The First 48: Ending the Use of Categorically
Unconstitutional Investigative Holds in Violation of
County of Riverside v. McLaughlin
DANIEL A. HORWITZ *
Table of Contents
I. INTRODUCTION
II. DIVERGING AUTHORITY
III. THE PROPER INTERPRETATION OF THE GERSTEIN/MCLAUGHLIN RULE
A. The Constitutional (In)significance of a Probable Cause Determination Made by an
Arresting Officer
B. The Continued Survival of Gerstein’s “Administrative Steps” Requirement After
McLaughlin
C. The Propriety of Continuing an Investigation While Administrative Steps Are
Simultaneously Being Completed
D. Rendering McLaughlin’s Prohibition on Investigative Detentions Superfluous
E. Undermining the Underlying Purpose of Gerstein and McLaughlin
IV.
CONCLUSION
I. INTRODUCTION
In the landmark criminal procedure case Gerstein v. Pugh, the U.S. Supreme Court held
that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite
to extended restraint of liberty following arrest.” 1 Just how “prompt[ly]” such a probable cause
determination must be made, however, was never defined by the Gerstein Court. 2 Instead, the
Court simply explained that “a policeman’s on-the-scene assessment of probable cause provides
legal justification for . . . a brief period of detention to take the administrative steps incident to
* Daniel Horwitz is an appellate attorney in Nashville, Tennessee. He is a graduate of Vanderbilt Law School and a
former judicial law clerk to Tennessee Supreme Court Justice Sharon G. Lee. The author expresses his thanks to R.
Andrew Free for his thorough insight and thoughtful analysis.
1
Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
2
See id.; see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991) (“In Gerstein . . . , 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.”);
Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 CASE W. RES.
L. REV. 815, 846 (2013) (“The Gerstein Court provided no guidance as to how ‘promptly’ after the warrantless
arrest the Gerstein hearing must be.”).

1

Electronic copy available at: http://ssrn.com/abstract=2563605

arrest” before a person who has been arrested without a warrant must be afforded “a neutral
determination of probable cause” by a judge or magistrate. 3
Finding Gerstein’s “brief period of detention to take the administrative steps incident to
arrest” 4 standard to be insufficiently precise in practice, in County of Riverside v. McLaughlin,
the Supreme Court endeavored “to articulate more clearly the boundaries of what is permissible
under the Fourth Amendment” by establishing a burden-shifting rule that set forty-eight hours as
the pivotal dividing line. 5 Under McLaughlin, if the government does not afford a warrantless
arrestee a judicial determination of probable cause (known as a “Gerstein hearing” 6) within the
first forty-eight hours of his or her arrest, then the government bears the burden of proving that
“a bona fide emergency or other extraordinary circumstance” justified the delay. 7 In contrast,
however, if a warrantless arrestee does receive a Gerstein hearing within the first forty-eight
hours of being arrested, then it is the arrestee who bears the burden of proving that his or her
Gerstein hearing was delayed unreasonably. 8
Emphasizing with some force that McLaughlin’s burden-shifting rule was not intended to
convey the erroneous impression that a “probable cause determination in a particular case passes
constitutional muster simply because it is provided within 48 hours[,]” 9 the Supreme Court
provided three examples of delays to an arrestee’s Gerstein hearing that remained categorically
impermissible—even if they were modest in length, and even if they occurred within the first
forty-eight hours of an arrest. Specifically, the McLaughlin Court identified: “[1] delays for the
3

Gerstein, 420 U.S. at 113–14.
Id. at 114.
5
McLaughlin, 500 U.S. at 56.
6
The judicial determination of probable cause to which all warrantless arrestees are constitutionally entitled is
commonly referred to as a “Gerstein hearing.” See, e.g., United States v. Daniels, 64 F.3d 311, 313 (7th Cir. 1995)
(“[Defendant] claims that he failed to receive a timely judicial determination of probable cause to support his arrest,
commonly referred to as a Gerstein hearing.”). This Article adopts that terminology.
7
McLaughlin, 500 U.S. at 57.
8
Id. at 56.
9
Id.
4

2

Electronic copy available at: http://ssrn.com/abstract=2563605

purpose of gathering additional evidence to justify the arrest, [2] a delay motivated by ill will
against the arrested individual, or [3] delay for delay’s sake” as “[e]xamples of unreasonable
delay[s]” that violate the Fourth Amendment’s protection against unreasonable seizures under all
circumstances. 10
Strangely, however, and despite the Supreme Court’s admonition that McLaughlin’s three
examples of unreasonable delays were indeed just “[e]xamples,” 11 numerous courts have held
that because McLaughlin only expressly prohibited delays “for the purpose of gathering
additional evidence to justify [an] arrest,” 12 McLaughlin must therefore permit delays for the
purpose of gathering additional evidence if law enforcement has already acquired sufficient
evidence to justify the defendant’s arrest in the first place. 13 Consequently, these courts have
held that deliberately delaying a warrantless arrestee’s Gerstein hearing for investigative reasons
does not violate the Fourth Amendment so long as law enforcement had probable cause to
support the defendant’s arrest at the time the defendant was arrested. 14

This Article critiques

this holding, arguing instead that law enforcement may never intentionally delay a warrantless

10

Id.
Id.
12
Id. (emphasis added).
13
See, e.g., United States v. Daniels, 64 F.3d 311, 314 (7th Cir. 1995) (emphasis added) (“[The arrestee’s] argument
seems to interpret [McLaughlin] to preclude law enforcement from bolstering its case against a defendant while he
awaits his Gerstein hearing; that is a ludicrous position. Gerstein and its progeny simply prohibit law enforcement
from detaining a defendant to gather evidence to justify his arrest, which is a wholly different matter. Probable
cause to arrest [the defendant] already existed . . . . We therefore reject [the defendant’s] contention that he did not
receive a prompt Gerstein hearing.”); Otis v. State, 217 S.W.3d 839, 847 (Ark. 2005) (“[The arrestee] argues that
[his judicial probable cause] determination was unreasonably delayed due to the investigating officers’ desire to find
more evidence. However, . . . the McLaughlin [C]ourt condemned as unreasonable a search for additional evidence
only when the evidence is being sought in order to justify the arrest. Here, because [the defendant] confessed to the
shooting shortly after being brought to the police station, the officers already had a sufficient amount of evidence to
justify his arrest. As such, there was no unreasonable delay . . . .”); State v. Brown, 2014 WL 4384954, at *16
(Tenn. Crim. App. Sept. 5, 2014) (“In this case, . . . there was probable cause to arrest Defendant. . . . Any delay in
a judicial determination in this case was not shown to be ‘for the purpose of gathering additional evidence to justify
the arrest’ . . . . The officers were simply trying to verify Defendant's alibi.”).
14
See, e.g., Daniels, 64 F.3d at 314–15; Otis, 217 S.W.3d at 847–48; Brown, 2014 WL 4384954, at *15.
11

3

arrestee’s constitutional right to a judicial determination of probable cause for investigative
reasons under any circumstances.
Although this issue has largely escaped review within academic literature, the practice of
employing investigative detentions against warrantless arrestees is relatively widespread among
law enforcement. 15 Of note, whether such detentions comport with the Fourth Amendment has
also generated a circuit split between the Eighth Circuit Court of Appeals and one of two
irreconcilable lines of authority within the Seventh Circuit Court of Appeals. The issue has
similarly divided the appellate courts of at least nine states.
Part II of this Article explores the divergence of authority that has resulted from the
Supreme Court’s holding in McLaughlin.
Part III argues that the conclusion reached by several courts that police may intentionally
delay a warrantless arrestee’s Gerstein hearing for the purpose of further investigation so long as
probable cause existed to justify the defendant’s arrest in the first place is inconsistent with the
Fourth Amendment for five separate reasons. First, this conclusion confounds the essential
distinction between a judicial determination of probable cause, which is a constitutional right,
and a probable cause determination made by law enforcement, which carries no constitutional
significance. Second, it violates the “administrative purpose” requirement initially established
by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits
law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary
reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one
hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the
other, continuing an investigation while the administrative steps leading up to a warrantless

15

See generally Mulroy, supra note 2, at 816–19 (discussing use of forty-eight hour holds by law enforcement in
several jurisdictions throughout the United States).

4

arrestee’s Gerstein hearing are simultaneously being completed. Fourth, such a holding renders
McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to
justify [an] arrest” 16 superfluous, because all arrests that are unsupported by probable cause are
already prohibited by the Fourth Amendment. Fifth, by introducing hindsight bias into probable
cause determinations and by allowing a substantial number of warrantless arrests to evade
judicial review of any kind, this holding substantially diminishes the value of the check on law
enforcement that Gerstein was meant to provide.
Part IV concludes that the Supreme Court should resolve the existing split of authority by
holding that law enforcement may never intentionally delay a warrantless arrestee’s
constitutional right to a judicial determination of probable cause for investigative reasons under
any circumstances.
II. DIVERGING AUTHORITY
Relying on the fact that the Supreme Court’s decision in McLaughlin only expressly
prohibited delays “for the purpose of gathering additional evidence to justify [an] arrest,” 17
several courts have cited McLaughlin for the proposition that law enforcement may delay a
warrantless arrestee’s Gerstein hearing for the purpose of further investigation if police have
already developed sufficient evidence to justify the defendant’s arrest in the first place. Of note,
this issue is also the subject of a circuit split between the Eighth Circuit and one of two
irreconcilable lines of authority within the Seventh Circuit, and it has similarly separated the
appellate courts of Alaska, Arkansas, Indiana, New York, North Carolina, and Tennessee from
those of California, Massachusetts, and Michigan.

16
17

McLaughlin, 500 U.S. at 56.
Id. (emphasis added).

5

Following McLaughlin, the view that delaying a warrantless arrestee’s Gerstein hearing
for investigative reasons is categorically prohibited by the Fourth Amendment was first and most
forcefully articulated by the Seventh Circuit in Willis v. City of Chicago. 18 In Willis, the Seventh
Circuit held that even within the first forty-eight hours of an arrest—and even if law enforcement
already has sufficient evidence to justify an arrest—the Fourth Amendment still prohibits law
enforcement from delaying a warrantless arrestee’s Gerstein hearing for the purpose of allowing
police to investigate the arrestee’s participation in other crimes. 19 Subsequently, in Lopez v. City
of Chicago, the Seventh Circuit extended the reasoning of Willis to its logical conclusion by
holding unequivocally that “delays for the purpose of gathering additional evidence are per se
unreasonable under McLaughlin.” 20
The Eighth Circuit has also adopted the view that delaying a warrantless arrestee’s
Gerstein hearing for investigative reasons violates the Fourth Amendment. In United States v.
Davis, for example, the Eighth Circuit held that even assuming that probable cause existed to
arrest a defendant, a mere two-hour delay in the defendant’s Gerstein hearing was still
unreasonable where the sole purpose of the delay was to promote further investigation by law
enforcement. 21 This view of McLaughlin has also been adopted with varying degrees of clarity
by the appellate courts of California, 22 Massachusetts, 23 and Michigan, 24 as well as federal
district courts in Illinois, 25 Washington, 26 and Wisconsin. 27

18

999 F.2d 284, 289 (7th Cir. 1993).
Id. at 288–89.
20
Lopez v. City of Chicago, 464 F.3d 711, 714 (7th Cir. 2006).
21
United States v. Davis, 174 F.3d 941, 944 (8th Cir. 1999).
22
People v. Jenkins, 122 Cal. App. 4th 1160, 1175–76 (2004) (holding that a sixteen-hour delay in a defendant’s
Gerstein hearing was unlawful where the purpose of the delay was to question the defendant about shootings,
notwithstanding the officer’s lawful arrest of the defendant for a traffic violation which was supported by probable
cause).
23
Commonwealth v. Woodley, No. 9211358, 1993 WL 818559, at *7 (Mass. Super. Ct. Oct. 12, 1993) (“It is well
established, moreover, that a delay is unreasonable when it is contrived by the police to elicit incriminating
statements.”).
19

6

In direct contrast to these cases, however, numerous other courts have expressed the view
that the Fourth Amendment does not prohibit law enforcement from intentionally delaying a
warrantless arrestee’s Gerstein hearing for the purpose of further investigation if the police have
already developed sufficient evidence to justify the defendant’s arrest in the first place. Oddly,
the most pointed authority for this position emanates from a series of cases decided by the
Seventh Circuit as well. First, in United States v. Daniels, the Seventh Circuit emphatically
rejected the argument that McLaughlin categorically prohibits delaying a warrantless arrestee’s
Gerstein hearing for investigative reasons. Describing such a claim as “a ludicrous position,” the
Daniels court explained that:
[The arrestee’s] argument seems to interpret
[McLaughlin] to preclude law enforcement from
bolstering its case against a defendant while he
awaits his Gerstein hearing; that is a ludicrous
position. Gerstein and its progeny simply prohibit
law enforcement from detaining a defendant to
gather evidence to justify his arrest, which is a
wholly different matter. Probable cause to arrest
[the defendant] already existed . . . . We therefore
reject [the defendant’s] contention that he did not
receive a prompt Gerstein hearing. 28
Confronting the question again two years later in United States v. Sholola, the Seventh
Circuit extended Daniels even further by holding that:

24

Artley v. City of Detroit, No. 199080, 1998 WL 1990893, at *3 (Mich. Ct. App. July 17, 1998) (“Plaintiff
correctly asserts that even where a judicial determination of probable cause is held within forty-eight hours, a
plaintiff arrested without a warrant has an opportunity to prove that the determination was unreasonably delayed . . .
. Here, plaintiff asserts that the purpose of the delay in this case was to elicit an incriminating statement from her.”).
25
Cornish v. Papis, 962 F. Supp. 1103, 1110 (C.D. Ill. 1997) (emphasis added) (rejecting defendant’s McLaughlin
challenge where the delay “was not to enable the police to locate some incriminating evidence or to build a case
against [him]”).
26
United States v. Garcia, No. CR99-172WD, 1999 WL 1499258, at *2–3 (W.D. Wash. June 30, 1999) (finding a
McLaughlin violation where “the delay resulted from the officers’ use of [the arrestee] to gather evidence”).
27
Farr v. Paikowski, No. 11-C-789, 2013 WL 160268, at *7 (E.D. Wis. Jan. 14, 2013) (“The defendants concede
that the real purpose for arresting [the plaintiff] was simply to interrogate her . . . . This concession renders [her]
detention per se unreasonable under Gerstein.”).
28
United States v. Daniels, 64 F.3d 311, 314 (7th Cir. 1995) (emphasis added).

7

Under the clear and straightforward logic of our
decision in Daniels, police may conduct further
investigation of a crime to “bolster” the case against
a defendant while the defendant remains in custody,
and they may likewise hold an individual while
investigating other crimes that he may have
committed, so long as they have sufficient evidence
to justify holding the individual in custody in the
first place. 29
The Seventh Circuit’s decisions in Daniels and Sholola are not realistically compatible
with either the Eight Circuit’s decision in Davis or its own holdings in Willis and Lopez that
“delays for the purpose of gathering additional evidence are per se unreasonable under
McLaughlin.” 30 Even so, however, neither Daniels nor Sholola has been overruled, and district
courts within the Seventh Circuit continue to rely on both of these cases in an unsuccessful
attempt to reconcile the two conflicting lines of authority. 31
Further reflecting the ongoing conflict over the correct interpretation of McLaughlin, the
precise reasoning articulated by the Seventh Circuit in Daniels and Sholola also appears
unmistakably in decisions reached by appellate courts in Alaska, 32 Arkansas, 33 Indiana, 34 and
Tennessee. 35 For example, in Otis v. State, the Arkansas Supreme Court held that:
29

United States v. Sholola, 124 F.3d 803, 820 (7th Cir. 1997).
Lopez v. City of Chicago, 464 F.3d 711, 714 (7th Cir. 2006). The author is not the first commentator to recognize
this split of authority. See Mark J. Goldberg, Note, Weighing Society’s Need for Effective Law Enforcement Against
an Individual’s Right to Liberty: Swinney v. State and the Forty-Eight Hour Rule, 24 MISS. C. L. REV. 73, 106
(2004) (“There is one major distinction between the way Willis/Davis and Daniels/Sholola interpreted and applied
McLaughlin. The courts in Willis and Davis looked beyond the exact wording of the Supreme Court’s opinion and
sought to execute the policy rationale behind the decision. On the other hand, the Seventh Circuit in Daniels and
Sholola narrowly interpreted the language in McLaughlin in furtherance of other policy justifications. . . . [T]he
Willis/Davis approach is the appropriate method . . . .”).
31
See, e.g., Bailey v. City of Chicago, No. 10-C-5735, 2013 WL 5835851, at *4 (N.D. Ill. Oct. 30, 2013) (“All the
Detectives can be accused of is taking time to ‘bolster’ the case against Bailey, and the Seventh Circuit has held that
it is ‘ludicrous’ to argue that the Supreme Court intended to prevent the police from detaining suspects for that
reason. . . . Unlike in Willis, the Detectives here only detained Bailey to gather evidence on the charge for which he
was initially arrested based on probable cause. Thus, Bailey’s post-arrest detention did not violate the Fourth
Amendment.” (citing Daniels, 64 F.3d 311, 314 (7th Cir. 1995))).
32
See Riney v. State, 935 P.2d 828, 835 (Alaska Ct. App. 1997) (“So long as the police do not detain a suspect for
the purpose of gathering probable cause to justify the arrest after the fact, questioning an arrestee about the crime(s)
for which he or she has been arrested does not constitute an ‘unreasonable’ delay under Gerstein and McLaughlin.”).
33
See Otis v. State, 217 S.W.3d 839, 847 (Ark. 2005).
30

8

[The defendant] argues that [his judicial probable
cause] determination was unreasonably delayed due
to the investigating officers’ desire to find more
evidence. However, . . . the McLaughlin [C]ourt
condemned as unreasonable a search for additional
evidence only when the evidence is being sought in
order to justify the arrest. Here, because [defendant]
confessed to the shooting shortly after being
brought to the police station, the officers already
had a sufficient amount of evidence to justify his
arrest. As such, there was no unreasonable delay . .
. . 36
The appellate courts of North Carolina 37 and New York, 38 along with a federal district court in
New York, 39 appear to have adopted this view as well, albeit far less clearly.
Although the propriety of temporary investigative delays following a warrantless arrest
obviously represents an extremely narrow issue of criminal procedure, the scope of this practice
is anything but. In the time since the Supreme Court issued its decision in McLaughlin, law
34

See Peterson v. State, 653 N.E.2d 1022, 1025 (Ind. Ct. App. 1995) (holding that law enforcement’s decision to
interrogate an arrested suspect prior to affording him a probable cause hearing did not constitute an unreasonable
delay because the police already had probable cause for the arrest).
35
See, e.g., State v. Walker, No. W2010-00122-CCA-R3-CD, 2011 WL 2120102, at *2 (Tenn. Crim. App. May 17,
2011) (finding no constitutional violation where a defendant “was placed on a forty-eight-hour investigative hold
and put into the jail.”); State v. Brown, No. W2013-00182-CCA-R3-CD, 2014 WL 4384954, at *16 (Tenn. Crim.
App. Sept. 5, 2014) (“In this case . . . there was probable cause to arrest Defendant. . . . Any delay in a judicial
determination in this case was not shown to be ‘for the purpose of gathering additional evidence to justify the arrest’
. . . . The officers were simply trying to verify Defendant's alibi.”); State v. Hayes, No. W2010-02641-CCA-R3-CD,
2012 WL 3192827, at *13 (Tenn. Crim. App. Aug. 6, 2012) (“the record in the present case establishes that probable
cause for the defendant's arrest existed at the time he was booked into the jail on the 48–hour hold. Under these
circumstances, the trial court did not err by refusing to suppress his statements.”). But see State v. Carter, 16 S.W.3d
762, 768 (Tenn. 2000) (emphasis added) (“[Defendant] concedes that probable cause existed for the initial
warrantless arrest. Moreover, there is no evidence that [defendant] was held for the purpose of gathering additional
evidence or for other investigatory purposes.”) (emphasis added).
36
Otis, 217 S.W.3d at 847.
37
See State v. Chapman, 471 S.E.2d 354, 356 (N.C. 1996) (“From the time the defendant was arrested at 9:30 a.m.
until he was taken before a magistrate at 8:00 p.m., a large part of the time was spent interrogating the defendant.
There were several crimes involved. The officers had the right to conduct these interrogations, and it did not cause
an unnecessary delay for them to do so.”).
38
See People v. Haywood, 280 A.D.2d 282, 282 (N.Y. App. Div. 2001) (citation omitted) (“The approximately 20hour delay between the time of defendant’s arrest and his final statement was not extraordinary and was explained
by the fact that the police needed to continue the investigation in an effort to unravel the conflicting accounts of
what had transpired.”).
39
See, e.g., Irons v. Ricks, No. 02 Civ. 4806(RWS), 2003 WL 21203409, at *10 (S.D.N.Y. May 22, 2003) (“Since
the robbery investigations were necessary and conducted with reasonable dispatch, and there is no evidence that the
police delayed [defendant’s] arraignment in an attempt to keep him from consulting an attorney or to violate his
other rights . . . .”).

9

enforcement agencies have formally employed the use of investigative holds against warrantless
arrestees in multiple jurisdictions within Illinois, Louisiana, Michigan, Missouri, Ohio, and
Texas. 40 By far, however, the most pervasive use of this practice existed in Tennessee, where
until recently, law enforcement agencies regularly utilized investigative holds throughout the
state. 41 Astoundingly, in the Memphis area alone, such investigative holds were used by law
enforcement “approximately 1,000 times per year.” 42
In light of the considerable split of authority addressing this issue, the Supreme Court
should promptly resolve the growing dispute over the proper interpretation of McLaughlin. In so
doing, the Court should articulate with unmistakable clarity that law enforcement may never
intentionally delay a warrantless arrestee’s constitutional right to a prompt judicial determination
of probable cause for investigative reasons under any circumstances. 43
III. THE PROPER INTERPRETATION OF THE GERSTEIN/MCLAUGHLIN RULE
The conclusion that police may intentionally delay a warrantless arrestee’s Gerstein
hearing for the purpose of further investigation so long as probable cause existed to justify the
defendant’s arrest in the first place is inconsistent with the Fourth Amendment for five separate
reasons:

40

See Mulroy, supra note 2, 816–18.
Id. at 819—21.
42
Id. at 826.
43
Unfortunately, however, the appropriate remedy for violating this rule is beyond the scope of this Article. As
McLaughlin itself demonstrates, a civil remedy is available to an aggrieved arrestee by way of a 42 U.S.C. § 1983
action. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 47 (1991). However, plaintiffs in such suits may
frequently receive only nominal damages without an award of attorney’s fees, providing strong reason to be
concerned that civil remedies alone are sufficient to deter law enforcement from committing Gerstein violations in
the first place. See, e.g., Willis v. City of Chicago, 999 F.2d 284, 290 (7th Cir. 1993) (upholding an award of one
dollar in damages and denying attorney’s fees). Alternatively, it may be appropriate to subject any evidence
obtained as a result of a Gerstein violation to exclusion. Whether the exclusionary rule applies to Gerstein
violations, however, remains an open question that has similarly divided lower courts. See Powell v. Nevada, 511
U.S. 79, 85 (1994) (“Whether a suppression remedy applies [to Gerstein violations] remains an unresolved
question.”); see also People v. Willis, 831 N.E.2d 531, 538 (Ill. 2005) (collecting cases and noting the “split in
authority.”). Finally, another potential solution could come in the form of immediate habeas corpus relief. The
relative merits of each of these options, however, is a topic worthy of its own separate publication.
41

10

First, it confounds the essential distinction between a judicial determination of probable
cause—which is a constitutional right—and a determination of probable cause that is made by
law enforcement, which carries no constitutional significance.
Second, it violates the “administrative purpose” requirement initially established by
Gerstein and subsequently reaffirmed by McLaughlin, which permits law enforcement to delay a
warrantless arrestee’s Gerstein hearing for administratively necessary reasons only.
Third, it fails to grasp the crucial distinction between, on the one hand, delaying a
defendant’s Gerstein hearing for investigative reasons, and on the other, continuing an
investigation while the administrative steps leading up to a defendant’s Gerstein hearing are
simultaneously being completed.
Fourth, it renders McLaughlin’s express prohibition on “delays for the purpose of
gathering additional evidence to justify [an] arrest” 44 superfluous, since the Fourth Amendment
already prohibits arrests that are unsupported by probable cause.
Fifth, it significantly diminishes the value of the check on law enforcement that Gerstein
was meant to provide by introducing hindsight bias into probable cause determinations and by
allowing a substantial number of warrantless arrests to evade judicial review of any kind.

A. The Constitutional (In)significance of a Probable Cause Determination Made by an Arresting
Officer
At common law, both in England and the United States, the rule was that “a person
arresting a suspect without a warrant must deliver the arrestee to a magistrate ‘as soon as he
reasonably can.’” 45 Gerstein relied heavily on this common law rule in holding that the Fourth
Amendment permits law enforcement only “a brief period of detention to take the administrative

44
45

McLaughlin, 500 U.S. at 56.
Id. at 61 (Scalia, J., dissenting) (citations omitted).

11

steps incident to arrest” before law enforcement must afford a warrantless arrestee a judicial
determination of probable cause. 46
The public policy justifications for the Gerstein rule are numerous. First and foremost, in
the United States, accused persons are presumed innocent until proven guilty, 47 and investigative
arrests are considered anathema to our system of justice. 48 Consequently, because a judicial
officer has not yet determined that there is even probable cause to believe that a suspect has
committed a crime when law enforcement makes a warrantless arrest, “[e]veryone agrees that the
police should make every attempt to minimize the time a presumptively innocent individual
spends in jail.” 49 Furthermore, “[o]nce [a] suspect is in custody, . . . [t]here no longer is any
danger that the suspect will escape or commit further crimes while the police submit their
evidence to a magistrate.” 50 As a result, the Supreme Court has explained, after a suspect has
been arrested, “the reasons that justify dispensing with the magistrate’s neutral judgment

46

Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
Historically, this bedrock constitutional principle has separated our justice system from those of other countries.
See Mulroy, supra note 2, at 822 (footnote omitted) (“[W]hile ‘investigative detentions’ are common in other
countries, they have long been outside the traditions of the American criminal justice system. The abuses occurring
in other countries from the use of investigative holds remind us why.” (citing Zemel v. Rusk, 381 U.S. 1, 15
(1965))); see also Amenu v. Holder, 434 Fed. App’x 276, 280 (4th Cir. 2011) (criticizing the Ethiopian
government’s arbitrary arrest and detention without charge of members of the opposing political party); Haile v.
Holder, 658 F.3d 1122, 1133 (9th Cir. 2011) (noting that Amnesty International had criticized Eritrea for indefinite
detentions and for holding political and religious dissidents “without charge or trial”). Even today, this principle
continues to distinguish the United States from nations like China, which still employs the sordid practice of
extended pre-trial punishment. See China: “Work Camps” Constitute Detention Without Trial, ASIANEWS.IT (May
21, 2005), http://www.asianews.it/news-en/China:-Work-camps-constitute-detention-without-trial-3334.html.
48
See, e.g., Dunaway v. New York, 442 U.S. 200, 216 (1979) (“Detention for custodial interrogation—regardless of
its label—intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the
traditional safeguards against illegal arrest.”); Brown v. Illinois, 422 U.S. 590, 605 (1975) (citation omitted) (“The
imporpriety [sic] of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives
when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for
‘questioning.' The arrest, both in design and in execution, was investigatory.”); Papachristou v. City of Jacksonville,
405 U.S. 156, 169 (1972) (“Arresting a person on suspicion, like arresting a person for investigation, is foreign to
our system . . . .”); cf. McLaughlin, 500 U.S. at 65–66 (Scalia, J., dissenting) (citation omitted) (“Some Western
democracies currently permit the executive a period of detention without impartially adjudicated cause. In England,
for example, the Prevention of Terrorism Act . . . permits suspects to be held without presentation and without
charge for seven days. 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.”).
49
McLaughlin, 500 U.S. at 58.
50
Gerstein, 420 U.S. at 114.
47

12

evaporate.” 51 Moreover, following the Supreme Court’s recent decision in Florence v. Board of
Chosen Freeholders of the County of Burlington, warrantless arrestees may also be forced to
submit to the humiliating and dehumanizing mandate that they “expose their body cavities for
visual inspection as a part of a [suspicionless] strip search” shortly after being arrested. 52
Finally, given that “[p]retrial confinement may imperil [a] suspect’s job, interrupt his source of
income, and impair his family relationships,” 53 and in light of the additional fact that “freedom
before conviction permits the unhampered preparation of a defense,” 54 a prompt determination of
probable cause is also closely related to the requirement that pre-trial detention comport with
basic notions of fundamental fairness.
More important than any of these compelling public policy justifications, however, is the
constitutional basis for the rule established by Gerstein, which is rooted in the separation of
powers doctrine. 55 Requiring that a neutral and detached magistrate evaluate the legitimacy of
every arrest—either by signing off on an arrest warrant or by conducting a Gerstein hearing—

51

Id.
Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 132 S. Ct. 1510, 1516 (2012). At its core, the
purpose of the Gerstein rule is to prevent innocent people from being arrested in the first place. As Justice Scalia
has noted:
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.
McLaughlin, 500 U.S. at 71 (Scalia, J., dissenting).
53
Gerstein, 420 U.S. at 114 (citations omitted).
54
Stack v. Boyle, 342 U.S. 1, 4 (1951).
55
Gerstein, 420 U.S. at 118 (“[P]robable cause for the issuance of an arrest warrant must be determined by
someone independent of police and prosecution. The reason for this separation of functions was expressed
by Mr. Justice Frankfurter in a similar context: A democratic society, in which respect for the dignity of all
men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down
crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not
alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be
provided against the dangers of the overzealous as well as the despotic. The awful instruments of the
criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is
therefore divided into different parts, responsibility for which is separately vested in the various
participants upon whom the criminal law relies for its vindication. McNabb v. United States, 318 U.S. 332,
343 (1943).
52

13

provides an essential check on the abuse of executive power by ensuring that arresting officers
are not passing on the legitimacy of their own arrests themselves. 56 As the Gerstein Court noted:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies
law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its
protection consists in requiring that those inferences
be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in
the often competitive enterprise of ferreting out
crime. 57
Considered from this perspective, it becomes clear that a police officer’s own
determination that he or she was justified in making an arrest carries no constitutional
significance with respect to the judicial probable cause requirement. 58 Instead, the Gerstein right
is premised upon the presumption that only an impartial member of the judiciary can be trusted
to evaluate the legitimacy of an arrest made by law enforcement. 59 As a result, the conclusion
that law enforcement may lawfully delay a warrantless arrestee’s right to a prompt judicial
determination of probable cause so long as a judge eventually determines that the arrest was
permissible betrays a fundamental misunderstanding of both the nature and the purpose of the
right that Gerstein protects.
According to those courts that permit investigative delays to a defendant’s Gerstein
hearing so long as law enforcement had already developed probable cause to make an arrest, the
56

Gerstein, 420 U.S. at 118.
Id. at 112 (quoting Johnson v. United States, 333 U.S. 10, 13–14, (1948)).
58
Of note, Gerstein itself actually presupposed the existence of police officers’ on-the-scene assessment of probable
cause, making clear that such a determination is merely a precursor to complying with the Fourth Amendment. See
Gerstein, 420 U.S. at 113–4 (“[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.”).
59
Toward this end, the Gerstein Court explained that even probable cause determinations made by prosecutors—
who are presumably both trained in the law and comparatively removed from the “the often competitive enterprise
of ferreting out crime”—still cannot justify eschewing a warrantless arrestee’s right to a prompt judicial
determination of probable cause. Id. at 117 (“Although a conscientious decision that the evidence warrants
prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment
standing alone meets the requirements of the Fourth Amendment.”).
57

14

measure of a defendant’s Gerstein right hinges entirely upon a post-hoc determination of
whether probable cause existed to make the arrest in the first place. In these jurisdictions, if a
court ultimately determines that probable cause to make an arrest existed at the time of a
defendant’s arrest, then law enforcement’s decision to delay bringing the defendant before a
judge to determine whether probable cause existed is considered unobjectionable. In contrast, if
probable cause to arrest did not exist at the time of a defendant’s arrest, then an officer’s decision
to delay bringing the defendant before a judge to determine whether probable cause existed will
be considered a Gerstein violation. Such fallacious reasoning provides a classic example of a
non-sequitur. 60
Fortunately, the error committed by those courts that have conducted a post-hoc
determination of probable cause in order to determine whether a defendant’s right to a prompt
judicial determination of probable cause was violated is an obvious one, and it is easily exposed.
Put simply: it is “[a] false arrest claim [that] alleges lack of probable cause. A Gerstein claim
alleges lack of the opportunity for a prompt judicial determination of probable cause. The claims
are not identical and, therefore, are not subject to the same analysis.” 61 As a result, whether law
enforcement was initially justified in making an arrest is utterly irrelevant to a Gerstein claim;
instead, the question is merely whether whether the police unreasonably delayed a defendant’s

60

See, e.g., Willis v. Bell, 726 F. Supp. 1118, 1127 n.20 (N.D. Ill. 1989) (“[The] City makes a lame attempt to argue
it did not have a policy of detaining individuals in the absence of probable cause. That of course is beside the point.
What is relevant is that in constitutional terms, Gerstein teaches that after the time required for truly administrative
processing, . . . the arrestee promptly must be brought before a magistrate for . . . a [probable cause]
determination.”), aff'd sub nom. Willis v. City of Chicago, 999 F.2d 284 (7th Cir. 1993).
61
Webster v. Gibson, 913 F.2d 510, 513 n. 7 (8th Cir. 1990); see also Hunt v. Roth, 11 C 4697, 2013 WL 708116 at
*6 (N.D. Ill. Feb. 22, 2013) (“A claim that [a defendant] was denied a probable cause hearing within a reasonable
period of time after arrest is different from a claim that he was arrested and detained without probable cause.”); State
v. Huddleston, 924 S.W.2d 666, 675 (Tenn. 1996) (“Unlike illegal arrest cases, the Fourth Amendment violation in
McLaughlin cases is the unreasonable detention of an arrestee without a judicial determination of probable cause.”);
cf. Powell v. Nevada, 511 U.S. 79, 90 (1994) (Thomas, J., dissenting) (observing that a “violation of McLaughlin” is
distinct from unlawful “arrest and custody”).

15

Gerstein hearing after making a warrantless arrest. Those courts that have held otherwise have
misunderstood the constitutional inquiry, and their reasoning fails accordingly.

B. The Continued Survival of Gerstein’s “Administrative Steps” Requirement After McLaughlin
For obvious reasons, investigative detentions would have been inconceivable under
Gerstein’s rule that law enforcement is entitled to only “a brief period of detention to take the
administrative steps incident to arrest” before a warrantless arrestee must be afforded a judicial
determination of probable cause. 62 Consequently, it is incumbent upon proponents of the view
that investigative detentions became permissible after McLaughlin to identify the language in
McLaughlin that supports this theory. Tellingly, however, no such language exists.
In those jurisdictions that have permitted law enforcement to delay a warrantless
arrestee’s Gerstein hearing for investigative reasons following a valid arrest, the following forms
of delay are currently permitted: (1) administrative delays for the purpose of completing the
steps incident to a defendant’s arrest; (2) administrative delays for the purpose of arranging for a
defendant’s Gerstein hearing; (3) administrative delays for the purpose of preparing for certain
pre-trial combination proceedings; and (4) investigative delays for the purpose of gathering
additional evidence, provided that probable cause to arrest existed at the time of the arrest. 63
Crucially, however, nothing in McLaughlin supports the creation of this fourth, previously
unfathomable type of delay. Stated simply: “One of these things is not like the others. One of
these things doesn’t belong.” 64
Gerstein’s central holding was that the Fourth Amendment permits police officers only “a
brief period of detention to take the administrative steps incident to arrest” before a warrantless
62

Gerstein, 420 U.S. at 113–14.
See, e.g., Otis v. State, 217 S.W.3d 839, 847 (Ark. 2005).
64
Sesame
Street,
One
of
These
Things
https://www.youtube.com/watch?v=FClGhto1vIg.
63

16

-

Circles,

YOUTUBE

(Apr.

27,

2007),

arrestee must be afforded a judicial determination of probable cause. 65 The Court’s subsequent
decision in McLaughlin, however, modified this holding in two material ways.

First,

McLaughlin established a forty-eight hour burden-shifting rule for proving Gerstein violations. 66
Second, over two vigorous dissenting opinions, McLaughlin held that even though the
government’s preparation for pre-trial “combination proceedings”—such as a bail hearing or an
arraignment—does not constitute an administrative step “incident to arrest,” delaying a
warrantless arrestee’s Gerstein hearing in order to prepare for certain pre-trial combination
proceedings still comports with the Fourth Amendment. 67
In support of its holding that delaying a warrantless arrestee’s Gerstein hearing in order
to prepare for pre-trial combination proceedings is reasonable under the Fourth Amendment, the
McLaughlin Court explained that “[o]ur 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.” 68 Additionally,
offering substantial practical support for its holding that delays within the first forty-eight hours
of an arrest are presumptively reasonable, the Court went to great lengths to point out eight
examples of “inevitable” and “often unavoidable” administrative delays created by “an overly
burdened criminal justice system” that must necessarily be accommodated by the judiciary.
Specifically, the Court explained that:
[S]ome delays are inevitable. . . . [1] Records will
have to be reviewed, [2] charging documents
drafted, [3] appearance of counsel arranged, and [4]
appropriate bail determined. On weekends, when
65

Gerstein, 420 U.S. at 113–14.
See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56–57 (1991).
67
Id. at 58 (“[J]urisdictions 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.”).
68
Id. at 53.
66

17

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. . . . Courts cannot ignore the often
unavoidable delays in [5] transporting arrested
persons from one facility to another, [6] handling
late-night bookings where no magistrate is readily
available, [7] obtaining the presence of an arresting
officer who may be busy processing other suspects
or [8] securing the premises of an arrest, and other
practical realities. 69
These eight examples of “inevitable” and “often unavoidable” administrative delays shed
considerable light on why the McLaughlin Court thought it necessary to modify the rule
established in Gerstein and to allow states additional administrative flexibility in preparing for
Gerstein hearings. Even more instructive, however, is what the Court did not hold. Specifically,
nothing in McLaughlin suggests or even intimates that non-administrative delays to a defendant’s
Gerstein hearing that have been deliberately created by law enforcement in order to facilitate
further investigation suddenly became permissible after McLaughlin. McLaughlin simply does
not support such a view.
Although McLaughlin was meant to promote administrative flexibility in states’ pre-trial
proceedings, the eight specific examples of the “inevitable” and “often unavoidable”
administrative delays of the judicial process that the Court identified in McLaughlin make clear
that it did not abandon Gerstein’s “administrative steps” requirement. 70 “[F]lexibility has its

69

Id. at 55–57.
Id.; cf. Adminstrative Comment, Indefinite Detention Without Probable Cause: A Comment on INS Interim Rule 8
C.F.R. § 287.3, 26 N.Y.U. REV. L. & SOC. CHANGE 397, 408 (2001) (footnote omitted) (“[McLaughlin] specified
that only those delays attributable to ‘practical realities’ are reasonable, and thus consti-tutional [sic].”).
70

18

limits,” the McLaughlin Court cautioned, and “Gerstein is not a blank check.” 71 By sanctioning
deliberate delays that are wholly unrelated to any administrative purpose at all, however, several
jurisdictions have erroneously issued law enforcement the “blank check” that McLaughlin
expressly reserved. 72
In contrast, however, several other courts have correctly concluded that the Fourth
Amendment categorically prohibits law enforcement from deliberately delaying a defendant’s
Gerstein hearing for any administratively unnecessary reason 73—especially when the reason for
the delay is to accommodate further investigation of the arrestee. 74 Of note, this view also
comports with numerous pre-McLaughlin decisions that found Fourth Amendment violations
where the sole purpose of delaying a defendant’s Gerstein hearing was to extract a confession. 75
71

McLaughlin, 500 U.S. at 55.
See id.; see also Otis v. State, 217 S.W.3d 839, 847 (Ark. 2005); State v. Walker, No. W2010-00122-CCA-R3CD, 2011 WL 2120102, at *2 (Tenn. Crim. App. May 17, 2011) (finding no constitutional violation where a
defendant “was placed on a forty-eight-hour investigative hold and put into the jail.”).
73
See, e.g., Portis v. City of Chicago, Ill., 613 F.3d 702, 705 (7th Cir. 2010) (“[D]elay deliberately created so that
the process becomes the punishment . . . violates the [F]ourth [A]mendment”); Wayland v. City of Springdale, Ark.,
933 F.2d 668, 670 (8th Cir. 1991) (internal citations omitted) (“Gerstein may be violated even in situations where
probable cause for the arrest exists. The issue is whether the delay in arraignment was permissible. A defendant
may be detained only for as long as it takes to process ‘the administrative steps incident to arrest.’”); Guy v. Lara,
No. 98 C 3741, 1999 WL 675296, at *6 (N.D. Ill. Aug. 18, 1999) (“[Arrestee] asserts that her amended complaint
specifically alleges that the delay in her probable cause hearing was deliberate . . . . [Arrestee]’s allegations that [the
officers] deliberately slowed down her detention state a valid claim of unreasonable detention.”); Clay v. State, 883
S.W.2d 822, 827 (Ark. 1994) (“The delay . . . was not only unnecessary, it was . . . deliberate . . .[,] which should
not be countenanced.”).
74
See, e.g., Farr v. Paikowski, No. 11-C-789, 2013 WL 160268 (E.D. Wis. Jan. 14, 2013) (“The defendants concede
that the real purpose for arresting [the arrestee] was simply to interrogate her . . . . This concession renders [the
arrestee]’s detention per se unreasonable under Gerstein.”); United States v. Vilches-Navarrete, 413 F. Supp. 2d 60,
67 (D.P.R. 2006) (holding that Fed. R. Crim. P. 5(a), which is analogous to the McLaughlin requirement, “was
designed to prevent federal law enforcement from using the time between arrest and presentment before a magistrate
to procure a confession”), aff’d, 523 F.3d 1 (1st Cir. 2008); Williams v. State, 825 A.2d 1078, 1090 (Md. 2003)
(“The sole, unadulterated purpose of the subsequent interrogation was to obtain incriminating statements, and that,
nearly all courts agree, is not a proper basis upon which to delay presentment.”); Commonwealth v. Woodley, No.
9211358, 1993 WL 818559, at *7 (Mass. Super. Ct. Oct. 12, 1993) (“It is well established, moreover, that a delay is
unreasonable when it is contrived by the police to elicit incriminating statements.”); cf. People v. Richardson, 183
P.3d 1146, 1167 n.13 (Cal. 2008) (“[B]ecause [the] delay was not for purposes of eliciting incriminating statements,
there was no federal constitutional violation.”). United States v. Davis provides a single reasoned exception to this
rule, holding that a “delay that is attributable to . . . custodial interrogation” is reasonable where the defendant
“initiate[s] contact” with and “voluntarily sp[eaks] to law enforcement.” United States v. Davis, 235 F.R.D. 292,
313–14 (W.D. Pa. 2006).
75
See, e.g., United States v. Wilson, 838 F.2d 1081, 1087 (9th Cir. 1988) (holding that a delay was unreasonable
where it was deliberate and for purpose of obtaining a confession); United States v. Perez, 733 F.2d 1026, 1036 (2d
72

19

Additionally, in keeping with McLaughlin’s express prohibition on “delay for delay’s sake,” 76
several post-McLaughlin decisions—which stand for the general proposition that law
enforcement may never intentionally prevent a warrantless arrestee from receiving a Gerstein
hearing if a judicial officer is available to conduct one—offer support for this view as well. 77
The continued survival of Gerstein’s “administrative steps” requirement following
McLaughlin is also underscored by the three examples of unreasonable delays that the
McLaughlin Court itself explained remained categorically unlawful within that very decision.
As other commentators have observed, what is most revealing about the three examples of
unreasonable delays that were specified in McLaughlin—(1) delays “to justify the arrest,” (2)
delays “motivated by ill will,” and (3) “delay for delay’s sake” 78—is that these examples have

Cir. 1984) (holding that a delay for the sole purpose of interrogation is unreasonable). Additionally, many
jurisdictions that have not applied the exclusionary rule to McLaughlin violations have mandated exclusion when
officers seek to exploit an unreasonable delay in a defendant’s Gerstein hearing by attempting to extract a
confession. See, e.g., United States v. Mullin, 178 F.3d 334, 342 (5th Cir. 1999) (“There is no evidence that the
Military Police delayed turning [defendant] over to civil authorities for the purpose of extracting a confession, or
that the delay caused him to confess.”); People v. Henderson, No. 179496, 1997 WL 33353393, at *2 (Mich. Ct.
App. Mar. 4, 1997) (“[A] confession or other incriminating evidence should be suppressed as a result of an unduly
long delay in arraignment only where the delay was used to extract the confession or evidence.”).
76
McLaughlin, 500 U.S. at 56.
77
See, e.g., Brennan v. Twp. of Northville, 78 F.3d 1152, 1155 (6th Cir. 1996) (reversing the lower court’s
determination that a twenty-two-hour detention constituted a “delay for delay’s sake” under McLaughlin on the basis
that “there [was] nothing in the record to support the [finding] that a magistrate was available”); Anderson v.
Romanowski, No. 1:08-CV-801, 2012 WL 6596118, at *10 (W.D. Mich. Dec. 4, 2012) (finding that a delay within
forty-eight hours violates McLaughlin “if it is determined to be unnecessary”); Gonzalez v. Bratton, 147 F. Supp. 2d
180, 200 (S.D.N.Y. 2001) (“[T]he jury could have concluded that . . . [plaintiff’s twenty-seven-hour detention was
not] reasonably justified by the needs of ordinary police procedures.”), aff’d, 48 F. App’x 363 (2d Cir. 2002);
Williams v. Van Buren Twp., 925 F. Supp. 1231, 1235 (E.D. Mich. 1996) (“[I]f a magistrate was available during
the day of Saturday . . . and the officers made no effort to arrange a probable cause determination, but rather were
delaying to gather more evidence against [the arrestee] or simply for delay’s sake . . . then the delay would be
unreasonable, and violative of the Fourth Amendment.”); Clay, 883 S.W.2d at 827 (“The delay in taking [the
defendant] before a judge was unnecessary. There is no question but that he could have been presented on Monday .
. . . The only reason that did not occur was the order of the deputy prosecutor to ‘continue to the next court date for
evidence involving this case.’ The State presented nothing to show that [the defendant] could not have been taken
before a judge on Monday . . . .”); cf. Perez, 733 F.2d 1026, 1035–36 (2d Cir. 1984) (finding that an eight-hour
arraignment delay was unreasonable because law enforcement could have brought defendant before an available
magistrate); James R. Dyer, Comment, Criminal Law--Constitutional Rights of Arrestees at Bail Hearings and After
Warrantless Arrests, 79 MASS. L. REV. 84, 86 (1994) (“Whether a delay in issuing the warrant is reasonable, is
based not on the arresting officer’s need to collect additional information but on the arresting officer’s ability to
secure a magistrate who can issue the warrant.”).
78
McLaughlin, 500 U.S. at 56.

20

nothing in common within one another other than the fact that they are intentional and
administratively unnecessary. 79 Accordingly, the very portion of McLaughlin that so many
courts have cited as support for the constitutionality of investigative detentions in fact supports
the contrary view that intentionally delaying a warrantless arrestee’s Gerstein hearing for an
administratively unnecessary reason continues to violate the Fourth Amendment. 80
Finally, the view that Gerstein’s “administrative steps” requirement survived
McLaughlin is also expressly reflected by Justice Scalia’s understanding of the majority opinion.
Addressing in dissent “[which] factors determine whether [a] post[-]arrest determination of
probable cause has been . . . ‘reasonably prompt,’” Justice Scalia explained: The Court and I
both accept two . . . factors, completion of the administrative steps incident to arrest and
arranging for a magistrate’s probable-cause determination. . . . [W]e disagree, however, upon a
third factor—the Court believing, as I do not, that ‘combining’ the determination with other
proceedings justifies a delay . . . .” 81
This passage of Justice Scalia’s dissent makes clear that despite disagreeing about the
constitutionality of delaying a defendant’s Gerstein hearing in order to prepare for certain pretrial “combination proceedings,” no member of the McLaughlin Court endorsed the view that
intentionally delaying a defendant’s Gerstein hearing for a wholly non-administrative reason

79

See Goldberg, supra note 31, at 106 (footnotes omitted) (“[T]here is no common rationale shared among the
examples of impermissible delays. . . . Consequently, if an individual can show that their judicial determination of
probable cause was intentionally delayed for a purpose not relating to circumstances beyond law enforcement's
control, a Fourth Amendment violation should be declared.”).
80
See, e.g., Smith v. Davidson, Civil No. 11–00498 LEK–RLP, 2013 WL 2420894, at *8 (D. Haw. May 31, 2013)
(“[T]he [F]ourth [A]mendment does not permit the police to detain a suspect merely to investigate. Such conduct
does not constitute ‘administrative steps incident to arrest.’”); United States v. Davis, 21 F. Supp. 2d 979, 982 (D.
Minn. 1998) (“[Defendant’s] interrogation . . . was neither part of nor incident to the administrative steps leading to
an arraignment. Thus, the detention in this case . . . was inherently unreasonable, regardless of its modest length.”),
aff’d, 174 F.3d 941 (8th Cir. 1999).
81
McLaughlin, 500 U.S. at 66–67 (Scalia, J., dissenting).

21

suddenly became permissible after McLaughlin. 82 There is simply no language in McLaughlin
that supports this view, and given that Gerstein had previously prohibited investigative
detentions of any kind, that omission is outcome-determinative.

C. The Propriety of Continuing an Investigation While Administrative Steps Are Simultaneously
Being Completed
Those courts that have held that McLaughlin permits delaying a warrantless arrestee’s
Gerstein hearing for investigative reasons under circumstances when law enforcement has
already gathered sufficient evidence to justify an arrest have primarily based their reasoning on
the notion that it would be “ludicrous” to handicap law enforcement by forcing them to stop
investigating a case while a defendant awaits a Gerstein hearing. 83 This reasoning, however,
presents a false choice between only two alternatives, when in fact a third option is available. As
courts in both the Eighth Circuit and the Ninth Circuit have recognized, the Fourth Amendment’s
prohibition on investigative detentions does not require police to cease investigating someone
who has been arrested without a warrant until he or she has been afforded a Gerstein hearing. 84
Instead, the proper reading of McLaughlin is that law enforcement may not delay a defendant’s
Gerstein hearing in order to facilitate further investigation, but that police may continue
investigating a defendant while the administrative steps leading up to his or her Gerstein hearing
are simultaneously being completed.
82

See David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV. 1229,
1298 (2002) (“Although the two sides differed regarding whether one particular purpose—the administrative
convenience of combining a probable cause hearing with other procedures—should count as legitimate, they agreed
that certain other motivations were clearly off-limits.”).
83
See, e.g., United States v. Sholola, 124 F.3d 803, 820 (7th Cir. 1997); United States v. Daniels, 64 F.3d 311, 314
(7th Cir. 1995); Riney v. State, 935 P.2d 828, 835 (Alaska Ct. App. 1997); Otis v. State, 217 S.W.3d 839, 847 (Ark.
2005); Peterson v. State, 653 N.E.2d 1022, 1025 (Ind. Ct. App. 1995).
84
See Davis, 174 F.3d at 945 n.7 (“[N]othing we say today prevents police from investigating a detained suspect on
the crime for which he or she was arrested, or for other unrelated charges, while the suspect is being booked or
waiting for an available magistrate.”); see also Kanekoa v. City & Cnty. of Honolulu, 879 F.2d 607, 612 (9th Cir.
1989) (“The [F]ourth [A]mendment does not prohibit the police from investigating a suspect while the suspect is
legally detained.”).

22

As explained above, Gerstein categorically prohibited law enforcement from
intentionally delaying a warrantless arrestee’s judicial probable cause hearing for nonadministrative reasons, and nothing in McLaughlin suggests that the Supreme Court intended to
change that. 85 Even so, however, it does not follow that the police must immediately cease
investigating a warrantless arrestee until he or she has been afforded a Gerstein hearing. In
evaluating a Gerstein claim, a court’s sole task is to determine whether the police unreasonably
delayed a defendant’s Gerstein hearing after making a warrantless arrest. 86 Consequently, there
can be no basis for a claim that a warrantless arrestee’s Gerstein hearing was delayed
unreasonably if law enforcement’s continued investigation of the arrestee did not delay the
arrestee’s Gerstein hearing at all.
A pre-McLaughlin decision from the Ninth Circuit helpfully explains this distinction. As
that court held in Kanekoa v. City and County of Honolulu:
The [F]ourth [A]mendment does not prohibit the
police from investigating a suspect while the
suspect is legally detained. Because the police had
legitimate reasons for detaining the [defendants],
we cannot conclude as a matter of law that the
police violated their [F]ourth [A]mendment rights
by conducting an investigation while the suspects
were in custody. Rather, this is an issue of fact: if
the [defendants] were detained so the police could
conduct an investigation, then the police violated
their [F]ourth [A]mendment rights; but if the
[defendants] were detained while the police
promptly conducted administrative procedures, then
the police did not violate their [F]ourth
[A]mendment rights. 87

85

See supra Part III.B.
See McLaughlin, 500 U.S. at 56.
87
Kanekoa, 879 F.2d at 612.
86

23

This precise reasoning is also reflected by the Eighth Circuit’s opinion in United States v. Davis,
which explained that: “nothing we say today prevents police from investigating a detained
suspect on the crime for which he or she was arrested, or for other unrelated charges, while the
suspect is being booked or waiting for an available magistrate.” 88
The Kanekoa and Davis courts have correctly identified the crucial distinction between,
on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and
on the other, continuing an investigation while the administrative steps incident to a defendant’s
arrest are simultaneously being completed. Interestingly, the State of Tennessee—the nation’s
most frequent Gerstein violator 89—has identified this distinction as well. In Norris v. Lester, for
example, a defendant contended that law enforcement had intentionally delayed his Gerstein
hearing for investigative reasons. 90 In response, the state offered two arguments. First, the state
argued that the police had not delayed the defendant’s Gerstein hearing “to justify [his] arrest”
because police had already developed probable cause to arrest the defendant. 91 Second, the state
argued that the defendant’s Gerstein hearing had not been delayed for any investigative reason at
all because “the evidence reasonably shows only that the police continued their investigation into
the murder in parallel to the [defendant]’s detention, not that the prolonged detention was
because of the continuing investigation.” 92

In the author’s view, this interpretation of

McLaughlin is correct.

D. Rendering McLaughlin’s Prohibition on Investigative Detentions Superfluous

88

Davis, 174 F.3d at 945 n.7.
See Mulroy, supra note 2, at 822 (noting that, “in Tennessee, [investigative detentions] seem[] to be used most
frequently, broadly, and recently”).
90
See Norris v. Lester, 545 Fed. App’x 320, 328 (6th Cir. 2013).
91
Brief of Respondent-Appellee at 21, Norris, 545 Fed. App’x 320 (No. 10-5842).
92
Id. at 33 (emphasis added).
89

24

A fourth, major problem with the conclusion that McLaughlin only prohibits investigative
delays under circumstances when law enforcement did not have probable cause to make an arrest
in the first place is that such a prohibition would not actually prohibit anything at all. Thus, if
McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to
justify the arrest” 93 is to have any meaning, then a contrary result must have been intended.
When a person has been arrested without a warrant, only six scenarios are possible:
1. Law enforcement believed that it had probable
cause to make the arrest, and law enforcement did
in fact have probable cause to make the arrest;
2. Law enforcement believed that it had probable
cause to make the arrest, but law enforcement
actually did not have probable cause to make the
arrest;
3. Law enforcement did not believe that it had
probable cause to make the arrest, but law
enforcement actually did have probable cause to
make the arrest;
4. Law enforcement did not believe that it had
probable cause to make the arrest, and law
enforcement in fact did not have probable cause to
make the arrest;
5. Law enforcement was unsure about whether it
had probable cause to make the arrest, but law
enforcement did in fact have probable cause to
make the arrest; or
6. Law enforcement was unsure about whether it
had probable cause to make the arrest, but law
enforcement did not in fact have probable cause to
make the arrest.
Chart I

Believed Had Probable Cause
93

Had Probable Cause
1

Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

25

Did Not Have Probable Cause
2

Did Not Believe Had Probable Cause
Unsure Whether Had Probable Cause

3
5

4
6

Given these possibilities, if McLaughlin permits delays for the purpose of gathering
additional evidence so long as an arrest was supported by probable cause to begin with, then
McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to
justify [an] arrest” 94 is merely superfluous, and it actually prohibits nothing. This is necessarily
the case because arresting a defendant without probable cause already violates the Fourth
Amendment, 95 and consequently, Scenarios 2, 4 and 6 are already unlawful. 96

Similarly,

Scenario 1—in which police correctly believe that they have probable cause to make an
arrest 97—is not realistically implicated by McLaughlin either, because law enforcement has no
reason to attempt to justify an arrest that is already believed to be, and is in fact, justified.
Accordingly, only Scenarios 3 and 5—situations in which some degree of additional
justification for an arrest could be considered necessary by law enforcement—would appear to
be implicated by McLaughlin. 98 However, even these two situations would avoid McLaughlin’s
prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” 99
due to the longstanding rule that the subjective belief of law enforcement is irrelevant to the
determination of whether or not probable cause exists.
As the U.S. Supreme Court has consistently and repeatedly explained: “an arresting
officer’s state of mind . . . is irrelevant to the existence of probable cause.” 100 According to the

94

Id.
See, e.g., Maryland v. Pringle, 540 U.S. 366, 370 (2003) (“A warrantless arrest of an individual in a public place
for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the
arrest is supported by probable cause.”).
96
See supra Chart I.
97
See supra Chart I.
98
See supra Chart I.
99
McLaughlin, 500 U.S. at 56.
100
Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
95

26

Supreme Court, “[t]he Fourth Amendment’s concern with ‘reasonableness’ allows certain
actions to be taken in certain circumstances, whatever the subjective intent” of law
enforcement. 101 Put simply, “[s]ubjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.” 102 Consequently, in those jurisdictions that permit investigative
detentions so long as probable cause existed to justify a defendant’s arrest in the first place,
courts have held that the Fourth Amendment is not violated even when police officers have
candidly admitted—in express violation of McLaughlin—that they delayed a warrantless
arrestee’s Gerstein hearing “for the purpose of gathering additional evidence to justify the
arrest.” 103 Such a holding cannot possibly be correct.
A recent decision by the Tennessee Supreme Court offers a particularly instructive
example of this flawed reasoning. In State v. Bishop, after law enforcement had arrested a
defendant without a warrant, the defendant was placed under what the arresting officers
described as a “forty-eight-hour hold.” 104 During this “hold,” the defendant was deliberately
denied a Gerstein hearing—even though a magistrate was immediately available to conduct
one 105—and the arresting officers used the time afforded by their “forty-eight-hour hold” to
101

Whren v. United States, 517 U.S. 806, 814 (1996).
Id. at 813.
103
McLaughlin, 500 U.S. at 56.
104
State v. Bishop, No. W2010-01207-CCA-R3-CD, 2012 WL 938969, at *4–5 (Tenn. Crim. App. Mar. 14, 2012),
rev'd, 431 S.W.3d 22 (Tenn. 2014).
105
In fact, just two hours and thirty-five minutes after he was arrested, the defendant was actually brought before a
magistrate for a non-Gerstein hearing that was described as a “hold hearing.” Transcript of Motion to Suppress at
62, Bishop, 431 S.W.3d 22 (Tenn. 2014) (No. 08-07886) (“There is a charge listed as what we're holding him for,
but he’s not - judicially speaking, he’s not judicially charged. It’s just a hold.”). Independent of law enforcement’s
admittedly investigative motivation to place the defendant under a “hold,” this fact alone represented a clear-cut
Gerstein violation because it constituted a “delay for delay’s sake.” See, e.g., State v. Thompson, 508 S.E.2d 277,
288 (N.C. 1998) (“The failure to provide defendant with a bond hearing before a judge at the first opportunity on
Monday morning, and the continued detention of defendant well into the afternoon, was unnecessary, unreasonable,
and thus constitutionally impermissible under [McLaughlin].”); Clay v. State, 883 S.W.2d 822, 827 (Ark. 1994)
(“The delay in taking [the defendant] before a judge was unnecessary. There is no question but that he could have
been presented on Monday . . . .”); Williams v. Van Buren Twp., 925 F. Supp. 1231, 1235 (E.D. Mich. 1996) (“[I]f a
magistrate was available during the day of Saturday . . . and the officers made no effort to arrange a probable cause
determination, but rather were delaying to gather more evidence against [the arrestee] or simply for delay’s sake . . .
then the delay would be unreasonable, and violative of the Fourth Amendment.”); Brennan v. Twp. of Northville, 78
102

27

interrogate the defendant multiple times and to gather additional evidence against him in
connection with a murder investigation. 106 As soon as the police obtained a confession from the
defendant, however, law enforcement immediately brought the defendant before a magistrate for
his Gerstein hearing, after which the magistrate determined that the defendant’s arrest had been
supported by probable cause at the time he was arrested. 107
Of note, however, during the defendant’s suppression hearing, extensive testimony was
elicited from the arresting officers indicating that they themselves did not believe that they had
had probable cause to arrest the defendant at the time of his arrest. 108 Specifically, the arresting
officers testified, among other things, that:
(1) “If we didn’t get any additional evidence, when
the forty-eight hours expired, we’d [have] let [the
defendant] go[;]”; 109
(2) “[The defendant was] booked in jail on firstdegree murder. We fill[ed] out the form to hold
him in there until we c[ould] do our additional
investigation to come up with the appropriate
charges[;]” 110

F.3d 1152, 1155 (6th Cir. 1996) (reversing lower court’s determination that twenty-two-hour detention constituted a
delay “for delay’s sake” under McLaughlin on the basis that there was “nothing in the record to support the [finding]
that a magistrate was available”); United States v. Perez, 733 F.2d 1026, 1035–36 (2d Cir. 1984) (finding that an
eight-hour arraignment delay was unreasonable because law enforcement could have brought defendant before an
available magistrate); Anderson v. Romanowski, No. 1:08–cv–801, 2012 WL 6596118, at *10 (W.D. Mich. Dec. 4,
2012) (noting that a delay within forty-eight hours violates McLaughlin “if it is determined to be unnecessary.”); see
also Dyer, supra note 77, at 86 (“Whether a delay in issuing the warrant is reasonable, is based not on the arresting
officer’s need to collect additional information but on the arresting officer’s ability to secure a magistrate who can
issue the warrant.”). Thus, given both the clarity and the undisputed content of the record on this point, it is difficult
to explain the Tennessee Supreme Court’s decision to rejected the defendant’s Gerstein claim on the basis that
“neither party presented the sorts of evidence that one would have expected to be introduced on this issue.” Bishop,
431 S.W.3d 22, 45 (Tenn. 2014), cert. denied, 135 S. Ct. 120 (2014).
106
Bishop, 2012 WL 938969, at *4–5.
107
See id. at *6
108
Id. at *5–6 (noting that one of the arresting officers “acknowledged that [they] did not have enough to charge the
defendant with the victim’s murder,” and that another “admitted that at the time the defendant was placed in
custody, officers did not have ‘enough to charge him with a crime . . . .’”).
109
Transcript of Continuation of the Motion to Suppress at 62, Bishop, 431 S.W.3d 22 (Tenn. 2014) (No. 08-07886).
This testimony and the testimony that follows—all of which appears in the original trial record—was neither
included nor referenced in the opinion of the Tennessee Supreme Court.
110
Transcript of Motion to Suppress at 51, Bishop, 431 S.W.3d 22 (No. 08-07886); see also Bishop, 2012 WL
938969, at *4.

28

(3) “[W]e fill[ed] out a forty-eight-hour hold
affidavit . . . . So that that w[ould] give us more
time to either find evidence that [the defendant] did
it or find evidence he wasn’t there and didn’t do
it[;]”; 111
(4) “[The defendant] was going to be placed in the
jail and placed on a forty-eight-hour hold until we
could corroborate [his] statement, where he was,
cell phone records, everything we had working at
that time[;]” 112 and
(5) “[The hold procedure is] basically . . . we have
reason to believe that a person is involved in this
crime; that we’ll need additional time to investigate
it to either corroborate alibis or dispel them.” 113
Given both the number and the specificity of these admissions, two crucial facts were not
realistically subject to dispute. First, law enforcement arrested the defendant without believing
that it had probable cause to do so. 114 Second, law enforcement intentionally delayed the
defendant’s Gerstein hearing in order to gather additional evidence that it believed was necessary
to justify the defendant’s arrest. 115 Given these facts, this would appear to be precisely the
situation prohibited by McLaughlin’s proscription on “delays for the purpose of gathering
additional evidence to justify [an] arrest . . . .” 116
Upon review, however, the Tennessee Supreme Court explained that: “It matters not
whether the arresting officers themselves believed that probable cause existed.” 117 Accordingly,
the Bishop court dismissed as irrelevant the officers’ repeated admissions that they had
111

Transcript of Motion to Suppress, supra note 110, at 61; see also Bishop, 2012 WL 938969, at *5.
Transcript of Motion to Suppress, supra note 111, at 65–66; see also Bishop, 2012 WL 938969, at *5.
113
Transcript of Continuation of the Motion to Suppress, supra note 109, at 61; see also Bishop, 2012 WL 938969,
at *6.
114
See Transcript of Continuation of the Motion to Suppress at 62. See also Bishop, 2012 WL 938969, at *5–6
(noting that one of the arresting officers “acknowledged that [they] did not have enough to charge the defendant
with the victim’s murder,” and that another “admitted that at the time the defendant was placed in custody, officers
did not have ‘enough to charge him with a crime . . . .’”).
115
Transcript of Motion to Suppress, supra note 110, at 61, 65-66. See also Bishop, 2012 WL 938969 at *8 (“It
appears that the [officers] . . . detain[ed the] suspect as an investigative tool specifically designed to acquire
additional evidence to support the detention.”).
116
Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
117
State v. Bishop, 431 S.W.3d 22, 36 (Tenn. 2014).
112

29

intentionally delayed the defendant’s Gerstein hearing for the purpose of gathering additional
evidence to justify the defendant’s arrest. 118 Next, the court overruled the lower court’s holding
that the police had violated Gerstein and McLaughlin on the basis that: “[the defendant] was
arrested with probable cause.” 119 Accordingly—the officers’ remarkably candid admissions on
the matter notwithstanding—the Bishop court found no Gerstein violation.
As illustrated by the reasoning of decisions like Bishop and others, 120 if the only
consideration relevant to a Gerstein claim is whether probable cause existed to justify a
defendant’s arrest in the first place, then McLaughlin’s express prohibition on “delays for the
purpose of gathering additional evidence to justify [an] arrest” 121 is rendered superfluous, and it
actually prohibits nothing at all. According to the courts that have adopted this view, if probable
cause existed at the time of a defendant’s arrest, then the Fourth Amendment permits
investigative delays for up to forty-eight hours—even when law enforcement openly admits, as it
did in Bishop, that it delayed a defendant’s Gerstein hearing “for the [expressly prohibited]
purpose of gathering additional evidence to justify the arrest.” 122

In contrast, however, if

probable cause did not exist at the time of the defendant’s arrest, then any investigative delay is
unconstitutional both for lack of probable cause and as a Gerstein violation.

118

See id. at 43–45. The court subsequently discussed the issue via the “ plain error doctrine.” Id.
Id. at 45.
120
See, e.g., Otis v. State, 217 S.W.3d 839, 847 (Ark. 2005) (“[The arrestee] argues that [his judicial probable
cause] determination was unreasonably delayed due to the investigating officers’ desire to find more evidence.
However, . . . the McLaughlin [C]ourt condemned as unreasonable a search for additional evidence only when the
evidence is being sought in order to justify the arrest. Here, because [the defendant] confessed to the shooting
shortly after being brought to the police station, the officers already had a sufficient amount of evidence to justify
his arrest. As such, there was no unreasonable delay . . . .”); Peterson v. State, 653 N.E.2d 1022, 1025 (Ind. Ct. App.
1995) (holding that law enforcement’s decision to interrogate an arrested suspect prior to affording him a probable
cause hearing did not constitute an unreasonable delay because the police already had probable cause for the arrest);
State v. Brown, No. W2013-00182-CCA-R3-CD, 2014 WL 4384954, at *17 (Tenn. Crim. App. Sept. 5, 2014)
(citation omitted) (“[T]here was probable cause to arrest [the d]efendant. . . . Any delay in a judicial determination
in this case was not shown to be ‘for the purpose of gathering additional evidence to justify the arrest’ . . . . The
officers were simply trying to verify [the d]efendant’s alibi.”).
121
McLaughlin, 500 U.S. at 56.
122
Id. See, e.g., United States v. Daniels, 64 F.3d 311, 314 (7th Cir. 1995).
119

30

In the words of Justice Scalia, this result “taxes the credulity of the credulous.” 123 Such
reasoning plainly and erroneously conflates the Gerstein inquiry and the probable cause
requirement, which are not identical. 124 The result of this reasoning is also directly contradicted
by McLaughlin itself, which specifically stated in no uncertain terms that “delays for the purpose
of gathering additional evidence to justify [an] arrest” 125 violate the Fourth Amendment.
Consequently, to borrow a phrase coined by Chief Justice Marshall, such a holding “is too
extravagant to be maintained,” 126 and those courts that have adopted it should not maintain it any
longer.

E. Undermining the Underlying Purpose of Gerstein and McLaughlin
When combined with the warrant requirement, the principal value of the Gerstein rule is
that it ensures that every person who is arrested by the government will receive a judicial
determination of probable cause either before an arrest is made or else shortly thereafter. By
contrast, however, the rule applied in those jurisdictions that have permitted investigative
detentions for up to forty-eight hours following an arrest does not afford warrantless arrestees
this critical check on governmental abuse. Instead, it frequently results in judicial review being
conducted only after law enforcement has gathered additional inculpatory evidence, or else not at
all. Such a practice inevitably results in judicial determinations of probable cause that are tainted
by hindsight bias, significantly diminishing the value of the check on governmental abuse that
Gerstein was meant to provide. Of equal importance, such a practice also permits a substantial
number of warrantless arrests to evade judicial review of any kind.

123

Maryland v. King, 133 S. Ct. 1958, 1980 (2013) (Scalia, J., dissenting).
See supra p. 14 and note 58.
125
McLaughlin, 500 U.S. at 56.
126
Marbury v. Madison, 5 U.S. 137, 179 (1803).
124

31

Under the Fourth Amendment, “[w]hether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” 127 Accordingly, in determining whether an arrest was supported by probable cause, a
court conducting a Gerstein hearing may only consider the evidence that law enforcement had
gathered up until the moment that the defendant was arrested. 128 Thus, at least in theory,
whatever evidence police acquire after an arrest takes place may not be considered during a
Gerstein hearing—even if the after-acquired evidence is highly suggestive of the defendant’s
guilt. 129
The obvious problem, of course, is that judges are human, and humans are influenced by
the well-documented phenomenon of “hindsight bias.” Hindsight bias refers to the “tendency for
people to overestimate the predictability of past events” based on information acquired after the
event took place. 130

Substantial evidence indicates that judges are not immune from this

phenomenon (and in fact, it turns out that judges “exhibit[] hindsight bias to the same extent as . .
. laypersons”). 131 For example, research indicates that even in an experimental setting—which

127

Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (emphasis added).
Id.; cf. Powell v. Nevada, 511 U.S. 79, 90 (1994) (Thomas, J., dissenting) (“[T]here is no suggestion that the
delay in securing a determination of probable cause permitted the police to gather additional evidence to be
presented to the [m]agistrate. On the contrary, the [m]agistrate based his determination on the facts included in the
declaration of arrest that was completed within an hour of petitioner’s arrest. Thus, if the probable-cause
determination had been made within 48 hours as required by McLaughlin, the same information would have been
presented, the same result would have been obtained, and none of the circumstances of petitioner’s custody would
have been altered.”).
129
See Devenpeck, 543 U.S. at 152. Of course, as a practical matter, nothing would prevent law enforcement from
simply re-arresting the defendant on the basis of any newly acquired evidence. Whether evidence acquired as a
result of a Gerstein violation is subject to the exclusionary rule, however, remains an open question that the U.S.
Supreme Court still has yet to resolve. See Powell, 511 U.S. at 85 n.* (“Whether a suppression remedy applies [to
Gerstein violations] remains an unresolved question.”).
130
Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777, 799 (2001).
131
Id. at 818; see also John C. Anderson et al., Evaluation of Auditor Decisions: Hindsight Bias Effects and the
Expectation Gap, 14 J. ECON. PSYCHOL. 711, 725–30 (1993).
128

32

carries none of the public pressure that judges (and popularly elected judges in particular 132) face
in practice—approximately 24% of judges exhibit measurable hindsight bias. 133
Even more troublingly, research also indicates that instructing a person to suppress
specific thoughts actually has the anomalous effect of motivating enhanced consideration of
those very thoughts. 134 Assuming that judges are not immune from this phenomenon, either, it
follows that judges may be especially likely to focus on after-acquired evidence when
conducting Gerstein hearings precisely because the law prohibits them from doing so.
In light of these concerns, it becomes clear that “post hoc reviews of probable cause
determinations inevitably bias the outcome because the judge knows that the police . . .
uncovered evidence of criminal behavior.” 135 Fortunately, though, in jurisdictions that have held
that McLaughlin categorically prohibits investigative delays to a defendant’s Gerstein hearing,
judges are largely prevented from considering evidence gathered after an arrest in determining
whether probable cause existed to support the arrest in the first place. 136 This welcome result is
obtained because in such jurisdictions, law enforcement understands that any delay resulting
from further investigation will automatically trigger a Gerstein violation.

132

See Woodward v. Alabama, 134 S. Ct. 405, 408 (2013) (Sotomayor, J., dissenting) (noting that empirical
evidence demonstrates that “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to
electoral pressures[,]” and explaining why electing judges who must be mindful of political considerations “casts a
cloud of illegitimacy over the criminal justice system . . . .”); Niraj Chokshi, How Judicial Campaign Ads May be
Affecting Legal Decisions, WASHINGTON POST (Oct. 22, 2014),
http://www.washingtonpost.com/blogs/govbeat/wp/2014/10/22/how-judicial-campaign-ads-may-be-affecting-legaldecisions/. See generally Joanna Shepherd and Michael S. Kang, Skewed Justice, SKEWEDJUSTICE.ORG,
http://skewedjustice.org/ (last visited Feb. 12, 2015) (“State supreme court justices, already the targets of
sensationalist ads labeling them ‘soft on crime,’ are under increasing pressure to allow electoral politics to influence
their decisions, even when fundamental rights are at stake.”).
133
See Guthrie, supra note 131, at 818.
134
Daniel M.Wegner et al., Paradoxical Effects of Thought Suppression, 53 J. PERSONALITY & SOC. PSYCHOL. 5, 8
(1987).
135
THE POLITICAL HEART OF CRIMINAL PROCEDURE: ESSAYS ON THEMES OF WILLIAM J. STUNTZ 4 (Michael
Klarman et al. eds., 2012).
136
See, e.g., Willis v. City of Chicago, 999 F.2d 284, 289 (7th Cir. 1993) (holding that delays for the purpose of
“gathering additional evidence to justify the arrest” are unreasonable and violate both Gerstein and McLaughlin).

33

Conversely, however, in those jurisdictions that permit investigative delays for up to
forty-eight hours following a defendant’s arrest, then one of two results is likely. First, if law
enforcement is able to gather additional evidence tending to prove the guilt of the arrestee in the
forty-eight hours following a defendant’s arrest, then the integrity of the defendant’s Gerstein
hearing will be tainted by hindsight bias. Alternatively, if law enforcement is unable to gather
additional evidence tending to prove the guilt of the arrestee, then experience indicates that
police will frequently just release the defendant 137—meaning that law enforcement will evade
judicial review of its arrest altogether. Both results, of course, are undesirable.
The aforementioned Tennessee Supreme Court case State v. Bishop is instructive as to
each of these problems as well. As noted above, following the defendant’s arrest in that case,
law enforcement brought the defendant before a magistrate for a “hold hearing” and sought
permission to detain the defendant for up to forty-eight hours in order to accommodate further
investigation. 138 During this “hold hearing,” the affidavit submitted by law enforcement offered
only the following evidence to support of the defendant’s arrest: On August 19, 2008 Maurice
Taylor was shot and killed at 1548 Cella. The Shelby County Medical Examiners [sic] Office
ruled his death a homicide. During the investigation the defendant was named as the shooter.
Additional time is needed to show photo spreads and take statements. 139

137

See Mulroy, supra note 2, at 819 (noting that in Tennessee, several jurisdictions have an internal policy of
placing warrantless arrestees under a forty-eight-hour hold “to allow the police extra time to develop their
investigation” in order to see whether the suspect would be charged or released). In the Memphis area alone, one
media study determined that approximately forty percent of arrestees subjected to investigative holds were released
without charge. Id. at 848 & n.197 (citing Chris Conley, County Jail to Refuse Detainees Not Charged, COM.
APPEAL (Memphis), Nov. 20, 2000, at A1); see also State v. Bishop, No. W2010-01207-CCA-R3-CD, 2012 WL
938969, at *5 (Tenn. Crim. App. Mar. 14, 2012); Transcript of Motion to Suppress, supra note 111, at 65–66.
138
Bishop, 2012 WL 938969 at *4–5. There is, of course, actually no such thing as a “[forty-eight]-hour hold.” As
the intermediate appellate court correctly observed in that case: “The ‘[forty-eight]–hour hold’ does not exist in our
constitutional pantheon of acceptable practices.” Id. at *8.
139
Order Granting 48 Hour Detention For Probable Cause at 1, State v. Bishop, 431 S.W.3d 22 (Tenn. 2014) (No.
08-07886).

34

After a full day of additional investigation, however—which was capped by the arresting
officers successfully procuring a confession from the defendant at the twenty-four hour mark—
the evidence implicating the defendant was markedly improved. Of note, the evidence that law
enforcement presented to the magistrate at the defendant’s Gerstein hearing also was not limited
to the evidence that had been gathered at the time of his arrest. Instead, the affidavit that law
enforcement submitted to the presiding magistrate during the defendant’s Gerstein hearing
stated:
On Tuesday, August 19, 2008, approximately 11:00
p.m., the victim, Maurice Taylor, was shot in front
of his home at 1548 Cella by defendant, Courtney
Bishop. The victim later died from his injuries.
The death of Maurice Taylor was ruled a Homicide
by the Shelby County Medical Examiner.
During the course of the investigation, co-defendant
Marlon McKay was developed as a suspect in the
incident. On Friday, August 22, 2008, co-defendant
McKay gave a statement of admission to Homicide
investigators as to his part in the attempted robbery
and subsequent shooting death of the victim. Codefendant McKay also identified Courtney Bishop
as being the subject that shot and killed the victim.
On Friday, August 22, 2008, defendant Bishop was
picked up at 1081 Railton and brought to the
Homicide Office. On Saturday, August 23, 2008,
the defendant gave a statement of admission to
Homicide investigators as being responsible for the
attempted robbery and shooting death of the
victim. 140

After reviewing this second affidavit, the presiding magistrate determined that law
enforcement had already developed probable cause to arrest the defendant at the time that he was

140

Affidavit of Complaint at 1, Bishop, 431 S.W.3d 22 (No. 08-07886).

35

“picked up” for questioning. 141 Initially, this finding was unanimously reversed by a skeptical
panel of the Tennessee Court of Criminal Appeals, 142 but it was ultimately affirmed by the
Tennessee Supreme Court on direct appeal. Whether hindsight bias created by the defendant’s
confession influenced either the trial court’s or the Tennessee Supreme Court’s determination in
this regard is unknown, but the potential for such bias is clear. What is known, however, is that
according to the arresting officers themselves at the time of the defendant’s arrest: “If we didn’t
get any additional evidence, when the forty-eight hours expired, we’d [have] let him go.” 143
IV. CONCLUSION
It almost goes without saying that if the Gerstein Court had intended to sanction deferred
judicial determinations of probable cause pending continued investigation by law enforcement,
then it would not have stated that: “Once [a] suspect is in custody, . . . the reasons that justify
dispensing with the magistrate’s neutral judgment evaporate.” 144

Nothing in McLaughlin

undermines this view, and several considerations militate against the conclusion that
investigative detentions suddenly became permissible after McLaughlin. In summary, the notion
that law enforcement may deliberately delay a warrantless arrestee’s Gerstein hearing for
investigative purposes is antithetical to the common law understanding of that right, 145 conflicts

141

Perhaps fearing that the confession they had obtained from the defendant might be suppressed as the fruit of an
illegal arrest, during the defendant’s suppression hearing, the officers contended that they had not actually arrested
the defendant when they handcuffed him at his home, transported him to the police station in a squad car, and then
shackled him to a bench to be interrogated before placing him in jail for forty-eight hours. For example, after
explaining that whether the defendant was arrested depends on “what your definition of arrest is,” one officer
testified that the defendant was only arrested “[i]f your definition of arrest is not charged yet but placed in the jail on
a forty eight hour hold[.]” Transcript of Motion to Suppress, supra note 110, at 66. Similarly, another officer
testified that rather than being arrested, the defendant was merely “put on a forty-eight-hour hold for investigation,
and then he was subsequently charged[.]” Transcript of Continuation of the Motion to Suppress, supra note 109, at
16.
142
Bishop, 2012 WL 938969 at *10, rev’d, 431 S.W.3d 22 (“[T]he State . . . failed to establish that there was
probable cause for the defendant’s arrest.”).
143
Transcript of Continuation of the Motion to Suppress, supra note 110, at 62.
144
Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
145
See supra Part III.A.

36

with the U.S. Supreme Court’s decisions in Gerstein and McLaughlin, 146 and invites the rampant
abuse of investigative detentions that many jurisdictions have permitted to metastasize. 147
Additionally, although ensuring that all warrantless arrestees receive a prompt judicial
determination of probable cause does provide a minimum level of protection against “the
dangers of the overzealous as well as the despotic” police officer, 148 it is important to keep in
mind that such protection is actually comparatively minimal. For example, as the dissenting
Justices in Gerstein astutely observed, such a rule—by itself—“extends less procedural
protection to an imprisoned human being than is required to test the propriety of garnishing a
commercial bank account, the custody of a refrigerator, the temporary suspension of a public
school student, or the suspension of a driver’s license.” 149 Accordingly, any attempt to undercut
even further the already minimal protections afforded to warrantless arrestees—who are
supposed to be presumed innocent in the eyes of the law—should be carefully scrutinized. The
reasoning of those courts that have sanctioned investigative detentions following McLaughlin,
however, cannot withstand such scrutiny.
For the reasons presented in this Article, numerous courts have erred by holding that law
enforcement may deliberately delay a warrantless arrestee’s Gerstein hearing for investigative
reasons without violating the Fourth Amendment. Such a conclusion is not at all supported by
McLaughlin—which is cited as its purported justification—and in those jurisdictions that have
endorsed it, this holding has dramatically undermined the value of the check on law enforcement
that Gerstein hearings were meant to provide.

Consequently, the Supreme Court should

promptly resolve the confusion created by its decision in McLaughlin and hold that law

146

See supra Part III.B.E.
See Bishop, 2012 WL 938969 at *4–5; see also supra Part III.D.
148
Gerstein, 420 U.S. at 118.
149
Id. at 127 (Stewart, J., dissenting) (citations omitted).
147

37

enforcement may never delay a warrantless arrestee’s Gerstein hearing for investigative reasons
under any circumstances.

38