D.Kan.: Violation of Riverside 48 hour rule does not lead to dismissal of charges

A recurring issue I’ve had to explain to clients and family members repeatedly lately: A violation of Riverside’s 48 hour rule does not lead to dismissal of charges. And, a state’s violation of Riverside’s 48 hour rule is irrelevant to federal prosecution after feds took case over. A quick summary of the law in United States v. Salinas, 2011 U.S. Dist. LEXIS 121110 (D. Kan. October 19, 2011):

To safeguard an individual’s right to be free from unreasonable search and seizure, the Fourth Amendment requires judicial determination of probable cause within 48 hours of a warrantless arrest.8 If a suspect remains incarcerated after 48 hours, the government bears the burden of proving an emergency or other extenuating circumstances that justify the delay.9 The Supreme Court has declined to articulate the appropriate remedy in the event the government violates the Fourth Amendment by exceeding the 48-hour rule.10

8 Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991) (citing Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)); see also U.S. Const. amend. IV.

9 McLaughlin, 500 U.S. at 57.

10 See Powell v. Nevada, 511 U.S. 79, 85, 114 S. Ct. 1280, 128 L. Ed. 2d 1 n.* (1994) (“Whether a suppression remedy applies in that setting remains an unresolved question.”).

. . .

Second, the government did not violate Salinas’s Fourth Amendment rights because he appeared before a federal magistrate less than 24 hours after Salina’s arrest by federal officials.23 It is inarguable that Salinas did not receive a judicial determination of probable cause on state charges within 48 hours of his arrest by state officials. But as Salinas acknowledges, no precedent authorizes the dismissal of a federal indictment as a remedy for constitutional violations by the state.24

23 McLaughlin, 500 U.S. at 56. The Supreme Court has noted that hearings held within the 48-hour period may nonetheless violate the Fourth Amendment if the detainee “can prove that his or her probable cause determination was delayed unreasonably.” Id. In this case, however, Salinas has not made any allegation that there was unreasonable delay between the time of his arrest by federal officers and his appearance before the magistrate judge.

24 See, e.g., United States v. Headdress, 953 F. Supp. 1272, 1294 (D. Utah, 1996) (noting that 48-hour rule announced in McLaughlin did not take effect with respect to federal charges until the defendant was arrested by federal officers).