Posted: June 21, 2013
Rules of Criminal Procedure
URCrP 007. Proceedings before magistrate. Amend. Reduces from 48 hours to 24 hours the time within which a judge must determine probable cause after a warrantless arrest.
Utah Court Rules – Published for Comment
The Supreme Court and Judicial Council invite comments about amending these rules. To view the proposed amendment, click on the rule number.
To submit a comment or view the comments of others, click on “Continue Reading.” To submit a comment, scroll down to the “Leave a Reply” section, and type your comment in the “Comment” field. Type your name and email address in the designated fields and click “Post Comment.”
Comments cannot be acknowledged, but all will be considered. Comments are saved to a buffer for review before publication.
Posted: June 21, 2013
URCrP 007. Proceedings before magistrate. Amend. Reduces from 48 hours to 24 hours the time within which a judge must determine probable cause after a warrantless arrest.
The change from 48 hours to 24 hours is not workable for those of us who are not full-time judges and don’t have other judges in the building who can take the assignment. Compounding the problem is the language including the weekends in the time calculation. If there was more information about the impetus for this change it would help. The jails are already releasing many of the defendants on a promise to appear for minor matters if the time period gets close.
Rule 7 protects the Fourth Amendment rights of an arrestee (also rights under Ut. Const. Art I, Sec. 14). The U.S. Supreme Court clarified that a person who is arrested without a warrant is entitled to a determination of probable cause (PC) “promptly” and ‘without unnecessary delay’ — within 48 hours. Gerstein v. Pugh 420 US 103 (1975) and County of Riverside v. McLaughlin, 500 US 44 (1991).
Any belief that an agency has all of and/or up to 48 hours, without reason for the delay, is a mistaken belief, as Rule 7 clearly states, consistent with case law and the Fourth Amendment, that PC determinations must occur “as soon as is reasonably feasible.”
The amendment to Rule 7 creates the urgency that already exists under the Fourth Amendment and case law. The language regarding weekends was added to ensure that persons didn’t erroneously believe that Rule 2 (on time) somehow trumped the Fourth Amendment or principles described in the cases above. (When the Supreme Court said “48 hours” in McLaughlin they actually meant 48 hours)
Given that McLaughlin was decided in 1991, the advancements in technology, the fact that large and small jurisdictions throughout Utah are operating under “as soon as is reasonably feasible” and/or within 24 hours, and the fact that an arrestee does not have to be physically present for the PC determination, it is hard to image why the PC determinations cannot be done within 24 hours, barring some natural disaster. Delay for the sake of delay, schedules, and for the purpose of additional evidence gathering is not permissible under the law.
I am one of the proponents of this amendment and I anticipate some logistical concerns from law enforcement agencies, but only initially. However, it will be disheartening to learn that members of the judiciary are hesitant to correct a problem that infringes upon a person’s constitutional rights because of their availability, especially when Utah’s finest are capable of doing their part in ensuring a PC determination is had within 24 hours.
The end result is that once PC is found, bail is set and presumptively innocent people’s time in jail (upon a warrantless arrest) is minimized. The impetus of the amendment is that there are actual cases of presumptively innocent people who are arrested without a warrant and without a judge determining PC, who linger in jail, including over weekends, because of a misunderstanding of the law and agency responsibilities. The amendment will help ensure uniformity throughout Utah and instill the urgency required by law.
I am in favor of this rule. Many states have already adopted a rules that requires PC determinations within 24 hours. Arizona, for example, requires PC determinations with 24 hours. Arizona courts comply with the rules despite the fact that, like Utah, it has many rural areas with part-time judges. Utah courts can seek guidance from Arizona courts for complying with the rule. For example, Arizona courts employ pro tempore judges (usually retired, qualified individuals) to assist for an hour on a weekend.
There is no justifiable reason why an arrestee should remain incarcerated from Friday to Monday without a probable cause determination. Rural areas can use video to assist, and, if they use video, can share resources with other rural areas to meet the requirements.
Anybody who seeks a position as judge should understand that weekends are a part of job, as a position as judge is, above all else, a public service position.
We would like to thank the Rules Committee with the enormous amount of help from Mr. Schoppmann for giving us the first actual opportunity without the burden of the conflicts of interests from the previous avenues and agencies we have explored to making this much needed Rule change and clarification of the current Rules and Statues.
I would also like to thank Joseph M. Bean for posting the first notice comment to this Rule Change, as he has given the exact reason why Utah is in need of our proposed changes. Mr. Bean’s blatant misunderstanding of what is already current law is inexcusable. In the founding of our justice system, I don’t believe there has ever been the assumption that the peoples liberties shall be put on hold because of “weekends”.
This Rule change will give me the assurance that what happened to our family will not happen again without recourse. Although some employees of various law enforcement entities are immune, or at the least desensitized, to the anguish and grief caused by seemingly routine methods, there are us civilians who are extremely detached and unfamiliar and we are those who suffer these effects.
Thank you again for the understanding, without prejudice, for hearing and understanding our concerns. We know that this Rule change will save others injustice we experienced.