# Kanekoa v. City & County of Honolulu

> Court of Appeals for the Ninth Circuit · June 29, 1989 · 879 F.2d 607

URL: https://www.frixlaw.com/law-library/cases/8972003

## Case

- **Full name:** Charles K. KANEKOA Warren E. Kanekoa v. CITY AND COUNTY OF HONOLULU Douglas G. Gibb, and State of Hawaii, Defendant/Intervenor-Appellee Damien MELEMAI v. CITY AND COUNTY OF HONOLULU Douglas G. Gibb
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 29, 1989
- **Citations:** 879 F.2d 607; 1989 WL 70020
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Nelson, Tang, Wallace
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8972003

## How later opinions describe it (automated extraction)

- explaining that “the fourth amendment does not permit the police to detain a suspect merely to investigate”
- holding the police did not interview the arrestees merely to build a case against them because the arrestees conceded the police had probable cause to arrest
- holding an interview is part of the “administrative steps incident to arrest” that justify delay
- noting that investigation of a suspect is not an administrative- step incident to arrest

## Opinion text

NELSON, Circuit Judge,
dissenting in part:
I dissent from Part II of the majority opinion because I believe that the Hawaii police department’s detention of Damien Melemai, Warren Kanekoa, and Charles Kanekoa violated their constitutional right to a prompt probable cause hearing. The officers detained Melemai and the Kane-koas after warrantless arrests without presenting them before a neutral magistrate for a determination of probable cause for a constitutionally impermissible purpose and for an unreasonable length of time. The fourth and fourteenth amendments and this circuit’s prior decisions require reversal of the decision below. See Bernard v. City of Palo Alto, 699 F.2d 1023, 1025 (9th Cir.1983).
The Supreme Court has held that the fourth amendment requires “as a condition for any significant pretrial restraint on liberty” a fair and reliable determination of probable cause by a judicial officer “either before or promptly after arrest.” Gerstein v. Pugh, 420 U.S. 103, 125 , 95 S.Ct. 854, 868 , 43 L.Ed.2d 54 (1975). The Court reasoned that “a policeman’s on-the-scene assessment of probable cause provides legal justification only for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate.” Id. at 113-14 , 95 S.Ct. at 862-63 (emphasis added). When the “administrative steps” have been completed, the police must take the suspect *615 before a magistrate to establish probable cause, or they must let him go. 1
The Supreme Court has not specified which police activities constitute “administrative steps” for which police may delay presentment of arrestees. The majority rests its finding that a pre-presentment interview is such an administrative step on Gerstein’s reference to steps that are “incident” rather than “necessary” to an arrest. [Majority Opinion at 610] The majority ignores the language in our circuit precedent interpreting Gerstein , however, which indicates that the police may only delay presentment for those administrative steps that are necessary to presentment of the case before a magistrate. Bernard, 699 F.2d at 1026 . We held in Bernard that “[detention for less than 24 hours without a probable cause hearing would violate the Constitution in a particular case if the circumstances were such that the administrative steps leading to a magistrate’s determination reasonably could have been completed in less than 24 hours.” Id. Similarly, the court observed that although “[t]he County’s criminal procedures are left to the county to determine,” id., they are “subject[ ] to the requirement that the detention of persons arrested without a warrant be justified by a magistrate reasonably close to the time required to prepare and make the necessary showing to a magistrate.” Id. The court was contemplating such pre-presentment necessities as “booking” an arrestee, id. at 1024 , and preparing probable canse affidavits, id. at 1026 . The Seventh Circuit used similar language in Llaguno v. Mingey, 763 F.2d 1560 (7th Cir.1985), holding that a forty-two hour detention was too long because it did not “require 42 hours to book David Llaguno and complete other paperwork necessary for bringing him before the magistrate.” Id. at 1568. The Llaguno court defined “brief detention” as the period necessary “to allow some interval for booking the arrested person and completing other paperwork before presenting him to the magistrate.” Id. The court summarized its holding by stating that the plaintiff was entitled to a directed verdict that the defendants were liable for his being held in jail “beyond the brief period that would have been necessary to book him and bring him before a magistrate.” Id. This language demonstrates that, like our own circuit in Bernard , the Seventh Circuit believed that Gerstein authorized police to delay presentment of an arrestee before a neutral magistrate for a determination of probable cause only for administrative steps, such as completing initial, minimal paperwork and writing probable cause affidavits, that are “necessary for bringing him before the magistrate.” Id. Such steps do not include interviewing the arrestee. 2 Ma- *616 bry v. County of Kalamazoo, 626 F.Supp. 912, 914 (W.D.Mich.1986); Lively v. Cullinane, 451 F.Supp. 1000, 1005 (D.D.C.1978) (holding that it is an unconstitutional seizure to detain an individual without a probable cause hearing for a period of time longer than it reasonably takes to document the arrest and to search and secure the individual to ensure that he will not harm anyone or destroy evidence, and holding that paperwork not necessary to presentment, fingerprinting, and line-ups are not administrative procedures “incident” to an arrest for which a probable cause evaluation may be delayed); cf. Doulin v. City of Chicago, 662 F.Supp. 318, 327 (N.D.Ill.1986) (holding that post-arrest detention of misdemeanor arrestees to permit identification via fingerprint clearing was not an administrative step incident to arrest permitted by the fourth amendment prior to a neutral determination of probable cause to arrest), rev’d on other grounds sub nom. Robinson v. City of Chicago, 868 F.2d 959 (7th Cir.1989) (holding that former arrestees lacked standing to seek equitable relief). But see Sanders v. City of Houston, 543 F.Supp. 694 (S.D.Tex.1982), aff 'd. mem., 741 F.2d 1379 (5th Cir.1984); cf. Warren v. City of Lincoln, 864 F.2d 1436 (8th Cir.1989) (implicitly holding that questioning is a valid administrative procedure for which presentment before a magistrate may be delayed, where the ar-restee was detained for two hours and twenty minutes prior to presentment).
By analogy, Supreme Court and Ninth Circuit cases interpreting Federal Rule of Criminal Procedure 5(a) support this conclusion. Although Rule 5(a) does not apply to state cases, it sets out a standard for prompt presentment analogous to the constitutional standard as interpreted by Gerstein, 420 U.S. at 113-14 , 95 S.Ct. at 862-63 . See, e.g., Doulin, 662 F.Supp. at 333 . The Supreme Court has indicated that Rule 5(a) prohibits police from delaying presentment of a detainee before a neutral magistrate for the purpose of interviewing the detainee. The Supreme Court held:
The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on “probable cause.” The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be “booked” by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.
Mallory v. United States, 354 U.S. 449, 454 , 77 S.Ct. 1356, 1359 , 1 L.Ed.2d 1479 (1957). The Ninth Circuit has interpreted Mallory and Rule 5(a) to prohibit officers from delaying presentment of a detainee for the purpose of interrogation. United States v. Mayes, 417 F.2d 771, 772 (9th Cir.1969) (holding that the delay in bringing a defendant before a magistrate was unreasonable where the three-hour interval between his arrest and the time after which a magistrate would be unavailable was devoted to questioning the defendant). 3
*617 The Supreme Court did not distinguish, as the majority here attempts to do, between interviews that merely “provide the police with basic information” and those that are “for the purpose of building a case.” [Majority Opinion at 611] Indeed, the Court explicitly held that Rule 5(a) prohibits police from interviewing a suspect prior to presentment before a magistrate regardless of their purpose in conducting the interview. The police may not “carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” Mallory, 354 U.S. at 454 , 77 S.Ct. at 1359 (emphasis added). Not only does the majority’s distinction between interviewing to gather basic information and interviewing to buttress a case contravene Supreme Court authority, it is also impractical. Because the only difference between an interview conducted “for the purpose” of accumulating evidence and one conducted merely to gather information is the subjective intent of the interviewer, the majority’s rule invites circumvention. A factfinder’s determination whether the delay violated a detainee’s constitutional rights will turn on the officers’ version of their own subjective intentions in interviewing the detainee. This is particularly true because the majority’s opinion virtually authorizes police to question detainees about their involvement in the alleged criminal activities. [Majority Opinion at 611 (defining the “basic information” police may seek in a pre-presentment interview to include information that will aid the police in evaluating the strength of their case) ] The majority rule may also provide overly zealous police, uncertain whether they have sufficient evidence to meet the probable cause standard but aware that a “routine” interview may uncover additional facts, with great incentive to arrest. See Llaguno, 763 F.2d at 1568 (“The only reason for delay in bringing [the defendant] before a magistrate was that the police hoped to build a case against [him] while he was in jail_ [To allow such detentions] would inject an element alien to our system —imprisonment on suspicion, while the police look for evidence to confirm their suspicion.”).
The majority asserts that the police have an important interest in interviewing a detainee because an interview “may inform the police of the suspect’s identity, residence, competence, [ ] whether it is safe to release the suspect pending further proceedings,” and whether to charge the suspect. [Majority Opinion at 611] 4 The majority fails, however, to identify what interest the police have in interviewing the detainee prior to presentment before a neutral magistrate to determine whether the police have probable cause to detain the individual at all. An interview, like other information-gathering functions, could as easily and efficiently be performed after presentment as before. Indeed, should the magistrate determine that the police did not have probable cause to arrest the detainee, a prompt probable cause hearing would obviate the need to perform these information-gathering tasks. To the extent that the officers' purpose in interviewing the suspect is to gather information to strengthen their showing of probable cause, their purpose is clearly unconstitutional, as the majority acknowledges. [Majority opinion at 612] Gerstein, 420 U.S. at 120 n. 21, 95 S.Ct. at 866 n. 21; Llaguno, 763 F.2d at 1568 . The police do not have a sufficient interest in interviewing a detainee prior to a probable cause hearing to justify a possibly unwarranted extension of *618 the intrusion on an individual’s liberty caused by detention.
As the Supreme Court observed in Ger-stein, “[o]nce' the subject is in custody ... the reasons that justify dispensing with the magistrate’s neutral judgment evaporate.” Gerstein, 420 U.S. at 114 , 95 S.Ct. at 863 . There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. Nor have the police cited any interest in administrative efficiency that requires that interviews be conducted prior to presentment. In contrast, the individual’s interest in avoiding any unnecessary period of involuntary confinement by the police is great. The Supreme Court recognized the individual’s strong interest in avoiding such a restriction on his liberty, observing that “[t]he consequences of prolonged detention may be more serious than the interference occasioned by the arrest,” id. at 114 , 95 S.Ct. at 863 , imperiling the suspect’s job and impugning his reputation. The individual’s interest in avoiding the indignity of physical restraint itself is strong. Therefore, a detainee’s liberty interest in a prompt determination whether the police had probable cause to arrest him prevails over the police’s desire to interview the detainee before such a determination.
Although the police’s delay of presentment of Melemai and the Kanekoas before a magistrate for the purpose of interviewing them was constitutionally invalid, the police were justified in delaying presentment to allow the detainees to regain sobriety. See United States v. Manuel, 706 F.2d 908, 914 (9th Cir.1983) (“Although we do not sanction delay of any kind in bringing an accused person before a magistrate, delay engendered by such humanitarian motives [as allowing an inebriated person to regain sobriety] can hardly be deemed unreasonable per se.”). Even if the police in this case had been motivated by a desire to allow the detainees to regain sobriety to avoid involuntary confessions and to allow them to participate meaningfully in their probable cause hearings, rather than by a desire to interview the detainees, however, the police detained Melemai and the Kane-koas for unreasonably long periods of time. The majority argues that whether the length of appellants’ detentions was unreasonable is a question for the fact-finder to determine after considering all of the circumstances. This argument “misconstrue[s] the nature of the right [appellants] enjoy[ ] under Gerstein . The Supreme Court in Gerstein sharply limited the ‘balancing,’ ‘consideration of all the circumstances,’ or determination of ‘reasonableness’ a court or finder-of-fact should engage in such cases when it stated that the existence of probable cause justifies only the arrest and ‘a brief period of detention to take the administrative steps incident to arrest.’ ” Mabry, 626 F.Supp. at 915 (quoting Gerstein, 420 U.S. at 113-14 , 95 S.Ct. at 862-63 ). Where the length of detention is clearly unreasonable, it violates the ar-restee’s rights under Gerstein as a matter of law, and is not within the purview of the fact-finder. See id.; Bernard, 699 F.2d at 1025 .
The length of appellants’ detentions in this case was clearly unreasonable and violated their rights as a matter of law. All three men were detained for at least several hours after they could reasonably have been expected to be completely sober, and none of the three men was given a second intoxilyzer test. Melemai was detained for twenty hours. He was arrested at approximately 5:40 p.m. His blood alcohol level was found to be .14 percent when it was measured sometime between 6:15 p.m. and 8:00 p.m. An average man’s blood alcohol level would drop from .14 percent to .05 percent, the level at which Honolulu Police Department regulations permit detainees to be interviewed within four hours, and would reach .00 percent in an additional three hours. See 13 The New Encyclopedia Britannica 218 [hereinafter Britannica ]. Therefore, Melemai was completely sober at the very latest by early morning, probably by 3:00 a.m. The defendants observe that no magistrates were available to conduct probable cause hearings between 6:00 p.m. and 8:00 a.m. Even if detainment until morning was justified by the unavailability of a magistrate, a question I do not address, Melemai’s *619 detention without a probable cause hearing until his release at 1:30 p.m, of the day following his arrest was unconstitutional. Melemai was delayed for approximately ten and one-half hours beyond the time he regained sobriety, and five and one-half hours beyond the time a magistrate was available. The police have failed to justify this delay by citing any “administrative step incident to arrest” that they needed to complete-prior to presentment. Therefore, the judge’s finding that Melemai’s detention was reasonable was clearly erroneous.
The officers also detained Charles Kane-koa for approximately five hours longer than was necessary to allow him to regain sobriety. Charles had a blood alcohol level of .08 percent at 5:30 a.m. His alcohol level probably would have reached .05 by 6:30 a.m. and .00 percent by 9:30 a.m. 13 Britannica 218. The police did not release Charles, however, until 2:40 p.m. Even if Charles remained inebriated significantly longer than an average male, his extended detention without presentment before a neutral magistrate was unreasonable.
Warren Kanekoa’s detention also was unreasonable. Warren’s blood alcohol level was .14 percent at 5:30 a.m. It probably would not have dropped to .05 percent until 9:30 a.m., and to .00 percent until 11:30 a.m. See 13 Britannica 218. The police did not bring Warren before a magistrate and did not release him until 2:40 p.m. Thus, Warren was not released until approximately three hours after he was completely sober.
Even if a pre-presentment interview was a valid administrative step for which presentment may be delayed, the judge’s finding that the length of Melemai’s detention was not unreasonable was clearly erroneous and no reasonable jury could find that Charles Kanekoa’s detention was reasonable as a matter of law. Melemai and Charles Kanekoa were both detained well beyond the period of time necessary to allow them to regain sobriety and to conduct an interview. Melemai was completely sober for approximately ten and one-half hours before he was interviewed. Even if it was reasonable for the police to detain Melemai until 8 a.m., when the detective working on Melemai’s case returned to duty, a question we need not address, it was not reasonable to delay his interview while they continued to investigate for another three and one-half hours. The only explanation provided for the failure to interview Melemai at 8 a.m. is that “early-morning interviews are inappropriate.” This explanation is inadequate. It was a much greater intrusion on Melemai’s liberty to detain him from 8 a.m. to 11:30 a.m. without a neutral determination of probable cause than it would have been to conduct an “early-morning” interview at 8 a.m. Because the Constitution allows the police to delay a probable cause hearing only to take the “administrative steps incident to arrest,” Gerstein, 420 U.S. at 114 , 95 S.Ct. at 863 , and the police have failed to cite any need to complete an administrative step during the three and one-half hour period they delayed Melemai the day after his arrest, the detention was unreasonable even if it was constitutionally permissible to delay the probable cause hearing in order to conduct an interview.
Similarly, the police delayed interviewing Charles Kanekoa for several hours after he was completely sober while they continued to search for evidence and for the complaining witnesses, without any reference to an administrative need. Therefore, like Me-lemai, Charles Kanekoa was detained unconstitutionally even if an “interview” were an administrative step incident to arrest for which police could delay a probable cause hearing.
Although the appellees violated Mele-mai’s and the Kanekoas’ constitutional rights, compensatory damages are not available because the appellants do not contest the findings below that the police had probable cause to arrest them. Had the police brought the appellants before a magistrate as soon as they were sober, the magistrate would have found probable cause and returned them to the police for interviews, so that appellants probably would not have been released until even later than they in fact were. Nominal dam *620 ages, however, are available. See Carey v. Piphus, 435 U.S. 247, 266 , 98 S.Ct. 1042, 1053 , 55 L.Ed.2d 252 (1978).
Because Melemai and the Kanekoas were detained for an unconstitutional purpose and for an unreasonable length of time without a neutral determination of probable cause, I would reverse the decision below and remand for an award of nominal damages and a determination whether an award of attorneys’ fees is appropriate.
. The Court has never said how long the “brief period” may be. The American Law Institute believes that two hours are sufficient. Model Code of Pre-Arraignment Procedure, sec. 130/2(1) (1975). The district court in the District of Columbia required an explanation for a delay of greater than one and one-half hours, because that was the average time it should normally take to process an arrestee. See Lively v. Cullinane, 451 F.Supp. 1000, 1003 (D.D.C.1978). The Seventh Circuit has held that four hours requires some explanation. See Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (7th Cir.1986) (citing Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1350-52 (7th Cir.1985)), ce rt. denied, 481 U.S. 1028 , 107 S.Ct. 1952 , 95 L.Ed.2d 525 (1987). So too has a district court in Illinois. See Doulin v. City of Chicago, 662 F.Supp. 318, 332 (N.D.Ill.1986). In Bernard v. City of Palo Alto, 699 F.2d 1023 (9th Cir.1985), the Ninth Circuit upheld a district court’s decision that a twenty-four hour delay in the County of Santa Clara was per se unconstitutional. Id. at 1025 . A district court in Texas came to the same conclusion. Sanders v. City of Houston, 543 F.Supp. 694, 702 (S.D.Tex.1982) (“Hence, ... when a person has been arrested on a policeman’s assessment of probable cause, the person arrested must be brought before a judicial officer as soon as possible, but in any event not later than twenty-four (24) hours after the arrest.”), aff’d, 741 F.2d 1379 (5th Cir.1984). A recent Second Circuit decision has come out at the far end of the scale, concluding that a prearraignment detention of seventy-two hours was constitutionally permissible, though undesirable, given the particular causes of delay in the case before the court and the difficulties in curing that delay. See Williams v. Ward, 845 F.2d 374, 388-89 (2d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 818 , 102 L.Ed.2d 807 (1989).
. The Ninth Circuit came to the same conclusion in an analogous area of law. In United States v. Wilson, 838 F.2d 1081, 1085 (9th Cir.1988), we interpreted 18 U.S.C. § 3501 (c) (1982), which mandates that a confession "shall not be *616 inadmissible solely because of delay in bringing [the defendant] before a magistrate ... if such confession was made or given by such person within six hours immediately following his arrest or other detention.” Id. Subsection (c) excuses delays for more than six hours only when such delay "is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer." Id. § 3501(c). We held in Wilson that a delay in bringing a detainee before a magistrate for the purpose of interviewing the detainee is unreasonable. Wilson, 838 F.2d at 1085 . We stated that "[t]he desire of the officers to complete the interrogation is, perhaps, the most unreasonable excuse possible under § 3501(c).” Id.
. The circuits are in conflict regarding this issue. The D.C. Circuit, like the Ninth Circuit, concluded that Rule 5(a) and Mallory prohibited pre-presentment detention for the purpose of interviewing an arrestee. See, e.g., Gross v. United States, 393 F.2d 667, 668 (D.C.Cir.1967); Perry v. United States, 336 F.2d 748, 750-51 (D.C.Cir.1964); Spriggs v. United States, 335 F.2d 283, 287 (D.C.Cir.1964). The Eighth Circuit, however, has interpreted Rule 5(a) to permit federal law enforcement officials to delay presentment in order to interview the detainee, despite the Supreme Court’s language. See *617 United States v. Boyer, 574 F.2d 951, 955 (8th Cir.), cert. denied, 439 U.S. 967 , 99 S.Ct. 457 , 58 L.Ed.2d 426 (1978). The Boyer court did not refer to the Supreme Court’s holding in Mallory . The Second Circuit also held in 1965 that Rule 5(a) allows police to detain suspects for a reasonable period of time in order to question them. See United States v. Middleton, 344 F.2d 78, 83 (2d Cir.1965).
. The majority’s interpretation of the term "administrative steps” will give police departments "flexibility" [Majority Opinion at 610] to delay presentment of arrestees before a magistrate in order to perform any function that "provide[s] the police with basic information from the suspect." [Majority Opinion at 611] The police's quest for “basic information” in this case resulted in twenty hours of imprisonment of a man ultimately not charged.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8972003. Public record. Not legal advice.