Probable Cause Flux

Probable Cause Generally

   Here is the general scenario how police officers make arrests.  A crime has been committed.  A police officer plans to make an arrest based on an investigation.  The Constitution requires the officer to present a sworn statement before a detached magistrate in order to determine probable cause.  This is what that means:  a magistrate, without any bias or attachment to the parties involved, must review the facts of the investigation to determine the suspected culprit more than likely committed the crime before an officer may constitutionally arrest a suspect.  This process results in an arrest warrant.  However, sometimes circumstances arrive when an officer is called to the scene of an ongoing crime or witnesses a crime in which the officer must make an arrest to protect the peace.  The officer must, however only make the arrest if there is probable cause the  arrestee committed the crime.  An officer cannot arrest someone for less than probable cause, e.g.,:spite.  However, because the officer is not a detached magistrate, the US Constitution still r that a magistrate determine probable cause after an arrest made without a warrant.  This is to prevent circumventing the arrest warrant protection afforded all US citizens.

    The United States Supreme Court in County of Riverside v. McLaughlin lays out a rule whereby the government is presumed to have promptly brought an arrestee before a magistrate for a probable cause review when the arrestee receives a probable cause review within 48 hours of a warrantless arrest.  The Supreme Court’s opinion was that a probable cause review held within 48 hours of a warrantless arrest places the burden on the arrestee to show a lack of promptness, i.e, the government violated its duty and your right to a prompt probable cause review.  And, when an arrestee is brought before a magistrate, after 48 hours the government is presumed to be in violation of its duty and your right to a prompt probable cause, which would then require the government to show extraordinary circumstances prevented a more prompt probable cause review

    Here are four instances where government action is in disregard to the rule.

   1)When a court resets the date of a probable cause review without the arrestee’s consent because the arresting officer is not present.

  2)When, in a most peculiar circumstance, an arrestee is given a bond hearing in lieu of a probable cause review-one would not need a bond if one were not confined due to an illegal arrest.

  3)When no effort is made at all to bring an arrestee before a magistrate for a probable cause review within 48 hours.

  4)When an arrest warrant is taken out after the arrest, while the defendant sits in confinement, purposely not brought before the magistrate to contest the officer’s testimony-an officer who now has an interest in ensuring his actions are seen as constitutional after the fact.