolving novel questions of search and seizure under the "reasonableness"
standard that the Fourth Amendment sets forth.  But not, I think, in
resolving those questions on which a clear answer already existed in 1791
and has been generally adhered to by the traditions of our society ever
since.  As to those matters, the "balance" has already been struck, the
"practical compromise" reached -- and it is the function of the Bill of
Rights to preserve that judgment, not only against the changing views of
Presidents and Members of Congress, but also against the changing views of
Justices whom Presidents appoint and Members of Congress confirm to this
Court.
    The issue before us today is of precisely that sort.  As we have
recently had occasion to explain, the Fourth Amendment's prohibition of
"unreasonable seizures," insofar as it applies to seizure of the person,
preserves for our citizens the traditional protections against unlawful
arrest afforded by the common law.  See California v. Hodari D., 499 U. S.
--- (1991).  One of those -- one of the most important of those -- was that
a person arresting a suspect without a warrant must deliver the arrestee to
a magistrate "as soon as he reasonably can."  2 M. Hale, Pleas of the Crown
95, n. 13 (1st Am. ed. 1847). See also 4 W. Blackstone, Commentaries *289,
*293; Wright v. Court, 107 Eng. Rep. 1182 (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"); 1 R. Burn, Justice of the Peace
276-277 (1837) ("When a constable arrests a party for treason or felony, he
must take him before a magistrate to be examined as soon as he reasonably
can") (emphasis omitted).  The practice in the United States was the same.
See, e. g., 5 Am. Jur. 2d 15 76,77 (1962); Venable v. Huddy, 77 N. J. L.
351, 72 A. 10, 11 (1909); Atchison, T. & S. F. R. Co. v. Hinsdell, 76 Kan.
74, 76, 90 P. 800, 801 (1907); Ocean S.S. Co. v. Williams, 69 Ga. 251, 262
(1883); Johnson v. Mayor and City Council of Americus, 46 Ga. 80, 86-87
(1872); Low v. Evans, 16 Ind. 486, 489 (1861); Tubbs v. Tukey, 57 Mass.
438, 440 (1849) (warrant); Perkins, The Law of Arrest, 25 Iowa L. Rev. 201,
254 (1940).  Cf. Pepper v. Mayes, 81 Ky. 673 (1884).  It was clear,
moreover, that the only element bearing upon the reasonableness of delay
was, not such circumstances as the pressing need to conduct further
investigation, but the arresting officer's ability, once the prisoner had
been secured, to reach a magistrate who could issue the needed warrant for
further detention.  5 Am. Jur. 2d 15 76,77 (1962); 1 Restatement of Torts
MDRV 134 (Comment b) (1934); Keefe v. Hart, 213 Mass. 476, 482, 100 N. E.
558, 559 (1913); Leger v. Warren, 57 N. E. 506, 508 (Oh. 1900); Burk v.
Howley, 179 Pa. 539, 551, 36 A. 327, 329 (1897); Kirk & Son v. Garrett, 84
Md. 383, 405, 35 A. 1089, 1091 (1896); Simmons v. Vandyke, 138 Ind. 380,
384, 37 N. E. 973, 974 (1894) (dictum); Ocean S.S. Co. v. Williams, supra,
at 263; Hayes v. Mitchell, 69 Ala. 452, 455 (1881); Kenerson v. Bacon, 41
Vt. 573, 577 (1869); Green v. Kennedy, 48 N. Y. 653, 654 (1871); Schneider
v. McLane, 3 Keyes 568 (NY App. 1867); Annot., 51 L.R.A. 216 (1901).  Cf.
Wheeler v. Nesbitt, 24 How. 544, 552 (1860).  Any detention beyond the
period within which a warrant could have been obtained rendered the officer
liable for false imprisonment.  See, e. g., Twilley v. Perkins, 77 Md. 252,
265, 26 A. 286, 289 (1893); Wiggins v. Norton, 83 Ga. 148, 152, 9 S. E.
607, 608-609 (1889); Brock v. Stimson, 108 Mass. 520 (1871); Annot., 98
A.L.R. 2d 966 (1964). {1}
    We discussed and relied upon this common-law understanding in Gerstein,
see 420 U. S., at 114-116, holding that the period of warrantless detention
must be limited to the time necessary to complete the arrest and obtain the
magistrate's review.
"[A] policeman's on-the-scene assessment of probable cause provides legal
justification for arresting a person suspected of crime, and for a brief
period of detention to take the administrative steps incident to arrest.
Once the suspect is in custody . . . the reasons that justify dispensing
with the magistrate's neutral judgment evaporate."  Id., at 113-114
(emphasis added).

We said that "the Fourth Amendment requires a judicial determination of
probable cause as a prerequisite to extended restraint of liberty," id., at
114, "either before or promptly after arrest," id, at 125.  Though how
"promptly" we did not say, it was plain enough that the requirement left no
room for intentional delay unrelated to the completion of "the
administrative steps incident to arrest."  Plain enough, at least, that all
but one federal court considering the question understood Gerstein that
way.  See, e. g., Gramenos v. Jewel Companies, Inc., 797 F. 2d 432, 437
(CA7 1986), cert. denied, 481 U. S. 1028 (1987); Bernard v. Palo Alto, 699
F. 2d 1023, 1025 (CA9 1983) (per curiam); Fisher v. Washington Metropolitan
Area Transit Authority, 690 F. 2d 1133, 1140 (CA4 1982); Mabry v. County of
Kalamazoo, 626 F. Supp. 912, 914 (WD Mich. 1986); Sanders v. Houston, 543
F. Supp. 694, 699-701 (SD Tex. 1982), aff'd, 741 F. 2d 1379 (CA5 1984);
Lively v. Cullinane, 451 F. Supp. 1000, 1004 (DC 1978).  See also People ex
rel. Maxian v. Brown, 164 App. Div. 2d 56, 62-64, 561 N. Y. S. 2d 418,
421-422 (1990), aff'd, 77 N. Y. 2d 422 (1991); Note, Williams v. Ward:
Compromising the Constitutional Right to Prompt Determination of Probable
Cause Upon Arrest, 74 Minn. L. Rev. 196, 204 (1989).  But see Williams v.
Ward, 845 F. 2d 374 (CA2 1988), cert. denied, 488 U. S. 1020 (1989).
    Today, however, the Court discerns something quite different in
Gerstein.  It finds that the plain statements set forth above (not to
mention the common-law tradition of liberty upon which they were based)
were trumped by the implication of a later dictum in the case which,
according to the Court, manifests a "recognition that the Fourth Amendment
does not compel an immediate determination of probable cause upon
completing the administrative steps incident to arrest."  Ante, at 8
(emphasis added).  Of course Gerstein did not say, nor do I contend, that
an "immediate" determination is required.  But what the Court today means
by "not immediate" is that the delay can be attributable to something other
than completing the administrative steps incident to arrest and arranging
for the magistrate -- namely, to the administrative convenience of
combining the probable-cause determination with other state proceedings.
The result, we learn later in the opinion, is that what Gerstein meant by
"a brief period of detention to take the administrative steps incident to
arrest" is two full days.  I think it is clear that the case neither said
nor meant any such thing.
    Since the Court's opinion hangs so much upon Gerstein, it is worth
quoting the allegedly relevant passage in its entirety.

    "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.
While we limit our holding to the precise requirement of the Fourth
Amendment, we recognize the desirability of flexibility and experimentation
by the States.  It may be found desirable, for example, to make the
probable cause determination at the suspect's first appearance before a
judicial officer, . . . or the determination may be incorporated into the
procedure for setting bail or fixing other conditions of pretrial release.
In some States, existing procedures may satisfy the requirement of the
Fourth Amendment.  Others may require only minor adjustment, such as
acceleration of existing preliminary hearings.  Current proposals for
criminal procedure reform suggest other ways of testing probable cause for
detention.  Whatever procedure a State may adopt, it must provide a fair
and reliable determination of probable cause as a condition for any
significant pretrial restraint of liberty, and this determination must be
made by a judicial officer either before or promptly after arrest."  420 U.
S., at 123-125 (footnotes omitted; emphasis added).
    The Court's holding today rests upon the statement that "we recognize
the desirability of flexibility and experimentation."  But in its context
that statement plainly refers to the nature of the hearing and not to its
timing.  That the timing is a given and a constant is plain from the
italicized phrases, especially that which concludes the relevant passage.
The timing is specifically addressed in the previously quoted passage of
the opinion, which makes clear that "promptly after arrest" means upon
completion of the "administrative steps incident to arrest."  It is not
apparent to me, as it is to the Court, that on these terms "[i]ncorporating
probable cause determinations into the `procedure for setting bail or
fixing other conditions of pretrial release' . . . would be impossible,"
ante, at 8; but it is clear that, if and when it is impossible, Gerstein
envisioned that the procedural "experimentation," rather than the Fourth
Amendment's requirement of prompt presentation to a magistrate, would have
to yield.
    Of course even if the implication of the dictum in Gerstein were what
the Court says, that would be poor reason for keeping a wrongfully arrested
citizen in jail contrary to the clear dictates of the Fourth Amendment.
What is most revealing of the frailty of today's opinion is that it relies
upon nothing but that implication from a dictum, plus its own (quite
irrefutable because entirely value laden) "balancing" of the competing
demands of the individual and the State.  With respect to the point at
issue here, different times and different places -- even highly liberal
times and places -- have struck that balance in different ways.  Some
Western democracies currently permit the Executive a period of detention
without impartially adjudicated cause.  In England, for example, the
Prevention of Terrorism Act 1989, 15 14(4), 5, permits suspects to be held
without presentation and without charge for seven days.  12 Halsbury's
Stat. 1294 (4th ed. 1989).  It was the purpose of the Fourth Amendment to
put this matter beyond time, place and judicial predilection, incorporating
the traditional common-law guarantees against unlawful arrest.  The Court
says not a word about these guarantees, and they are determinative.
Gerstein's approval of a "brief period" of delay to accomplish
"administrative steps incident to an arrest" is already a questionable
extension of the traditional formulation, though it probably has little
practical effect and can perhaps be justified on de minimis grounds. {2}
To expand Gerstein, however, into an authorization for 48-hour detention
related neither to the obtaining of a magistrate nor the administrative
"completion" of the arrest seems to me utterly unjustified.  Mr. McLaughlin
was entitled to have a prompt impartial determination that there was reason
to deprive him of his liberty -- not according to a schedule that suits the
State's convenience in piggybacking various proceedings, but as soon as his
arrest was completed and the magistrate could be procured.
II
    I have finished discussing what I consider the principal question in
this case, which is what factors determine whether the postarrest
determination of probable cause has been (as the Fourth Amendment requires)
"reasonably prompt."  The Court and I both accept two of those factors,
completion of the administrative steps incident to arrest and arranging for
a magistrate's probable-cause determination.  Since we disagree, however,
upon a third factor -- the Court believing, as I do not, that "combining"
the determination with other proceedings justifies a delay -- we
necessarily disagree as well on the subsequent question, which can be
described as the question of the absolute time limit.  Any determinant of
"reasonable promptness" that is within the control of the State (as the
availability of the magistrate, the personnel and facilities for completing
administrative procedures incident to arrest, and the timing of "combined
procedures" all are) must be restricted by some outer time limit, or else
the promptness guarantee would be worthless.  If, for example, it took a
full year to obtain a probable-cause determination in California because
only a single magistrate had been authorized to perform that function
throughout the State, the hearing would assuredly not qualify as
"reasonably prompt."  At some point, legitimate reasons for delay become
illegitimate.
    I do not know how the Court calculated its outer limit of 48 hours.  I
must confess, however, that I do not know how I would do so either, if I
thought that one justification for delay could be the State's "desire to
combine."  There are no standards for "combination," and as we acknowledged
in Gerstein the various procedures that might be combined "vary widely"
from State to State.  420 U. S., at 123.  So as far as I can discern
(though I cannot pretend to be able to do better), the Court simply decided
that, given the administrative convenience of "combining," it is not so bad
for an utterly innocent person to wait 48 hours in jail before being
released.
    If one eliminates (as one should) that novel justification for delay,
determining the outer boundary of reasonableness is a more objective and
more manageable task.  We were asked to undertake it in Gerstein, but
declined -- wisely, I think, since we had before us little data to support
any figure we might choose.  As the Court notes, however, Gerstein has
engendered a number of cases addressing not only the scope of the
procedures "incident to arrest," but also their duration.  The conclusions
reached by the judges in those cases, and by others who have addressed the
question, are surprisingly similar.  I frankly would prefer even more
information, and for that purpose would have supported reargument on the
single question of an outer time limit.  The data available are enough to
convince me, however, that certainly no more than 24 hours is needed. {3}
    With one exception, no federal court considering the question has
regarded 24 hours as an inadequate amount of time to complete arrest
procedures, and with the same exception every court actually setting a
limit for probable-cause determination based on those procedures has
selected 24 hours.  (The exception would not count Sunday within the
24-hour limit.)  See Bernard v. Palo Alto, 699 F. 2d, at 1025; McGill v.
Parsons, 532 F. 2d 484, 485 (CA5 1976); Sanders v. Houston, 543 F. Supp.,
at 701-703; Lively v. Cullinane, 451 F. Supp., at 1003-1004.  Cf. Dommer v.
Hatcher, 427 F. Supp. 1040, 1046 (ND Ind. 1975) (24-hour maximum; 48 if
Sunday included), rev'd in part, 653 F. 2d 289 (CA7 1981).  See also
Gramenos v. Jewel Companies, Inc., 797 F. 2d, at 437 (four hours "requires
explanation"); Brandes, Post-Arrest Detention and the Fourth Amendment:
Refining the Standard of Gerstein v. Pugh, 22 Colum. J. L. & Soc. Prob.
445, 474-475 (1989).  Federal courts have reached a similar conclusion in
applying Federal Rule of Criminal Procedure 5(a), which requires
presentment before a federal magistrate "without unnecessary delay."  See,
e. g., Thomas, The Poisoned Fruit of Pretrial Detention, 61 N. Y. U. L.
Rev. 413, 450, n. 238 (1986) (citing cases).  And state courts have
similarly applied a 24-hour limit under state statutes requiring
presentment without "unreasonable delay."  New York, for example, has
concluded that no more than 24 hours is necessary from arrest to
arraignment, People ex rel. Maxian v. Brown, 164 App. Div. 2d, at 62-64,
561 N. Y.S. 2d, at 421-422, aff'd, 77 N. Y. 422 (1991).  Twenty-nine States
have statutes similar to New York's, which require either presentment or
arraignment "without unnecessary delay" or "forthwith"; eight States
explicitly require presentment or arraignment within 24 hours; and only
seven States have statutes explicitly permitting a period longer than 24
hours.  Brandes, supra, at 478, n. 230.  Since the States requiring a
probable-cause hearing within 24 hours include both New York and Alaska, it
is unlikely that circumstances of population or geography demand a longer
period.  Twenty-four hours is consistent with the American Law Institute's
Model Code.  ALI, Model Code of Pre-Arraignment Procedure MDRV 310.1
(1975).  And while the American Bar Association in its proposed rules of
criminal procedure initially required that presentment simply be made
"without unnecessary delay," it has recently concluded that no more than
six hours should be required, except at night.  Uniform Rules of Criminal
Procedure, 10 U.L.A. App., Criminal Justice Standard 10-4.1 (Spec. Pamph.
1987).  Finally, the conclusions of these commissions and judges, both
state and federal, are supported by commentators who have examined the
question.  See, e. g., Brandes, supra, at 478-485 (discussing national
24-hour rule); Note, 74 Minn., L. Rev., at 207-209.
    In my view, absent extraordinary circumstances, it is an "unreasonable
seizure" within the meaning of the Fourth Amendment for the police, having
arrested a suspect without a warrant, to delay a determination of probable
cause for the arrest either (1) for reasons unrelated to arrangement of the
probable-cause determination or completion of the steps incident to arrest,
or (2) beyond 24 hours after the arrest.  Like the Court, I would treat the
time limit as a presumption; when the 24 hours are exceeded the burden
shifts to the police to adduce unforeseeable circumstances justifying the
additional delay.
*  *  *
    A few weeks before issuance of today's opinion there appeared in the
Washington Post the story of protracted litigation arising from the arrest
of a student who entered a restaurant in Charlottesville, Virginia, one
evening, to look for some friends.  Failing to find them, he tried to leave
-- but refused to pay a $5 fee (required by the restaurant's posted rules)
for failing to return a red tab he had been issued to keep track of his
orders.  According to the story, he "was taken by police to the
Charlottesville jail" at the restaurant's request.  "There, a magistrate
refused to issue an arrest warrant," and he was released.  Washington Post,
Apr. 29, 1991, p. 1.  That is how it used to be; but not, according to
today's decision, how it must be in the future.  If the Fourth Amendment
meant then what the Court says it does now, the student could lawfully have
been held for as long as it would have taken to arrange for his
arraignment, up to a maximum of 48 hours.
    Justice Story wrote that the Fourth Amendment "is little more than the
affirmance of a great constitutional doctrine of the common law."  3 J.
Story, Commentaries on the Constitution 748 (1833).  It should not become
less than that.  One hears the complaint, nowadays, that the Fourth
Amendment has become constitutional law for the guilty; that it benefits
the career criminal (through the exclusionary rule) often and directly, but
the ordinary citizen remotely if at all.  By failing to protect the
innocent arrestee, today's opinion reinforces that view.  The common-law
rule of prompt hearing had as its primary beneficiaries the innocent -- not
those whose fully justified convictions must be overturned to scold the
police; nor those who avoid conviction because the evidence, while
convincing, does not establish guilt beyond a reasonable doubt; but those
so blameless that there was not even good reason to arrest them.  While in
recent years we have invented novel applications of the Fourth Amendment to
release the unquestionably guilty, we today repudiate one of its core
applications so that the presumptively innocent may be left in jail.
Hereafter a law-abiding citizen wrongfully arrested may be compelled to
await the grace of a Dickensian bureaucratic machine, as it churns its
cycle 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.  In my view, this is the image of a system of justice that has
lost its ancient sense of priority, a system that few Americans would
recognize as our own.
    I respectfully dissent.

 
 
 
 
 

------------------------------------------------------------------------------
1
    The Court dismisses reliance upon the common law on the ground that its
"vague admonition" to the effect that "an arresting officer must bring a
person arrested without a warrant before a judicial officer `as soon as he
reasonably can' " provides no more support than does Gerstein v. Pugh's,
420 U. S. 103 (1975), "promptly after arrest" language for the "inflexible
standard" that I propose.  Ante, at 9.  This response totally confuses the
present portion of my opinion, which addresses the constitutionally
permissible reasons for delay, with Part II below, which addresses (no more
inflexibly, I may say, than the Court's 48-hour rule) the question of an
outer time limit.  The latter -- how much time, given the functions the
officer is permitted to complete beforehand, constitutes "as soon as he
reasonably can" or "promptly after arrest" -- is obviously a function not
of the common law but of helicopters and telephones.  But what those
delay-legitimating functions are -- whether, for example, they include
further investigation of the alleged crime or (as the Court says) "mixing"
the probable-cause hearing with other proceedings -- is assuredly governed
by the common law, whose admonition on the point is not at all "vague":
Only the function of arranging for the magistrate qualifies.  The Court
really has no response to this.  It simply rescinds the common-law
guarantee.

2
    Ordinarily, I think, there would be plenty of time for "administrative
steps" while the arrangements for a hearing are being made.  But if, for
example, a magistrate is present in the precinct and entertaining
probablecause hearings at the very moment a wrongfully arrested person is
brought in, I see no basis for intentionally delaying the hearing in order
to subject the person to a cataloging of his personal effects,
fingerprinting, photo graphing, etc.  He ought not be exposed to those
indignities if there is no proper basis for constraining his freedom of
movement, and if that can immediately be determined.

3
    The Court claims that the Court of Appeals "concluded that it takes 36
hours to process arrested persons in Riverside County."  Ante, at 11.  The
court concluded no such thing.  It concluded that 36 hours (the time limit
imposed by the District Court) was "ample" time to complete the arrest, 888
F. 2d 1276, 1278 (CA9 1989), and that the county had provided no evidence
to demonstrate the contrary.  The District Court, in turn, had not made any
evidentiary finding to the effect that 36 hours was necessary, but for
unexplained reasons said that it "declines to adopt the 24 hour standard
[generally applied by other courts], but adopts a 36 hour limit, except in
exigent circumstances."  McLaughlin v. County of Riverside, No. CV87-5597
RG (CD Cal., Apr. 19, 1989).  2 App. 332.  Before this Court, moreover, the
county has acknowledged that "nearly 90 percent of all cases . . . can be
completed in 24 hours or less," Brief for District Attorney, County of
Riverside, as Amicus Curiae 16, and the examples given to explain the other
10 percent are entirely unpersuasive (heavy traffic on the Southern
California freeways; the need to wait for arrestees who are properly
detainable because they are visibly under the influence of drugs to come
out of that influence before they can be questioned about other crimes; the
need to take blood and urine samples promptly in drug cases) with one
exception: awaiting completion of investigations and filing of
investigation reports by various state and federal agencies.  Id., at
16-17.  We have long held, of course, that delaying a probable-cause
determination for the latter reason -- effecting what Judge Posner has
aptly called "imprisonment on suspicion, while the police look for evidence
to confirm their suspicion," Llaguno v. Mingey, 763 F. 2d 1560, 1568 (CA7
1985) -- is improper.  See Gerstein, 420 U. S., at 120, n. 21, citing
Mallory v. United States, 354 U. S. 449, 456 (1957).
