ANOTHER LOOK AT THE “48 HOUR” RULE

As a result of the revised general order that requires arrestees be taken before a judge for a probable cause hearing, without exception, no later than 48 hours from the time of the arrest, vitriolic comments, such as “The Chicago Police Department has decided that the ability to defend itself from lawsuits is more important than the safety of our communities” have been posted on the latest FOP newsletters. These assertions are ridiculous and are completely unfounded. These changes are in the best interest of all involved, particularly Watch Commanders.

It is true that the United States Supreme Court never stated that an arrestee must be taken before a Judge within 48 hours; rather, the Court stated “the burden shifts to the state to justify that there was extraordinary circumstances or a bona-fide emergency that would justify the delayed hearing.” What is being overlooked is what the Court explicitly stated was NOT an emergency, such as “the fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings. Nor, for that matter, do intervening weekends.” The truth is the cases which fit the criteria are rare. Ironically, the examples often used to justify a delayed hearing are the precise examples the Court stated were to be resolved within the first 48 hours. To suggest that courts are willing to accept any plausible explanation as a justification beyond that time is erroneous.

It is also true that recently the Illinois Supreme Court ruled that even if the state cannot prove an emergency, an incriminating statement will not automatically be suppressed solely because of a “48 hr” violation; rather, “this violation along with other factors will be considered in determining if under the totality of the circumstances, the statement was obtained voluntarily.” However, it should not be comforting just because there is no automatic exclusion. The law cannot be clearer; the state has the burden to demonstrate the voluntariness of the statement. Although there are courts that have ruled statements admissible notwithstanding the violation, there are other courts that ruled to the contrary. Considering that the burden is already on the state, coupled with the “free card” defense would now have to argue for suppression due to a violation, we sure would be making defense counsels’ job that much easier in keeping statements excluded.

Again, it is true that in Kyle v. Patterson the court ruled that in spite of the “48 hr” violation, there would be no punitive damages assessed because of lack of ill will on the part of the officers. Regardless, why should the city waste tax payers’ money and pay off some criminal (assuming he is in fact guilty!) if compensatory damages could still be proven. Although it is correct that the dissenter’s Opinion, who thought the jury should decide the appropriateness of punitive damages, is not binding, only shortsightedness would preclude one from not recognizing that the court could have easily ruled the other way; and might in a future case. And if punitive damages were to be assessed, the city is barred from paying that amount on our behalf. There simply is no reason to risk being held personally liable for something so avoidable.

To suggest that the new order somehow places the community in danger is absolutely ludicrous. If anything, it is not following the law that would put the community in danger i.e. defendant’s case dismissed because of a suppressed statement. And even if there were any truth to this assertion, it is an issue for the courts to resolve, not law enforcement. Finally, contrary to rumors, the right to counsel does NOT attach, there is no right to confront witnesses or any other constitutional rights as compared to a preliminary hearing. The hearing is only to ensure there was probable cause for the arrest. As a result of this revision, Department members are going to be better insulated from law suits, arrestees will less likely get statements suppressed, and they will have little chance of recovering money from the city-or us! Just take the guy to court!!!!

Lt. Jeff Mappa

Any opinions expressed above are those of the author and do not necessarily reflect those of the CPLA.