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Is the 48-Hour Detainer Rule Constitutional?

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Recent developments from the administration of U.S. president Donald Trump and the GOP have highlighted the issue of immigration.

On the criminal law side, detainers are typically sought by Immigration and Customs Enforcement (ICE) agents when individuals without documentation are in custody.

Once the individuals case or cases are disposed – either by plea, dismissal, or other outcome – ICE agents then have the authority to come and pick them up; however, that power is limited.

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If the potential detainee is not picked up by ICE within 48 hours, they may be released.

According to a recent blog post on the N.C. Criminal Law Blog, some courts are beginning to question the authority of ICE to detain people in local authorities’ custody just when the president and the GOP seek to torque down immigration law. Guilford County, according to newspaper reports, does not honor the detainers on the grounds that they violate the 4th Amendment of the U.S. Constitution’s ban on unreasonable seizures.

ICE bucked up on some localities’ refusal to honor detainers, and began making a weekly report of criminal activity by released potential detainees, presumably to pressure localities to honor the detainers.

But a Massachusetts court ruled that there is no legal reason or authority to honor the detainers. According Jeff Welty, author of the Criminal Law blog post:

[t]he court of Massachusetts agreed [with those opposed to the detainers], focusing on the officers’ lack of authority. The court reasoned that holding a subject pursuant to a detainer is an arrest; that a detainer is not a warrant; that officers may make warrantless arrests only for a criminal defense; and a detainer, at most, alleges a civil violation, not a crime.

Other jurisdictions ruled have ruled against detainers, including Minnesota, the 1st Circuit U.S. Court of Appeals, and Texas.

Welty’s thorough and well-written post is well-worth further reading.

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At Garrett, Walker, Aycoth and Olson, our criminal defense attorneys are proud to represent those who are accused of a crime, whether or not they are detained. Contact us for a free consultation.