Hearing Within 48 Hours of Arrest
The Court in County of Riverside v. McLaughlin, 500 U.S. 44 at 56 (1991) held that "judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." McLaughlin, 500 U.S. 44 at 56, 111 S. Ct. 1661 at 1670, 114 L. Ed. 2d 49.
The Court emphasized, however, that this 48-hour rule is not absolute:
This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours.
Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.
Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake.
In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility.
Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes.
In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.
The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. 500 U.S. at 56-57, 111 S. Ct. at 1670.
Under County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), therefore, it is not impermissible under the federal constitution for an arrestee to be detained overnight pending the availability of a magistrate.
This Court has customarily interpreted Article III, 6 of the West Virginia Constitution in harmony with federal case law construing the Fourth Amendment. See State v. Jones, 193 W. Va. 378, 382 n.6, 456 S.E.2d 459, 463 n.6 (1995); State v. Duvernoy, 156 W. Va. 578, 582, 195 S.E.2d 631, 634 (1973).