Memphis’s 48-Hour Investigative Hold Policy Heads to the Supreme Court

By Daniel Horwitz:

In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy.  The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1]  Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.

Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2]  As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours.  If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it.  If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.

The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures.  In the 1991 case County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional.  Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place.  However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error 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 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” 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.[4]

This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring.  There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted.  Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).

[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).

[3] The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.

[4] Horwitz, supra, at 522–23 (citations omitted).