Rules of Juvenile Procedure – Comment Period Closed April 28, 2019

I urge the Committee on the Rules of Juvenile Procedure to change Rule 9 to require a judicial finding of probable cause within 48 hours, including weekends and holidays, of when a child is admitted to detention without a warrant. Furthermore, I recommend that the rule either use the term “probable cause” or define the term “reasonable basis.”

THE UNITED STATES SUPREME COURT HAS HELD THAT INDIVIDUALS SUBJECT TO A WARRANTLESS ARREST SHOULD RECEIVE A JUDICIAL DETERMINATION OF PROBABLE CAUSE WITHIN 48 HOURS INCLUDING WEEKENDS AND HOLIDAYS

For decades, United States Supreme Court precedent has held that individuals subject to a warrantless arrest should receive a judicial determination of probable cause within 48 hours, including weekends and holidays. In Gerstein v. Pugh, 420 U.S. 103, 126 (1975), the Court held that “the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention….” In County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the Court held that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Furthermore, while noting that some extraordinary circumstances may justify additional delay, the Court held “[t]he 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. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.” Id. at 57.

Rule 9 of the Utah Rules of Criminal Procedure recognizes this precedent and provides for a judicial determination of probable cause for all adults in the State of Utah within 24 hours of arrest. However, despite the fact that this issue was raised – at least 15 months ago – at the Committee on the Rules of Juvenile Procedure and more recently as a comment to the last proposed (but not adopted) version of Rule 9, the Committee has refused to propose a version of Rule 9 that would provide for a judicial determination of probable cause for all juveniles in the State of Utah within 48 hours of arrest. Without a rule providing for a probable cause determination within 48 hours, according to data recently provided to the Utah Board of Juvenile Court Judges, on average, 59 children per month are held for more than 48 hours before they have a probable cause determination. Additionally, on average, 8 children per year are held in detention for longer than 48 hours when there was not a “reasonable basis” (to use the term in the current and proposed rule) for them to be admitted to detention in the first place.

THE CURRENT AND PROPOSED VERSIONS OF RULE 9 CONFLATE THE CONSTITUTIONALLY-REQUIRED PROBABLE CAUSE DETERMINATION WITH THE STATUTORILY-MANDATED DETENTION HEARING

It has been suggested that the juvenile court may not make a probable cause determination outside of the statutorily-mandated detention hearing. While Rule 9 currently combines the constitutionally-required probable cause determination with the statutorily-mandated detention hearing, nothing requires them to occur simultaneously. In fact, Utah Code Ann. 78A-6-113(3)(d) explicitly recognizes that in some cases, a juvenile court may need to order the release of a child prior to a detention hearing: “The court may, at any time, order the release of the minor, whether a detention hearing is held or not.”

The combination of pretrial proceedings (such as the detention hearing) with the probable cause determination was exactly the issue that was before the United States Supreme Court in County of Riverside v. McLaughlin. In that case, the United State Supreme Court said, “Gerstein permits jurisdictions to incorporate probable cause determinations into other pretrial procedures” such as the detention hearing in juvenile court. Id. at 55. “But flexibility has its limits; Gerstein is not a blank check. A State has no legitimate interest in detaining for extended periods individuals who have been arrested without probable cause.” Id.

Again, while Rule 9 in its current and proposed forms combines the probable cause determination with the detention hearing, nothing in statute requires that combination. During weekdays, detention hearings are routinely scheduled within 48 hours after arrest. However, by excluding weekends and holidays from the calculation, Rule 9 – in both its current and proposed form – justifies routine delays of the probable cause determination merely to facilitate its combination with the detention hearing in violation of United States Supreme Court precedent.

It has been suggested that a separate probable cause determination by a judge that results in continued detention of a child would trigger the need for a detention hearing in order to make the statutorily-required findings for continued detention. That is not correct and is evidence of the conflation of the probable cause determination with the detention hearing. If a judicial officer makes a probable cause determination prior to a detention hearing, there is no order – implied or otherwise – that the minor is held subject to further order of the court. Rather, a finding of probable cause is just that – a finding of probable cause. Even if a judicial officer makes a finding of probable cause prior to a detention hearing, the minor only remains detained on the authority of the “designated facility staff person” pursuant to UCA 78A-6-112(5)(b)(i) and the minor may, in fact, still be released by a probation officer pursuant to UCA 78A-6-113(2) and Probation Policy 2.9(3) (“The probation officer may review the minor’s detention status and determine if it is appropriate to release the minor to the minor’s parent/guardian/custodian prior to the initial detention hearing”) (approved by the Judicial Council and effective December 17, 2018).

The proposed probable cause determination could take place electronically. For example, the probable cause statement could be communicated electronically from the detention center to the on-call judge (in those districts which have adopted a magistrate rotation). The result of the probable cause determination could be electronically communicated from the on-call judge back to the detention center. See generally Rule 9 of the Utah Rules of Criminal Procedure. Furthermore, since detention hearings are routinely scheduled within 48 hours after arrest during weekdays, the electronic probable cause determinations could be limited to weekends and holidays.

While Utah Code Ann. 78A-6-113(4) excludes weekends and holidays from the calculation of when a detention hearing must occur, it does not prohibit a judicial determination of probable cause during that time period. I would urge the Committee to enact a version of Rule 9 that would require a judicial determination of probable cause within 48 hours including weekends and holidays. In the alternative, I would urge the Committee to end the debate about whether Gerstein and County of Riverside apply to juveniles in the State of Utah by including a definitive statement within Rule 9 explaining why juveniles are not entitled to a probable cause determination within 48 hours of arrest, especially in light of recent juvenile justice statutory reform efforts as discussed in the next section.

THE COMMITTEE’S DEFERENCE TO STATUTE IN MATTERS OF COURT PROCEDURE IS IMPROPER GIVEN THE SUPREME COURT’S CONSTITUTIONAL MANDATE TO “ADOPT RULES OF PROCEDURE…TO BE USED IN THE COURTS OF THE STATE”

It has been suggested that since the current and proposed versions of Rule 9 use the same or similar language contained in the Utah Code, the Committee cannot make certain changes to Rule 9 without a legislative change. That suggestion is directly contradictory to the Utah Supreme Court’s constitutional mandate found in Article VIII, Section 4 of the Utah Constitution: “The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature….” See also Maxfield v. Herbert, 2012 UT 44, ¶15 (“[W]e note that our rules of procedure are not necessarily subordinate to the provisions of state statutes. It is this court’s constitutional prerogative to ‘adopt rules of procedure and evidence to be used in the courts of the state,’ subject to the legislature’s power to ‘amend’ our rules ‘upon a vote of two-thirds of all members of both houses.’‖ UTAH CONST. art. VIII, § 4”).

Furthermore, even if the Legislature proposed new detention hearing procedures by amending current statutes, it’s entirely likely that the Judicial Council through its Liaison Committee would oppose such legislation on grounds that it encroaches on the Court’s constitutional authority to “adopt rules of procedure…to be used in the courts of the state.” See Rule 3-106(1)(D) of the Utah Code of Judicial Administration (“The Council may endorse, oppose, amend or take no position on proposed legislative initiatives. The Council shall limit its consideration of legislative matters to those which affect the Constitutional authority, the statutory authority, the jurisdiction, the organization or the administration of the judiciary”). Additionally, the enactment of a rule providing for the protections outlined in Gerstein and County of Riverside is entirely consistent with the philosophy underlying recent juvenile justice statutory reform efforts. See generally, Utah Juvenile Justice Working Group Final Report (accessible at https://justice.utah.gov/Documents/CCJJ/Justice%20Policy/Research/Final%20Report/Utah%20JJ%20Final%20Report.pdf).

THE COMMITTEE SHOULD ACTIVELY INDICATE WHETHER PROBABLE CAUSE OR REASONABLE BASIS IS REQUIRED FOR WARRANTLESS ADMISSION OF CHILDREN TO DETENTION

Utah Code Ann. 78A-6-112(1)(b) provides that “A minor may be taken into custody by a peace officer without order of the court if there are reasonable grounds to believe the minor has committed an act which if committed by an adult would be a felony.” The authority for peace officers to take minors into custody without order of the court also extends to misdemeanor offenses in which “the minor is seriously endangered in the minor’s surroundings; or seriously endangers others; and immediate removal appears to be necessary for the minor’s protection or the protection of others.” (See UCA 78A-6-112(1)(c) and Rule 6 of the Utah Rules of Juvenile Procedure).

Notwithstanding the fact that the lesser standard of “reasonable grounds” is usually reserved for those with a diminished liberty interest, such as for those on probation or parole, the Committee has extended the term “reasonable basis” as the standard to apply to all children booked into detention without a warrant by incorporating it into the current and proposed versions of Rule 9. See State v. Burningham, 2000 UT App 229 at ¶9. The United States Supreme Court has emphasized that in juvenile cases, “it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’” In re Gault, 387 U.S. 1, 27-28 (1967). While the United States Supreme Court has undoubtedly recognized that juveniles have a diminished privacy interest in certain circumstances (with regard to searches at school, for example; see New Jersey v. T.L.O., 469 U.S. 325 (1985)), the Committee’s adoption of the “reasonable basis” standard in Rule 9 affects the liberty interest of all juveniles admitted to detention without the benefit of a warrant. Additionally, the impact extends to the liberty interests of parents, as well, since it allows for the admission of their children to detention under a standard lower than probable cause. See In re D.G., 2017 UT 79, fn. 5 (“While not raised in this case, we note that juveniles are not entirely ‘independent actors with individual rights. . . . [P]olice questioning of minors also threatens the rights of parents, “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.”’ Note, Juvenile Miranda Waiver and Parental Rights, 126 HARV. L. REV. 2359, 2359 (2013) (third alteration in original) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion)). When government actors ‘threaten[] to break “familial bonds, [they] must provide the parents with fundamentally fair procedures.”’ Id. (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)). Interrogation without the presence of an interested adult ‘creates a substantial risk that children will be removed from their parents after confessing falsely’ and may also ‘cause psychological harm that damages the parent-child relationship.’ Id.”).

The use of the term “reasonable basis” in the current and proposed versions of Rule 9 adds further confusion given the use of “probable cause” in Rule 7. Under Rule 7, a judge may issue a warrant based on the standard of probable cause. However, under the current and proposed versions of Rule 9, continued detention after a warrantless arrest is based on the standard of “reasonable basis.”

As such, if the Committee intends for a lower standard than probable cause to apply to children admitted to detention without a warrant, I would recommend that said intention be expressed actively by defining “reasonable basis” rather than passively expressing such intention by enacting the proposed rule which does not define that term. If the Committee does not intend for a lower standard than probable cause to apply to children admitted to detention without a warrant, I would recommend that Rule 9 be amended to use the term “probable cause” rather than “reasonable basis.”

In conclusion, for the reasons stated above, I would strongly urge the Committee on the Rules of Juvenile Procedure to change Rule 9 to require a judicial finding of probable cause within 48 hours, including weekends and holidays, of when a child is admitted to detention without a warrant. On the other hand, if it is the Committee’s position that juveniles in the State of Utah are not entitled to a probable cause determination within 48 hours of a warrantless arrest, I would recommend a change to the rule to affirmatively express that conclusion. Furthermore, if it is the Committee’s intention for a lower standard than probable cause to apply to children admitted to detention without a warrant, I would recommend that said intention be expressed actively by defining the term “reasonable basis,” rather than passively expressing such intention by enacting the proposed rule which does not define “reasonable basis.” The changes I propose are not prohibited by Utah statute. Rather, they are consistent with the constitutionally-mandated role of the Utah Supreme Court to adopt rules of procedure to be used in the juvenile courts of the state.