Prompt Presentment Requirement

• Jurisdiction: Maryland

XI. Prompt presentment requirement

In McNabb v. United States, 318 U.S. 332 (1943), the Supreme Court recognized:

[Legislation] requiring that arrested persons be promptly taken before a committing authority, appears on the statute books of nearly all states.

A democratic society, in which respect for the dignity of all men is central, guards against the misuse of the law enforcement process. Zeal in tracking down crime is not an assurance of soberness of judgment, and it does not ensure that law enforcement will not disregard cherished liberties. Experience counsels that safeguards must be provided against the dangers of overzealous police and prosecutors. The instruments of the criminal law cannot be entrusted to a single functionary.

The complicated process of criminal justice is therefore divided into several parts, responsibility for which is separately vested in various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that police, with reasonable promptness, show legal cause for detaining arrested persons, constitutes an important safeguard—not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. . . . It aims to avoid all the evil implications of secret interrogation of persons accused of crime.

Id. at 343-44.

A. Constitutional requirement

If the defendant is arrested without a warrant, the Fourth Amendment requires that the defendant be taken for an initial appearance before a judicial officer promptly to determine whether the arrest was supported by probable cause. Gerstein v. Pugh, 420 U.S. 103, 117-18 (1975). Forty-eight hours is presumptively prompt. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). The only constitutional purpose of an initial appearance, following a warrantless arrest, is to determine the validity of the arrest—after the fact—in a manner similar to determining the validity of an arrest—before the fact—when the arrest is based on an arrest warrant.

Because the initial appearance is solely to determine the validity of the Fourth Amendment seizure of the defendant, it is a non-adversarial preliminary hearing. Gerstein, 420 U.S. at 120. It is not an adversarial preliminary hearing because judicial adversarial proceedings (formal charges) have not yet commenced, and it is not a trial-like confrontation. Id. at 120-21. If the defendant is arrested pursuant to an arrest warrant or a grand jury indictment, there is no constitutional requirement for presentment before a judicial officer because there has already been a neutral determination of probable cause. Id. at 117 n.18.

B. Requirement under federal law

Under federal law, if the defendant is arrested, with or without an arrest warrant, the defendant must be taken before a federal magistrate judge without unnecessary delay. Fed. R. Crim. P. 5(a)(1)(A).

C. Requirement under Maryland law

Under Maryland law, if the defendant is arrested, with or without an arrest warrant, the defendant must be taken for an initial appearance before a court commissioner (judicial officer, but not a judge) in District Court, without unnecessary delay and in no event later than 24 hours after arrest. Shope v. State, 41 Md. App. 161, 165-66, cert. denied, 284 Md. 748 (1979) (presentment requirement is mandatory). In Circuit Court, the defendant must be taken for an initial appearance before a judge without unnecessary delay and in no event later than the next court session. Md. Rule 4-212(e) and (f).

D. Waiver of, and permissible delay in, prompt presentment

A defendant may waive the right to prompt presentment, provided such a waiver is knowing, intelligent, and voluntary. Logan v. State, 289 Md. 460, 469-70 (1981); Perez v. State, 168 Md. App. 248 (2006). A waiver of Miranda rights is not necessarily a waiver of the right to prompt presentment. Johnson v. State, 282 Md. 314, 332 (1978); see Simkus v. State, 296 Md. 718, 730-32 (1983). A delay to obtain information likely to aid in averting harm to others or loss to property of substantial value will excuse a violation of the prompt presentment rule. Collins v. State, 52 Md. App. 186, 192-93 (1982), aff'd, 296 Md. 670 (1983).

E. Remedy for failure to comply with the prompt presentment requirement

1. Fourth Amendment

If a defendant is validly arrested, there is no remedy, under the Fourth Amendment, for the Government's failure to comply with the prompt presentment requirement. See Powell v. Nevada, 511 U.S. 79, 84 (1994). If a defendant is validly arrested, and gives a statement that complies with the Fifth Amendment requirements under Miranda and voluntariness and Maryland's "promises and inducements," there is no remedy for the Government's failure to comply with the prompt presentment requirement.

In Gerstein, 420 U.S. at 126, the Supreme Court held that "the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention. . . ." If a defendant is arrested and presented for a probable cause determination within 48 hours, there is presumptively no Fourth Amendment violation and the detaining jurisdiction will be "immune from systemic challenges" under the Fourth Amendment. McLaughlin, 500 U.S. at 57. Simply because a probable cause determination occurs within 48 hours, however, does not mean there is automatic compliance with the Fourth Amendment. In McLaughlin, the Supreme Court stated:

[A] hearing may 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

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