Getting arrested: How long can you be held in jail?

Getting arrested: How long can you be held in jail?

Being arrested can be a scary experience (obviously).  Part of this fear and anxiety may come from the fact that many people don’t know their rights in these situations, which is understandable.  Because if you’ve ever attempted to read the law, your eyes probably immediately glazed over from the thick brain-deafening dullness that seems more likely to induce a nap than inform you.  I’m sure most people would probably rather sit needle-up on a lawn dart and spin than read the Minnesota Rules of Criminal Procedure (well, maybe not).  In other words, the law can be confusing, to say the least, especially when it comes to knowing your rights when you’re arrested and how long you may (or may not) have to spend in custody.  Therefore, I’ll first discuss some key terms in this blog – in plain language that humans can understand – and then I’ll discusses two rules that affect how long you may be held in custody without being charged or appearing before judge.

What is probable cause?

In short, “probable cause” is a Fourth Amendment concept, and the threshold standard police must establish before arresting you, or searching you or your property.  A seizure occurs when the police either (1) stop or (2) arrest you, both of which trigger Fourth Amendment protections under the U.S. Constitution.  However, the standard is different for each.  Before police can issue a warrant to arrest you, probable cause must exist, which essentially is defined as a reasonable belief that can be articulated based on facts and circumstances that a crime has been committed.  But the police may temporarily detain (or “stop”) you based only on “reasonable suspicion,” which is a standard less than probable cause — and allows for police to either confirm or deny their suspicion.  Reasonable suspicion includes, for example, car stops, pedestrian stops and detention of occupants while officers execute a search warrant.  Reasonable suspicion can turn into probable based on the particular circumstances of the situation.

The Fourth Amendment requires that probable cause is established before you’re arrested (or searched).  To obtain an arrest (or search) warrant, police must show a judge (or magistrate, but let’s leave that out for the sake of simplicity) that probable cause exists.  The judge is suppose to independently evaluate the sworn testimony (usually in the form of an affidavit) to either approve or deny the request for a warrant.

In other words, police are required to establish probable cause before they arrest you, which can be based on a warrant, or not in some situations because it would be impractical.  For example, a person arrested on suspicion of DWI is rarely arrested with a warrant simply because police typically do not have enough time to obtain a warrant in these situations in the interests of public safety.  Therefore, the law allows for some flexibility in allowing when exactly a judge must find probable cause in situations arrests are made without a warrant, and when charges need to be brought and your appearance before a judge is required.

The 48-Hour Rule

The 48-Hour Rule applies when police arrest you without a warrant, which means that a judge did not make a finding of probable cause before the arrest.  In these situations, you’ll be held on what is called a “Probable Cause Hold”, which means that a judge must determine whether the police had probable cause to arrest you in the first place.  This determination must occur within 48 hours of your arrest, and can be made without your presence nor appearance in court.  The clock starts running as soon as you’re arrested, and does not stop for weekends or holidays, but time extensions can be made for “good cause”.  If a judge determines probable cause supported the arrest, you can be held longer than 48 hours.  This means that you’re either placed on the first available court calendar or conditions of release are set and you’re ordered to return to court at a later date.  If a judge determines that probable cause did not support the arrest, you must be immediately released.

The 36-Hour Rule

The 36-Hour Rule requires that you be charged and brought before a judge within 36 hours of your arrest.  If you’re charged during this timeframe, you’ll be brought into court to appear before a judge.  This is usually a pre-trial release (or bail) hearing, which is when the judge either sets bail or releases you on certain conditions. However, unlike the 48-Hour Rule, the clock does not run continuously from the time you’re arrested.  The clock does not count the day you’re arrested, Sundays, and holidays.  Therefore, because of the differences in time calculation between the two rules, the 36-Hour Rule is oftentimes longer than the 48-Hour Rule. But like the 48-Hour Rule, if you’re not charged and brought before a judge within this timeframe, you must be released.

The 48-Hour Rule versus 36-Hour Rule

Like an arrest, criminal charges must also be supported by probable cause.  But there’s a difference between these two rules, although they do work in tandem simultaneously.  For example, a judge must first find probable cause to support an arrest within 48 hours of the arrest.  In addition to that, charges must be filed and you must be brought before a judge within 36 hours of your arrest.  If you’re released before charges are filed by the prosecutor, you could still be charged later via a summons in the mail.  Both clocks run simultaneously even though the time calculation is different.

Are these rules fair?

Good question.  Should people be entitled to a hearing before a judge sooner than 36 hours from an arrest without a warrant?  Maybe.  But there are logistical issues, which include: giving adequate time for the processing of paperwork, allowing for records to be reviewed, and charging documents drafted, appearance of counsel arranged, and appropriate bail determined, and for the police to do their detective work.

On the one hand, the police need time to do their job effectively.  On the other, people’s liberty should not be deprived without due process of law.  Where’s the balance?  When someone gets arrested without a warrant, how long should they be held until a judge can determine whether the arrest should have taken place in the first place?  What’s reasonable?

It’s easy to sit here and pontificate in a blog.  However, these laws have consequences, and a real effect on people’s lives.  This is why it’s important to find a lawyer who understands these rules because it can mean the difference between freedom and incarceration, and a conviction and a dismissal.

Related posts

Leave a Reply