Right to prompt determination of probable cause

Police must have probable cause to make a legal arrest. Probable cause means the police have a reasonable belief that the person they are arresting has committed a crime. An arrestee has a right to a court determination of whether or not there is probable cause. Unless the prosecution establishes a bona fide emergency or other extraordinary circumstance, the arrested person must receive the probable cause determination promptly, usually within 24 to 48 hours. However, if the arrest was pursuant to a warrant, then a magistrate already made the probable cause determination upon issuing the warrant, so no further determination is required.

How a criminal defense attorney might deal with excessive delay

If you have been arrested but have not had a probable cause review within the prescribed time, there are various steps your criminal defense attorney might take on your behalf.

Writ of habeas corpus

Your attorney may seek your release by filing what is called a “writ of habeas corpus” with the court. However, filing a writ takes time for the attorney to prepare the papers and time to schedule the hearing, and by the end of that time you might have been arraigned. Therefore, an effective criminal defense attorney might choose to start with telephone calls, going up the chain of command: to the arresting officer or the officer’s commander, to a responsible assistant district attorney, to the supervising prosecutor in charge of preliminary proceedings, and then to the judge or court clerk. The last call if necessary is for the purpose of scheduling the presentation of the habeas corpus petition. During that call, your attorney should try to explain the situation to the judge or clerk. The judge’s desire to avoid unnecessary litigation may prompt the judge to make a call to get you arraigned sooner and at less expense to the court than later.

Federal civil rights action

Your attorney might also consider threatening a federal civil rights action against the officers, sheriff and prosecuting office. The threat of such an action should bring immediate relief, because if you bring such an action and prevail, the defendants must pay your attorney’s fees.

Suppression of evidence of confessions and other statements

Perhaps you are not able to retain a defense lawyer in time to file a habeas corpus writ or bring a civil rights action. Even so, the undue delay in bringing you before a magistrate for your initial appearance and probable cause determination can still have consequences for the prosecution. The delay may be because the police are trying to extract a confession from you. In many jurisdictions, confessions and other statements elicited from you during the delay will be suppressed. That means that the statements cannot be used as evidence against you.

Support for your release on bail

Your criminal defense attorney can reference the delay during the argument for bail. Judges sometimes will consider the state’s abusive conduct when deciding whether or not to release the defendant.