'Hold' on: the remarkably resilient, constitutionally dubious 48-hour hold.

• Author: Mulroy, Steven J.
• Position: Introduction to II. Investigative Detentions A. Probable Cause 1. The Requirement and its (Limited

ABSTRACT

This Article discusses the surprisingly widespread, little-known practice of "48-hour holds," where police detain a suspect--without charge or access to bail for up to 48 hours to continue their investigation; at the end of 48 hours, they either charge or release him. Although it has not been discussed in the scholarly literature, this practice has occurred in a number of large jurisdictions over the past few decades, and continues today in some of them. The "holds" often take place,

admittedly or tacitly, without the probable cause needed to charge a defendant, and thus in violation of the Fourth Amendment. Even with probable cause, this Article argues, it is constitutionally problematic to deliberately detain a person for 48 hours without charging him with a crime. This Article traces the development of the practice over the last few decades, including its surprising persistence despite repeated (though sporadic) criticism by courts and the media. It rejects the justifications for the practice asserted by its defenders and suggests that the practice improperly allows the prosecution to achieve two "end runs" around normal procedural protections. First, the practice allows detention for 48 hours without starting the clock for a prompt bail determination. Second, it delays for 48 hours the point at which the Sixth Amendment right to counsel protections against interrogation attach, thus allowing an extra 48 hours for the police to "sweat" the defendant and potentially achieve confessions.

Contents Introduction I. Recent Practice A. Generally B. In Tennessee II. Investigative Detentions A. Probable Cause 1. The Requirement and Its (Limited) Exceptions 2. Forty-Eight-Hour Holds' Violation of the Requirement 3. Defenses of the Departure from the Requirement B. Origins of the Practice III. Arrests Without Charge A. Generally B. Reasons for Desiring a Charge-Free Alternative C. Bail D. Right to Counsel Conclusion INTRODUCTION

For the past several decades, a number of local jurisdictions around the country have had a publicly acknowledged, routinized procedure for holding criminal suspects against their will for up to 48 hours without charging them with a crime, in order for the police to continue their investigation of the suspect. In many (if not most) cases, this was done without proof amounting to probable cause either with no judicial scrutiny or judicial scrutiny that was pro forma at best. In all cases, there was no formal charge; thus, there was no access to bail, or a bail hearing, or starting of the clock for a prompt bail determination. Suspects were routinely interrogated during this period. At the end of the prescribed period variously 20 to 72 hours, but usually 48 the suspect would either be charged or released. (1) Despite occasional criticism of this practice by courts, the bar, and the press, the practice continued, resulting in many thousands of such detentions.

These policies and practices occurred in various jurisdictions around the United States, at various periods of time, with some continuing to the present day. Jurisdictions with this practice include Chicago, Illinois, which had a written police policy from 1978 to 1986 (2) and a recorded complaint as late as November 2002; (3) Austin, Texas throughout the 1970s and 1980s, (4) which has never formally been discontinued, and an unofficial policy in Missouri at least throughout the 1990s. (5) An even more aggressive version from Orleans Parish, Louisiana, purported to allow a magistrate to extend a detention by 48 hours even after finding no probable cause. (6) This practice occurred within the last few years.

While the maximum period involved is 48 hours, shorter periods are sometimes used. For example, relying on a state statute requiring warrantless arrestees to be charged within 20 hours or released, local authorities in Missouri have deliberately detained persons without charge on "20-hour hold[s]." (7) In some Missouri jurisdictions, there was an "unwritten policy" of automatically holding all domestic violence suspects for the full statutory 20-hour period. (8) In at least one case, police adhered to this policy even after a judge ordered such a suspect released. (9) Litigants in Michigan have alleged a similar unofficial policy regarding domestic violence suspects. (10) At least one federal court has suggested that such a deliberate policy of extensive detention without charge, despite the availability of a magistrate, aright violate the Fourth Amendment. (11)

At the other temporal extreme is Cleveland, Ohio. Until as recently as last year, the Cleveland Police Department had a policy of detaining persons without charge for up to 72 hours. At the end of this period, the suspect would either be formally charged or released. (12) An administrative law judge discontinued the practice in 2012. (13)

But, by far, the broadest practice is in Tennessee, where several jurisdictions have had internal policies of placing certain suspects "on 48-hour hold," did so fairly frequently, and in some cases, still do. (14) The purpose of the hold has been to allow the police extra time to develop their investigation. If the investigation is fruitful, the suspect would be charged; if not, he would be released. Sometimes these detentions were done by court order and sometimes on the authority of law enforcement alone. In no case was it expressly authorized by statute or court rule.

In one 10-day period in 2012, three separate developments focused attention on this little-discussed, surprisingly frequent, and constitutionally suspect practice. On March 14, the Tennessee Court of Criminal Appeals reversed a first-degree murder conviction in a scathing opinion criticizing the use of "48-hour hold[s]" by the Memphis Police Department. (15) This was the third time this court had issued an opinion criticizing the practice. (16) Independently, on March 21, the County Commission for Shelby

County, Tennessee, (which includes Memphis) conducted a previously scheduled hearing on the use of 48-hour holds. The supervising judge of the court approved such holds in Shelby County and defended the practice. (17) Two days later, a federal district court issued an opinion after a bench trial holding the sheriff of nearby Lauderdale County, Tennessee, liable under [section] 1983 for continuing the practice despite a 2010 court order enjoining it. (18)

This confluence of events triggered sustained media attention and controversy, (19) including editorials questioning the practice (20) and statements from the police and prosecutors' offices defending it. (21) Within a week, the uproar resulted in a decision to discontinue the practice in Shelby County. (22) But both the chief judge overseeing the practice in that county (23) and the District Attorney helping to implement it (24) continued thereafter to defend the holds, and the District Attorney announced that the State would appeal the case finding the practice unconstitutional to the Tennessee Supreme Court. (25) Additionally, the practice continued until 2012 in Lauderdale County, (26) and apparently still continues in Tipton County, (27) as well as Hardeman and McNairy Counties the other counties in the state's 25th Judicial District. (28)

Although apparently rare, the practice survives in Tennessee's 31st...