Gerstein v. Pugh, 420 U.S. 103 (1975)

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Two individuals being held in custody under an information (a formal criminal charge made by a prosecutor without a grand jury indictment) charging them with various state offenses brought a class action claiming they had a federal constitutional right to a judicial hearing to determine whether probable cause for their further detention existed.

The Fourth Amendment permits police officers to arrest an individual only when they have probable cause to believe that the individual is committing, or has committed, an offense (Beck v. Ohio). While the existence of probable cause generally must be determined by a neutral and detached judicial officer (Johnson v. United States, 333 U.S. 10, 1948), practical necessities require that police be allowed to make arrests based upon their assessment of probable cause. Accordingly, police do not need an arrest warrant to arrest an individual in a public place (United States v. Watson, 423 U.S. 411, 1976).

In Gerstein v. Pugh, however, the U.S. Supreme Court explained that once a person arrested without a warrant is in custody, the reasons justifying dispensing with a judge’s determination of probable cause evaporate, while the arrestee’s need for such a neutral determination increases significantly. It therefore held that the Fourth Amendment requires a judicial determination of probable cause, before or ‘‘promptly’’ after arrest, as a prerequisite for any extended restraint of liberty following arrest. Nevertheless, it further held that this determination need not be made in an adversary proceeding at which the arrestee has the right to counsel or the rights of Confrontation and Compulsory Process.


References and Further Reading

  • LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 4th ed., vol. 3. St. Paul, MN: Thomson– West, 2004, pp. 52–64.
  • LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure, 4th ed., St. Paul, MN: Thomson- West, 2004, pp. 176–177.
  • Winter, Stephen D., Probable Cause for Pretrial Detention: Does Gerstein v. Pugh Adequately Insure Its Existence? Golden Gate University Law Review 6 (1975): 1:139–178.

Cases and Statutes Cited

  • Beck v. Ohio, 379 U.S. 89 (1964)
  • Johnson v. United States, 333 U.S. 10 (1948)
  • United States v. Watson, 423 U.S. 411 (1976)

See also Arrest; Arrest without a Warrant; Incorporation Doctrine; Probable Cause; United States v. Watson, 423 U.S. 411 (1976)