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LIVELY v. CULLINANE

May 9, 1978

ARTHUR L. LIVELY, et al., Plaintiffs,
v.
MAURICE J. CULLINANE, et al., Defendants



The opinion of the court was delivered by: BRYANT

 Plaintiff and his class seek from this court an injunction and declaratory relief against the District of Columbia Police Department and Police Chief to prohibit them from detaining persons they arrest without presenting them promptly to a judicial officer. Plaintiff in his present motion for partial summary judgment has submitted data, in the form of stipulations, affidavits and depositions, which show that the pattern and practice of the police Department is to detain persons before presenting them to a magistrate for a period of time which is unreasonable under Fourth Amendment standards. This court grants plaintiffs' motion for partial summary judgment as to count II of the complaint and as to count III directs defendants to provide the court with a detailed description of their present system of processing arrestees before presentment and a list of procedures to eliminate the problems which the court outlines as causing unconstitutional delay. The plaintiffs have also noted rules of thumb which might prove helpful in shaping a remedy in this case. The defendants might be wise to address themselves to these suggestions.

 I. Plaintiff in this case is Arthur Lively, who was arrested around 3 a.m. on March 9, 1974, on charges of disorderly conduct. He alleges that he was detained at the police station until 5:30 a.m. while the police filled out forms. He alleges that he was not allowed to post bond or collateral nor was he taken quickly before a magistrate. He claims that he was given the chance to pay $10 for the police to forget the incident but Lively insisted that he wanted to go to trial and wanted to post bond. He was then fingerprinted and once more given the opportunity to post $10 which would be forfeited in exchange for his release by police. He further alleges that his wrist was broken by a policeman pushing him and causing him to fall. Although the defendants refute most of these facts, except the time and date of arrest, this court finds it must rule for plaintiffs on this summary judgment motion on the grounds that it is a class action.

 The certified class which Lively now represents is "those citizens who are arrested as that term is used in the Fourth Amendment of the Constitution and deprived of rights guaranteed them under the Constitution, for defendants' alleged failure to make prompt presentment regardless of the length of detention or arrest and regardless of whether the individual's name is ever entered on an arrest book." The parties' definition of the plaintiff class as all those whose Fourth Amendment rights have been violated is not a definite class since it becomes defined only upon declaration of this court that certain processing procedures of the police are unconstitutional. The court would prefer to define the class as "all those persons who have been arrested and detained by police for over one-and-a-half hours before presentment, who were not released within a short time after arrest on bond, citation or collateral, and who, therefore, are likely to have suffered unlawful and unconstitutional detention." If this definition of the class is used those persons within the class are readily identifiable. The court may, in its discretion, redefine and modify a class in a way which allows maintenance of the suit as a class action. Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968), rev'd on other grounds, 438 F.2d 825 (2d Cir. 1970) Thomas v. Clarke, 54 F.R.D. 245 (D. Minn. 1971). The court realizes that a police officer may take a greater length of time to process an arrestee than one-and-a-half hours and still be acting within constitutional bounds. However, the evidence submitted by plaintiffs, most of which comes from depositions taken of defendants' agents, show the average time to process an arrestee should normally take no longer than one-and-a-half hours. The Court accepts the description of the pattern and practice of the police department submitted by plaintiffs, since the defendants do not offer any opposing evidence. Therefore, even these individuals who require more than one-and-a-half hours to be processed may have a constitutional claim that they were not processed and presented as quickly as possible.

 In general, the reasonableness of a particular search is determined "in light of the particular circumstances." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Because this suit is a class action and because of the detailed evidence of usual police processing procedures which plaintiffs have introduced, *fn1" this Court feels it is able to judge whether the pattern and practice of the Department meets up to Fourth Amendment standards. In other words, it need not examine the particular circumstances of detention before presentment on a case-by-case basis. The remedy the court orders will be the minimum constitutional standard the Department must uphold. Of course, even meeting this standard in certain cases will not ensure that the police have not unconstitutionally detained an arrestee before presentment. However, it will give the Department certain rules of thumb by which it can operate within constitutional bounds.

 The plaintiff class has moved for partial summary judgment. The defendants have opposed this motion on the grounds that whatever the delay between arrest and presentment it is reasonable and therefore constitutional. Defendants contend that the number of different community service and law enforcement tasks they must carry out demonstrates that the delay between arrests and presentment is reasonable. They argue that those cases which speak of the right to a prompt presentment are concerned primarily with prejudice inuring to the defendant because he is coerced to give testimonial evidence against himself during a long delay before presentment. Here the plaintiffs do not allege, nor do they prove, such prejudice.

 Defendants further add that the time to process each arrestee differs according to the crime for which he has been arrested. So wide variances in processing times are understandable. The defendants argue also that other agents of the United States are responsible for part of the delay before presentment, and no remedy can be ordered by the court if a constitutional violation is found, unless these other parties are joined.

 The court finds all defendants' arguments unconvincing and that they have fundamentally misconstrued the "reasonableness" requirement of the Fourth Amendment.

 II. The standard by which the court is to judge whether the defendants' processing procedures before presentment pass constitutional muster is whether they lead to the detainment of the arrestee only so long as needed to complete "the administrative steps incident to arrest." Gerstein v. Pugh, 420 U.S. 103, 114, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). After that short period of time the core guarantee of the Fourth Amendment moves into the foreground - the individual arrested and held by police must be brought before a judicial officer who determines if probable cause exists to believe that a crime has been committed by the person detained. As the Supreme Court in United States v. United States District Court, 407 U.S. 297, 316, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972) pointed out, the "very heart of the Fourth Amendment directive" is that a search or seizure necessarily involves "the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation."

 The essential reason the detached judgment of a judicial officer is needed to detain an individual beyond the critical "stop and frisk" or processing steps after arrest is that a judicial officer belongs to a branch of the government different than the police who are charged with investigating crime. "The point of the Fourth Amendment . . . consists in requiring that . . . inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 13-14, 92 L. Ed. 436, 68 S. Ct. 367 (1948).

 This judicial judgment can be delayed only for the time necessary for the police to process an individual arrested and detained. At the point at which these administrative steps are completed (or should have been completed) the Fourth Amendment operates to force the police to present the arrestee before a magistrate.

 The Court in Terry v. Ohio, supra, clearly said that "the scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or a seizure in light of the particular circumstances." Id. at 21.

 The issue in this case is how long may the police detain an arrestee before presenting him or her before a magistrate? The Supreme Court, in exercising its supervisory powers over the administration of criminal justice in the federal courts as early as 1943 established in McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608 (1943), that the police must present a person "with reasonable promptness." Id. at 344. Arraignment of a detained individual needs to be held "without unnecessary delay" the court repeated in 1957, on the basis of the then new Rule 5(a) of the Federal Rules of Criminal Procedure. Mallory v. United States, 354 U.S. 449, 452, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957). In both cases the court held that the confessions extracted by police officers during the extended period defendants were detained prior to presentment could not be admitted at trial. The whole purpose of Rule 5(a) is to protect individual rights without hampering law enforcement. Id. at 453.


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