Most importantly, material witness detentions are not supposed to be used to detain persons suspected of criminal activity, lest any lower standards be used as an end-run around the normal protections afforded the accused in our criminal justice system, (143) Because 48-hour holds are routinely used to detain persons themselves suspected of a crime who end up being charged with a crime, they are not properly characterized as material witness detentions, and attempts to justify them in that way would be improper.
"Immigration Holds." A related creature is the "immigration hold," authorized by the federal immigration code. (144) An "immigration hold," also called a "detainer," applies to a noncitizen suspect being held in federal, state, or local custody after arrest on narcotics charges whose release may be imminent. (145) A federal immigration officer may request such a person's detention be prolonged, since drug-related charges provide sufficient grounds for removability (deportation). (146) If the custodial law enforcement agency complies, the alien may be detained for up to 48 additional hours. (147) After 48 hours, the alien must either be released, or be arrested by United States Immigration and Customs Enforcement (ICE) officers for removal proceedings. (148)
Unlike with a 48-hour hold, where (1) there is no statutory authorization, (2) it applies to all types of defendants, and (3) individualized suspicion is often lacking, an immigration hold is expressly authorized by federal statute, applies only to narcotics arrestees, (149) and is based on a preexisting conviction or probable-cause-based detention concerning a narcotics charge that is clearly grounds for deportation. (150) For that reason, immigration holds seem materially distinct from 48-hour holds. The existence of immigration holds (assuming their constitutionality) does not necessarily constitute support for the constitutionality of the typical "48-hour hold" practice.
Regardless of whether immigration holds are in fact distinct from 48-hour holds, the question naturally arises as to whether the former are constitutional. Noncitizens within the United States have due process protections against unreasonable seizure. (151) Therefore, one might argue that immigration holds violate the noncitizen suspect's constitutional rights by improperly extending their detention. But the Supreme Court has already held that noncitizens can be detained without bail during a removal proceeding. (152) This is so because Congress has an interest in assuring that noncitizens will comply with the requirements of the removal proceedings and that they will actually show up at their hearing. (153) As long as the "immigration hold" suspect's initial detention by the other law enforcement agency for a (deportation-eligible) narcotics charge was based on probable cause, there is necessarily probable cause to believe the suspect is deportable. Thus, the extended detention for the additional 48 hours is more in the nature of being denied bail and being detained as a flight risk something that the Court has already approved.
However, there is evidence to suggest that ICE often exceeds the authority granted by Congress and uses the detainer procedure illegally. (154) The two most common abuses occur when ICE issues detainers without an initiating request from the local law enforcement officials, and when ICE is lodging detainers upon individuals who have not been arrested for controlled substance offences. (155) Thus, while the detainer procedure might not fail the constitutional test for the same reasons the "48-hour hold" does, the procedure seems to be abused, imposing unconstitutional restraints upon noncitizens.
Forty-Eight-Hour Holds' Violation of the Requirement
As practiced, 48-hour holds run contrary to the basic requirement of probable cause before a person can be arrested. Although some defenders of the practice have claimed that 48-hour hold orders are issued only upon probable cause (156)--for example, the forms used in Shelby County, Tennessee, contain a boilerplate recitation of "probable cause" being found (157)--there is good reason to believe that 48-hour holds, as practiced in Tennessee, have not, in fact, required probable cause.
First, official statements from the courts authorizing 48-hour holds in Shelby County acknowledge as much. One example is the 2012 report submitted by the Shelby County General Sessions Court to the Shelby County Commission, which states that "[t]he 48 [hour] hold does not quite have the probable cause needed for charging as in an Affidavit of Complaint." (158) Another example is a memorandum from the Judicial Commissioners within that court, who actually issue the 48-hour hold orders. (159) This memorandum recited a standard of "reasonably, articulable [sic] suspicion" that "an offense has occurred." (160) This is clearly the "reasonable suspicion" standard of Terry v. Ohio a standard which is lower than that of probable cause, (161)' and undoubtedly insufficient to justify an arrest. (162)
Second, as a federal district court has found, in Lauderdale County, the policy itself "specifically authorized law enforcement officials to detain individuals in the Lauderdale County Jail for up to 48 hours, for the purpose of conducting further investigation, without probable cause to believe that the individuals being detained had committed an offense." (163) In a resulting federal civil rights action, Lauderdale County admitted that its 48-hour hold policy authorized detention on less than probable cause, and the court thus found that Lauderdale's policy violated the Constitution. (164) In proceedings related to this federal lawsuit, the Lauderdale County Sheriff admitted under oath that, until 2010, the Lauderdale policy had allowed for 48-hour detentions without charge or probable cause. (165)
Third, law enforcement agents in Shelby County made similar admissions under oath in other cases, including Bishop.166 The appellate court in that case found that, despite boilerplate recitations that the defendant was being held "on probable cause," the record failed to establish that the magistrate's signing off on the 48-hour hold form was in fact "a true judicial determination of probable cause." (167)
Fourth, individual examples of 48-hour hold orders in other cases from Shelby County, Tennessee reflect instances where such orders were issued based on recitations of facts supporting less than probable cause. The forms used in such orders contain a blank for law enforcement to recite the "reason(s) for requesting detention"; this is the only place on the form where any basis for the detention is provided. (168) In a number of instances, that part of the form contained nothing more than mere conclusory assertions of suspected criminal activity. In one case, for example, the form merely recited that a named victim was assaulted at a particular time and place by the defendant, without reciting any basis for believing the defendant was the culprit. It then simply adds that "[a]dditional time is needed to review the sexual assault kit, review the evidence, conduct interviews and show photo line ups." (169) In another, the form merely stated that the defendant "has been implicated as being responsible" for an identified homicide and adds that "[a] '48 Hour Hold' is hereby requested for investigation by the MPD Homicide Bureau." (170) In both cases, the form continues that "It]he Court has reviewed the above listed facts" and "has determined there is probable cause." These conclusory allegations are textbook examples of the kinds of "bare bones" affidavits that the Supreme Court has held do not provide probable cause. (171)
The Bishop case, which finally triggered a suspension of the holds in Shelby County, provides another good example. In that case, the 48-hour hold form recites simply that the victim was shot and that "[d]uring the investigation the defendant was named as the shooter." (172) Here, at least, law enforcement expressly asserted that there was evidence linking the defendant to the crime, which is more than the two instances discussed above. But no information was provided about who named the defendant, let alone his or her basis of knowledge or reliability. (173) It is therefore difficult to say that a showing of probable cause was made.
That is not to say that there have not been instances, even many instances, in which a 48-hour hold was obtained where there was indeed probable cause to suspect the detainee was guilty of the particular crime referenced in the 48-hour hold order. But as practiced in Tennessee, the procedure has allowed numerous, if not routine, non-Terry detentions without probable cause.
Defenses of the Departure from the Requirement
Some defenders of the practice have suggested probable cause to hold a suspect for 48 hours for investigation is different from, and less demanding than, probable cause to "get charged." (174) Or, stated differently, that a lower level of probable cause than the normal level needed for an arrest would apply because a 48-hour hold is "less than an arrest." (175) Indeed, the Shelby County Judicial Commissioners Report implies this kind of regime of multiple layers of probable cause when it reports that the hold "does not quite have the probable cause needed for charging" (176)--suggesting, perhaps, that there is a lower level of probable cause adequate for the more limited detention involved in 48-hour holds. This suggestion reflects a more general misunderstanding of the requirement of probable cause among local law enforcement officers and judges.
This defense of 48-hour holds will not hold (so to speak). There is only one level of "probable cause." It is either present or it is not. If present, the proper course is to arrest and charge the defendant. If it is not present, the defendant may not be brought into custody, and may not be detained at all (except for a...