If I’ve heard it once, I’ve heard it … Okay, I didn’t actually count how many times I’ve heard it. But I’ve heard it a lot. In cop shows. In police movies. In crime novels. In detective comics, and probably Detective Comics. Pretty much any gendarme genre. Those immortal words spoken by police officers everywhere, “We can hold you for 72 hours without charging you.”

Actually, the police can’t. But they do it anyway

What the oft-heard line is referring to is the policy of an investigatory hold . Under the practice, the police would place someone in custody without charging him or affording him bail – assuming he could afford bail in the first place – for a period of time. During this time, the police would investigate the crime more fully. At the end of the investigatory hold period, the person being investigated would either be formally charged or released.

Under the 14^th Amendment right to liberty, people can only be denied their right to liberty if they are afforded full due process – you know; formal arrest, formal charges, bail hearing, trial. That whole megillah. Without those things, there’s a 800-pound gorilla in the room. A gorilla called the Constitution. (What, you thought I was going to say the gorilla was called Magilla?)

In some jurisdictions, the investigatory hold period is 20 hours. In some it’s 24 hours. In others, it’s 48 hours. In some – such as in Cleveland, Ohio until an administrative judge ended the practice in 2012 – it was 72 hours.

Investigatory holds happen for a couple of reasons, both of which are unconstitutional and illegal. The first is that if person is taken into custody and held pending an investigation, it usually takes between 48 and 72 hours for a lawyer to be able to get a writ of habeas corpus before a judge who can rule that the detainee be freed. That’s one origin for the incorrect police notion that they can hold suspects for 72 hours withoug charging them.

It should be noted, as well, that this paragraph applies to regular people who have been taken into custody. So-called military detainees or prisoners of an undeclared war who are rotting away in military prisons such as Quantanamo Bay need not apply. For a habeas corpus, that is, because they won’t get one.

The other reason for the investigatory hold is that the police misinterpret certain laws to claim that the laws give them the statutory authority to conduct investigatory holds. They don’t. But the police claim, incorrectly, that they do.

What frequently happens is that a state will pass a law requiring that when a person is arrested without a warrant, that person must be formally charged or released within some period of time. The statute will then set a time period which it intended to be the maximum period. Prisoners could always be charged or brought before a magistrate in less time than the statutory maximum, but it couldn’t happen in more than the maximum time set by the law. That statutory time limit varied from state to state. It could be 20 hours, 24 hours, 48 hours, or 72 hours depending on the state and the statute. (Do those numbers look familiar? They should.)

These statutes were intended to benefit people who has been arrested. They were meant to guarantee that those being arrested be formally charged or brought before a judge for a probable cause hearing and bail within a set time. They were meant to insure that people were not being held in custody indefinitely. The statutes were created, because formal charges and judges aren’t always available as soon as a person is arrested.

The police can arrest people, but the police can’t charge them with a crime. Only a prosecutor’s office can bring formal charges. In addition, the police can’t set bail or determine whether there is probable cause that those being arrested committed the crime for which they were arrested. That power belongs only to judges or magistrates. However, people aren’t always arrested when the prosecutor’s office is open or when court is in session.

People are frequently arrested at night. Or on the weekends. I represented a lot of people who had been arrested. (In fact, I’ll bet I only represented people who had been arrested.) So I can tell you from personal experience – not the experience of my having been arrested but the experience of talking to clients who had been arrested – a good number of them are arrested at night or on the weekend. That’s because a lot of crimes are committed at night or on the weekend.

Here’s the thing about prosecutor and courts. They have regular office hours. 9 to 5 type hours. Prosecutor’s offices and courts aren’t usually open for business at night or on the weekends. So people being arrested at those times can’t be brought before a judge or formally charged as soon as they’re arrested. They have to wait until the prosecutor’s office is open or court is in session.

The statutes I talked about earlier were adopted to make sure that people arrested after hours were brought before a magistrate or formally charged as soon as possible. So they’d set a time limit in the statute, mandating that charges be filed or magistrates be faced within that time limit.

Many police departments started using the statutes as a weapon against the people who were arrested, even though the statutes were intended to be a shield for the people being arrested. The police started interpreting the statutes as something that authorized them to take people into custody, while they investigated the crimes. They’d say, the statute permits us to hold suspects for what ever period of time is put into the statute without charging them or taking them before a judge. So the police would arrest a person to investigate a crime further, and hold the person in custody for the maximum time the statute allowed pending the results of that further investigation.

The practice is questionable. At best. At worst it’s unconstitutional and illegal. As I’m a glass-half-empty kind of guy, I’m going with the worst-case scenario. I say investigatory holds are unconstitutional and illegal.

I’m not alone in saying this.

Some District attorney offices have been polled as to whether they believe the practice of investigatory holds is legal. The district attorney offices polled routinely concluded it wasn’t.

The Supreme Court of the United States has held on numerous occasions that investigatory detentions are illegal. The court found such detentions to be arrests, and arrests which are made as a pretext for finding evidence violates the 4^th Amendment protection against unreasonable seizure.

Courts also hold that detaining a person for investigation for a period of time longer than the earliest practical time that person could be brought before a magistrate is unconstitutional. So if a statute requires that the detainee be brought before a magistrate within 48 hours, but the police could have brought the detainee before a magistrate within 24 hours, the extended investigatory detention was unconstitutional.

Investigatory holds still exist. They shouldn’t. They violate the 4^th Amendment because they’re unreasonable seizures. They violate the 6^th Amendment, because police say the right to counsel doesn’t begin until formal charges are filed, so we can question this detainee without an attorney present as long as charges haven’t been filed. They violate the 8^th Amendment, because they perform an end around to the Amendment’s requirement that people who are arrested are entitled to bail. They violate the 14^th Amendment, because every one of the problems I just listed denies the detainee of liberty without due process of law. And they violate any concept of decency.

So the next time you hear the line, “We can hold you for 72 hours without charging you,” on TV, remember doing that wrecks and violates the Constitution. And there’s already too much wrecks and violates on television.