The Second Circuit issued two criminal opinions today, both of which we will cover this week. In one, United States v. Pabon, the Circuit rejected a set of Fourth Amendment challenges where police obtained a CT scan which revealed that the defendant was body-packing narcotics. The opinion, available here, is as notable for what it does not hold as for what it does.
In Pabon, police obtained a search warrant authorizing an x-ray of the defendant’s lower abdomen to determine whether he was body-packing narcotics. Based on the x-ray, an emergency room physician reported that body-packing was “unlikely.” A detective nevertheless obtained a search warrant for a CT scan based on his testimony that the x-ray results were consistent with those he had observed in other body-packing cases. The CT scan suggested body-packing, and the defendant was given laxatives that led him to pass eight packages of heroin and cocaine slightly 24 hours after his arrest. The defendant did not receive a Gerstein hearing (to determine whether there was probable cause to detain him) until 63 hours after the arrest.
The Second Circuit held that (1) police were not obligated to release Pabon based on the negative x-ray results, (2) suppression was not the appropriate remedy for the failure to conduct a Gerstein hearing within the 48-hour window required by County of Riverside v. McLaughlin, and (3) based on the facts of the case, police did not unreasonably delay Pabon’s probable cause hearing. Each of these holdings, however, is notably limited in scope.
First, the panel left open the possibility that probable cause to detain a defendant can dissipate based on information that emerges after a warrantless arrest. The facts of Pabon–which included statements by physicians that qualified their written x-ray report, and erratic behavior by the defendant–gave probable cause to continue detaining the defendant notwithstanding the x-ray report. The panel did not decide, however, “whether an officer may, in an extreme case,be required to release a detainee arrested without a warrant where probable cause has unequivocally dissipated, rendering further detention prior to the magistrate’s determination unreasonable.” Slip op. at 27.
Second, the panel rejected the government’s argument that it complied with McLauglin‘s 48-hour rule by obtaining judicial determinations that it had probable cause to obtain the x-ray and CT scan. The determination that there is probable cause to search someone differs from the determination that there is probable cause to detain them, and “the former cannot serve as a categorical substitute for the latter.” Id. at 40. (The panel nevertheless concluded that suppression was unwarranted because the narcotics were discovered within 48 hours of the arrest, and the McLauglin volation was not a but-for cause of the discovery.)
Finally, the panel took care to emphasize that, even when no McLauglin violation occurs, the government cannot unreasonably delay a probable cause hearing. The facts of the case led the panel to conclude that police had not delayed the defendant’s Gerstein hearing for the purpose of buttressing their probable cause to detain him. The panel took care to emphasize, however, that suppression may be warranted where “[c]ase‐specific circumstances . . . demonstrate that the purpose of a delay is to avoid – even if temporarily – a magistrate’s neutral probable cause determination.” Id. at 42.
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