Powell v. Nevada

• Citation: 128 L.Ed.2d 1,114 S.Ct. 1280,511 U.S. 79
• Decision Date: 30 March 1994
• Docket Number: 928841
• Parties: Kitrich POWELL, Petitioner, v. NEVADA
• Court: United States Supreme Court

511 U.S. 79

114 S.Ct. 1280

128 L.Ed.2d 1

Kitrich POWELL, Petitioner,

v NEVADA.

No. 92-8841.

Supreme Court of the United States

Argued Feb. 22, 1994.

Decided March 30, 1994.

Syllabus ^*

Petitioner Powell was arrested on November 3, 1989, for felony child abuse. Not until November 7, however, did a magistrate find probable cause to hold him for a preliminary hearing. The child in question subsequently died of her injuries, and Powell was charged additionally with her murder. At the trial, the state prosecutor presented prejudicial statements Powell had made to the police on November 7. The jury found him guilty and sentenced him to death. On appeal, the Nevada Supreme Court, sua sponte, raised the question whether the 4-day delay in judicial confirmation of probable cause violated the Fourth Amendment, in view of County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49, which held that a judicial probable cause determination must generally be made within 48 hours of a warrantless arrest, and that, absent extraordinary circumstances, a longer delay is unconstitutional. The state court decided that McLaughlin was inapplicable to Powell's case, because his prosecution commenced prior to the rendition of that decision.

Held: The Nevada Supreme Court erred in failing to recognize that McLaughlin's 48-hour rule must be applied retroactively, for under Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, "a . . . rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, . . . not yet final" when the rule is announced. Although the 4-day delay here was presumptively unreasonable under McLaughlin, it does not necessarily follow that Powell must be set free or gain other relief. Several questions remain open for decision on remand, including the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin ), the consequence of Powell's failure to raise the federal question, and whether introduction at trial of what Powell said on November 7 was "harmless" in view of a similar, albeit shorter, statement he made prior to his arrest. Pp. ____.

108 Nev. 700, 838 P.2d 921, (1992), vacated and remanded.

GINSBURG, J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined.

Michael Pescetta, Las Vegas, NV, for petitioner.

Dan M. Seaton, Las Vegas, NV, for respondent.

Miguel A. Estrada, Washington, DC, for the U.S. as amicus curiae by special leave of the Court.

Justice GINSBURG delivered the opinion of the Court.

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), we held that the Fourth Amendment's shield against unreasonable seizures requires a prompt judicial determination of probable cause following an arrest made without a warrant and ensuing detention. County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), established that "prompt" generally means within 48 hours of the warrantless arrest; absent extraordinary circumstances, a longer delay violates the Fourth Amendment. In the case now before us, the Supreme Court of Nevada stated that McLaughlin does not apply to a prosecution commenced prior to the rendition of that decision. We hold that the Nevada Supreme Court misread this Court's precedent: "[A] . . . rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, . . . not yet final" when the rule is announced. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).

I

Petitioner Kitrich Powell was arrested on Friday, November 3, 1989, for felony child abuse of his girlfriend's 4-year-old daughter, in violation of Nev.Rev.Stat. § 200.508 (1991). That afternoon, the arresting officer prepared a sworn declaration describing the cause for and circumstances of the arrest. Not until November 7, 1989, however, did a magistrate find probable cause to hold Powell for a preliminary hearing. That same day, November 7, Powell made statements to the police, prejudicial to him, which the prosecutor later presented at Powell's trial. Powell was not personally brought before a magistrate until November 13, 1989. By that time, the child had died of her injuries, and Powell was charged additionally with her murder.

A jury found Powell guilty of first-degree murder and, following a penalty hearing, sentenced him to death. On appeal to the Nevada Supreme Court, Powell argued that the State had violated Nevada's "initial appearance" statute by failing to bring him before a magistrate within 72 hours, and that his conviction should therefore be reversed.

The Nevada statute governing appearances before a magistrate provides:

"If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate:

"(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and

"(b) May release the arrested person if he determines

that the person was not brought before a magistrate without unnecessary delay." Nev.Rev.Stat. § 171.178(3).

Powell emphasized that 10 days had elapsed between his arrest on November 3, 1989, and his November 13 initial appearance before a magistrate. In view of the incriminating statements he made on November 7, Powell contended, the unlawful delay was prejudicial to him. Under Nevada law, Powell asserted, vindication of his right to a speedy first appearance required that his conviction be reversed, and that he be set free. Appellant's Opening Brief in No. 22348 (Nev.), p. 85.

The District Attorney maintained before the Nevada Supreme Court that there had been no fatal violation of Nevada's initial appearance statute. First, the District Attorney urged, the confirmation of probable cause by a magistrate on November 7 occurred within 72 hours of the November 3 arrest (excluding the intervening weekend). This probable cause finding, the District Attorney contended, satisfied the 72-hour prescription of Nev.Rev.Stat. § 171.178. In any event, the District Attorney continued, under Nevada law, an accused waives his right to a speedy arraignment when he voluntarily waives his right to remain silent and his right to counsel. Powell did so, the District Attorney said, when he made his November 7 statements, after he was read his Miranda rights and waived those rights. See Respondent's Answering Brief in No. 22348 (Nev.), pp. 56-60. In reply, Powell vigorously contested the District Attorney's portrayal of the probable cause determination as tantamount to an initial appearance sufficient to satisfy Nev.Rev.Stat. § 171.178's 72-hour prescription. Powell pointed out that he "was neither present [n]or advised of the magistrate's finding." Appellant's Reply Brief in No. 22348 (Nev.), p. 1.

The Nevada Supreme Court concluded, in accord with the District Attorney's assertion, that Powell had waived his right under state law to a speedy arraignment. 108 Nev. 700, ----, 838 P.2d 921, 924-925 (1992). If the Nevada Supreme Court had confined the decision to that point, its opinion would have resolved no federal issue. But the Nevada Supreme Court said more. Perhaps in response to the District Attorney's contention that the magistrate's November 7 probable cause notation satisfied Nev.Rev.Stat. § 171.178 (a contention the State now disavows), the Nevada Supreme Court, sua sponte, raised a federal concern. That court detoured from its state-law analysis to inquire whether the November 3 to November 7, 1989, delay in judicial confirmation of probable cause violated the Fourth Amendment under this Court's precedents.

County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the Nevada Supreme Court recognized, made specific the probable cause promptness requirement of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); McLaughlin instructed that a delay exceeding 48 hours presumptively violates the Fourth Amendment. Merging the speedy initial appearance required by Nevada statute and the prompt probable cause determination required by the Fourth Amendment, the Nevada Supreme Court declared: "The McLaughlin case renders [Nev.Rev.Stat. §] 171.178(3) unconstitutional insofar [as] it permits an initial appearance up to seventy-two hours after arrest and instructs that non-judicial days be excluded from the calculation of those hours." 108 Nev., at ----, 838 P.2d, at 924. While instructing that, henceforth, probable cause determinations be made within 48 hours of a suspect's arrest, the Nevada Supreme Court held McLaughlin inapplicable "to the case at hand," because that recent precedent postdated Powell's arrest. Id., at ----, n. 1, 838 P.2d, at 924, n. 1. McLaughlin announced a new rule, the Nevada Supreme Court observed, and therefore need not be applied retroactively. Ibid.

Powell petitioned for our review raising the question whether a state court may decline to apply a recently rendered Fourth Amendment decision of this Court to a case pending on direct appeal. We granted certiorari, 510 U.S. ----, 114 S.Ct. 57, 126 L.Ed.2d 26 (1993), and now reject the state court's prospectivity declaration.

II

Powell's arrest was not validated by a magistrate until four days elapsed. That delay was presumptively unreasonable under McLaughlin's 48-hour rule. The State so concedes. Appellee's Answer to Petition for Rehearing in No. 22348 (Nev.), p. 7; Tr. of Oral Arg. 28. The State further concedes that the Nevada Supreme Court's retroactivity analysis was incorrect. See ibid. We held in Griffith v. Kentucky, 479 U.S., at 328, 107 S.Ct., at 716, that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final."...