home > criminal justice Detention Prior to Preliminary Proceedings in Utah Issue: In Utah, how long can a person be detained following a warrantless arrest prior to having the arrest considered by a magistrate? Brief Answer: A person detained without a warrant is entitled to a probable cause determination by a magistrate no longer than 48 hours after the arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). The Fourth Amendment requires a “prompt” judicial determination of probable cause as a pre-requisite to an extended pretrial detention following a warrantless arrest. In a probable cause (or “Gerstein”) determination, “the sole issue is whether there is probable cause for detaining the arrested person pending further proceedings.” Such proceedings are non-adversarial and the arrestee is not entitled to counsel. The Court did not specify the amount of time within which a judicial determination of probable cause must occur. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). The Fourth Amendment does not compel immediate determination of probable cause upon completion of the administrative steps incident to a warrantless arrest. However, probable cause must be determined by an impartial magistrate as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Even if a detained person receives a probable cause hearing within 48 hours, it may still be unconstitutional if the individual can prove that the probable cause determination was unreasonably delayed. Examples of unreasonable delays are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. When an arrested individual does not receive a probable cause determination within 48 hours, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstances. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance; nor do intervening weekends. Probable cause hearings can be ex-parte and non-adversarial. Strepka v. Miller, 28 Fed. Appx. 823 (10th Cir. 2001) (unpublished opinion). Neither police officers nor city were liable under 42 U.S.C. § 1983 for police officers’ alleged violation of detainee’s Fourth Amendment right to prompt judicial determination of probable cause, where detainee was held for five days prior to probable cause determination, since detainee did not allege that officers acted pursuant to municipal custom or policy. To establish municipal liability, a plaintiff must show (1) the existence of a municipal custom or policy; and (2) a direct causal link between the custom or policy and the violation alleged. Austin v. Hamilton, 945 F.2d 1155 (10th Cir. 1991). For a detention less than 48 hours, the reasonableness of the detention is a matter for the trier of fact, who must determine whether the period of detention is reasonable in light of all the circumstances accompanying arrest, including transportation, booking, filing, photographing, fingerprinting, identity verification, and criminal record wanted checks, as well as the number of individuals to be processed with the detainee in question. Rule 4-611, Utah Code of Judicial Administration: In order to detain any person arrested without a warrant, as soon as is reasonably feasible but in no event longer than 48 hours after the arrest, a determination shall be made as to whether there is probable cause to continue to detain the arrestee. The determination may be made by a magistrate, although if the arrestee is charged with a first degree felony or capital offense, the magistrate may not be a justice court judge. The arrestee need not be present at the probable cause determination . . . . The magistrate shall review the probable cause statement [provided by the arresting officer] and from it determine whether there is probable cause to continue to detain the arrestee. If the magistrate finds there is not probable cause to continue to detain the arrestee, the magistrate shall order the immediate release of the arrestee. If the magistrate finds probable cause to continue to detain the arrestee, the magistrate shall immediately make a bail determination. Utah Code of Criminal Procedure § 77-7-23(1)(a): When an arrest is made without a warrant by a peace officer or private person, the person arrested shall be taken without unnecessary delay to the magistrate in the district court, the precinct of the county, or the municipality in which the offense occurred, except under Subsection (2). An information stating the charges against the person shall be made before the magistrate. Rule 7(b) of the Utah Rules of Criminal Procedure: When any peace officer or other person makes an arrest with or without a warrant, the person arrested shall be taken to the nearest available magistrate for setting of bail. If an information has not been filed, one shall be filed without delay before the magistrate having jurisdiction over the offense. TIME CALCULATION Rule 2(a) of the Utah Rules of Criminal Procedure: In computing any period of time, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall not be included in the computation. See also Preliminary Hearings, 80 Geo. L.J. 1175 (1992); Probable Cause Determination, 1992 WL 558876 (Nev. A.G.); Expediting Arrest Processing, 2 Cornell J.L & Pub. Pol’y 121.

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