Bernard v. City of Palo Alto

• Decision Date: 25 February 1983
• Docket Number: No. 81-4462,81-4462
• Citation: 699 F.2d 1023
• Parties: Donald S. BERNARD, Plaintiff, v. CITY OF PALO ALTO, et al., Defendants. Donald S. BERNARD, Plaintiff-Appellee, v. Richard STAGNER, et al., Defendants, and Wesley Earl Johnson, Defendant-Appellant. Donald S. BERNARD, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. COUNTY OF SANTA CLARA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1023

699 F.2d 1023

Donald S. BERNARD, Plaintiff, v. CITY OF PALO ALTO, et al., Defendants.

Donald S. BERNARD, Plaintiff-Appellee, v. Richard STAGNER, et al., Defendants, and Wesley Earl Johnson, Defendant-Appellant.

Donald S. BERNARD, on behalf of himself and all others

similarly situated, Plaintiff-Appellee, v. COUNTY OF SANTA CLARA, Defendant-Appellant.

No. 81-4462.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1982.

Decided Feb. 25, 1983.

Bruce Nye, Popelka, Allard, McCowan & Jones, Morris Lenk, San Francisco, Cal., for appellants-defendants.

Daniel S. Mason, Furth, Fahrner, Bluemle, Mason & Wong, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, WRIGHT and TRASK, Circuit Judges.

PER CURIAM:

Plaintiff was arrested without a warrant and held for 51 hours before release without a probable cause determination by a magistrate. He sued Santa Clara County and various county officials and employees for damages, alleging a violation of his fourth amendment right to a prompt determination of probable cause. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). He also brought a class action challenging the County's policy of incarcerating persons arrested without a warrant for 48 hours and longer without a magistrate's determination of probable cause. The cases were consolidated.

The court granted partial summary judgment in favor of Bernard and the class, finding the County's policy violated the fourth amendment under Gerstein. Plaintiff's damage claims were settled. After an evidentiary hearing, the court issued an injunction requiring the County either to provide for a probable cause determination by ex parte affidavit or otherwise within 24 hours of a warrantless arrest, or to establish exigent circumstances precluding such a determination. We affirm.

Gerstein held the fourth amendment required "as a condition for any significant pretrial restraint on liberty" a fair and reliable determination of probable cause made by a judicial officer "either before or promptly after arrest." 420 U.S. at 125, 95 S.Ct. at 869 (emphasis added). The court reasoned, "a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate." Id. at 113-14, 95 S.Ct. at 862-63 (emphasis added).

The County's policy, expressed in Santa Clara County Bureau of Custody Procedure Order No. 11, purported to implement the requirement of article I, section 14 of the California Constitution and California Penal Code Sec. 849 that an arrestee be arraigned before a magistrate "without unnecessary delay." Procedure Order No. 11 set a maximum holding time without a probable cause determination of 48 hours excluding Saturday, Sunday, and holidays. Yet Sheriff Johnson admitted no more than one and one-half hours was required to book an arrestee if no special problems arose, and no more than eight to ten hours was needed under the worst conditions. Sheriff Boozer testified it took no more than four to six hours to document probable cause for a felony arrest. ¹

On this record the court's determination that the County of Santa Clara generally should hold a probable cause hearing no more than 24 hours after arrest was eminently reasonable. In the course of the hearing on remedy, defendants' counsel assured the court that "[i]f we have a 24-hour limit we can make our probable cause determinations, and at the same time respect all of the administrative needs, including court calendars of magistrates...." In its brief in this court the County reports that in response to the district court's order "[p]robable cause determinations are being made shortly after an arrestee is arrested and booked, and clearly within the 24 hour time frame."

The County appeals nonetheless because it believes the district court erred in holding the United States Constitution required the County to alter its criminal procedures, and because it believes the change has not benefited arrestees substantially since the County rarely fails to establish probable cause and has been detrimental to the County's program for release of prisoners on their own recognizance.

The County argues that Gerstein requires only that the probable cause determination be "prompt," imposes no absolute time limit, and permits a state to shape its procedures to meet the constitutional standard as it sees fit. All this is conceded. It does not follow that the district court erred. The Supreme Court provided a definition of a "prompt" determination by a magistrate. The arresting officer's determination of probable cause justifies only "a brief period of detention to take the administrative steps incident to arrest." Gerstein, 420 U.S. at 114, 95 S.Ct. at 863. Detention beyond that period requires a determination of probable cause by a neutral magistrate.

In this case the evidence established that Santa Clara County law enforcement officials required no more than 10 hours to complete the administrative steps incident to arrest. It was sensible judicial administration to fix as a benchmark the passage of a period shown by the evidence to provide ample time to complete these steps in all but extreme cases.

The time fixed was not meant to define the constitutional right. Detention for less than 24 hours without a probable cause hearing would violate the Constitution in a particular case if the circumstances were such that the administrative steps leading to a magistrate's determination reasonably could have been completed in less than 24 hours. The court's order provided a mechanism for obtaining judicial approval of delay in excess of 24 hours if exigent circumstances justify that delay. The order served the important practical function of identifying the outer time limit in the vast majority of cases. If the general circumstances were to change, the order of course would be subject to modification.

The Supreme Court recognized that some "acceleration" of existing state procedures might be required to comply with Gerstein. 420 U.S. at 124, 95 S.Ct. at 868. The County's criminal procedures are left to the county to determine, subject only to the requirement that the detention of persons arrested without a warrant be justified by a magistrate reasonably close to the time required to prepare and make the necessary showing to a magistrate.

The County's suggestion that its "own-recognizance release program" has suffered because of the court's order rests upon the affidavit of the County's Director of Pretrial Services....