ARABIAN, J., Concurring and Dissenting. I concur in the lead opinion insofar as it requires prompt probable cause determinations for juveniles within 72 hours of warrantless arrest. (See lead opn., ante, this page.) I respectfully dissent, however, from the due process analysis by which the lead opinion reaches this conclusion. Petitioner does not dispute his postarrest detention on that basis; nor does he raise such a challenge to any provision of the juvenile court law governing wardship detentions in general (Welf. & Inst. Code, § 602 et seq.). Rather, he asserts that, like any adult in comparable circumstances, a detained minor is entitled to a probable cause determination of suspected criminal activity within 48 hours of a [1233]warrantless arrest as mandated by the United States Supreme Court’s‘decision in County of Riverside v. McLaughlin (1991) 500 U.S. 44 [114 L.Ed.2d 49, 111 S.Ct. 1661] (McLaughlin). As framed by petitioner, the only issue before us is whether the rule of McLaughlin applies to juveniles.1 Accordingly, we are constrained to refract his contentions solely through a Fourth Amendment prism, for that is the limited nature of the constitutional claim. (Cf. Gerstein v. Pugh (1975) 420 U.S. 103, 111 [43 L.Ed.2d 54, 63, 95 S.Ct. 854] [“Both the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common-law antecedents.”].) The specificity of the question demands an equally precise answer, not the due process circuity submitted in the lead opinion. (See, e.g., New Jersey v. T.L.O. (1985) 469 U.S. 325 [83 L.Ed.2d 720, 105 S.Ct. 733] [4th Amend, search and seizure claim].)
While I agree with Justice Mosk that we should pursue a Fourth Amendment tack in resolving this case, I conclude that for juvenile detainees a probable cause determination within 72 hours satisfies the constitutional mandate of “promptness.” I am unpersuaded McLaughlin, supra, 500 U.S. 44, is dispositive or controlling here. Factually, that case involved only adults. In assessing the protections afforded minors, the United States Supreme Court has consciously “refrained . . . from taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are to be imposed on the state juvenile proceeding.” (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545 [29 L.Ed.2d 647, 661, 91 S.Ct. 1976]; id., at p. 541 [29 L.Ed.2d at pp. 658-659].) Thus, I do not construe the holding in McLaughlin to extend perforce to juveniles simply because it does not expressly restrict its scope to adults. In my view, the issue warrants an independent examination, bearing in mind both the general nature of the Fourth Amendment guaranty with its rubric of reasonableness and the particularized concerns of the juvenile justice system. (403 U.S. at p. 545 [29 L.Ed.2d at p. 661]; cf. New Jersey v. T.L.O., supra, 469 U.S. at pp. 337-343 [83 L.Ed.2d at pp. 731-736].)
Since any official detention can adversely affect a minor as critically and undeniably as it does an adult, juveniles do have a protectible liberty interest [1234]with respect to such restraint, even though they are generally subject to greater restriction of their freedom by virtue of their minority. (Schall v. Martin, supra, 467 U.S. at p. 265 [81 L.Ed.2d at pp. 217-218].) Moreover, while juveniles do not ipso facto possess the same constitutional rights as adults (see, e.g., New Jersey v. T.L.O., supra, 469 U.S. at p. 342, fn. 8 [83 L.Ed.2d at p. 735]), it is now a settled proposition that the “promptness” requirement of Gerstein v. Pugh, supra, 420 U.S. at pages 111-116 [43 L.Ed.2d at pages 63-67], embraces all warrantless detentions regardless of the detainee’s age. (See, e.g., R.W.T. v. Dalton (8th Cir. 1983) 712 F.2d 1225, 1230; Moss v. Weaver (5th Cir. 1976) 525 F.2d 1258, 1259-1260.) The question remains, however, to quantify the mandate of Gerstein for juveniles as the United States Supreme Court has done for adults in McLaughlin, supra, 500 U.S. at page 56 [114 L.Ed.2d at page 63, 111 S.Ct. at page 1670]. Although we lack a direct answer, decisions of the high court provide some useful contours to the analytical framework.
In general, the juvenile context is highly relevant in determining whether and to what extent a particular constitutional principle applies to minors. (See, e.g., Schall v. Martin, supra, 467 U.S. at p. 265 [81 L.Ed.2d at pp. 217-218].) Depending upon the interest at stake, this circumstance may dictate that juveniles have rights coextensive with adults, may debar them entirely, or may necessitate some modification of rights. (See McKeiver v. Pennsylvania, supra, 403 U.S. at pp. 533-534 [29 L.Ed.2d at pp. 653-654].)
For example, in McKeiver v. Pennsylvania, supra, 403 U.S. 528, the Supreme Court declined to -extend the right of jury trial to juvenile adjudications. (Id.., at p. 545 [29 L.Ed.2d at p. 661].) In the court’s view, superimposing this requirement on such proceedings would not appreciably enhance the fact-finding process, while at the same time it would impair the laudatory, if not always successful, goals of the system. (Id., at pp. 547-550 [29 L.Ed.2d at pp. 662-664].) On the other hand, the court has ruled that minors are entitled to proof beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 368 [25 L.Ed.2d 368, 377-378, 90 S.Ct. 1068]) and the defense of double jeopardy (Breed v. Jones (1975) 421 U.S. 519, 531 [44 L.Ed.2d 346, 356, 95 S.Ct. 1779]) to the same extent these guaranties protect adults because “there is little to distinguish” between adjudications and criminal trials relative to the underlying constitutional principles. (Id., at p. 530 [44 L.Ed.2d at p. 356].) In each instance, the minimal infringement on the traditional informality of juvenile proceedings did not outweigh the substantial concerns of the minor in the fair determination of delinquency and a limitation on multiple hearings. (Id., at pp. 536-539 [44 L.Ed.2d at pp. 359-361]; In re Winship, supra, 397 U.S. at pp. 366-368 [25 L.Ed.2d at pp. 376-378].)
[1235]In other cases, the Supreme Court has sought to harmonize the protectible interests of minors with their correlative constitutional underpinnings. In the seminal case of In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428], it determined that a juvenile’s right to due process when taken into custody for suspected criminal activity included, inter alia, the privilege against self-incrimination. (Id., at p. 55 [18 L.Ed.2d at p. 561].) At the same time, the court acknowledged “that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well' be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents.” (Ibid.; see also id., at pp. 33-34 [18 L.Ed.2d at pp. 549-550] [due process requires notice of charges to juvenile’s parents as well as juvenile]; Haley v. Ohio (1948) 332 U.S. 596, 599-601 [92 L.Ed. 224, 228-229, 68 S.Ct. 302] [admissions and confessions of juveniles require special caution].)
In New Jersey v. T.L.O., supra, 469 U.S. 325, the court considered “what limits, if any, the Fourth Amendment places on the activities of school authorities” who search students. (469 U.S. at p. 332 [83 L.Ed.2d at p. 735].) Although schoolchildren have an expectation of privacy (id., at pp. 337-339 [83 L.Ed.2d at pp. 731-733]), the need to maintain order in the classroom “requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” (Id., at p. 340 [83 L.Ed.2d at p. 733].) Thus, in striking the balance of reasonableness, considerations unique to their particular circumstance qualified the scope of constitutional protection available to juveniles.
Regardless of its ultimate conclusion in these cases, the Supreme Court has continually emphasized in its analyses the need to maintain a measure of flexibility to accommodate the special attention with which our society still endeavors to treat youthful offenders. (See, e.g., New Jersey v. T.L.O., supra, 469 U.S. at p. 340 [83 L.Ed.2d at p. 733]; Breed v. Jones, supra, 421 U.S. at p. 540 [44 L.Ed.2d at pp. 361-362]; McKeiver v. Pennsylvania, supra, 403 U.S. at p. 547 [29 L.Ed.2d at p. 662].) I believe this concern to maximize individualized response is particularly relevant to the question of probable cause determinations because the detention of juveniles implicates additional considerations related to their minority. (See lead opn., ante, pp. 1219-1222.) It also segues with the explicit premise of the Fourth Amendment, which proscribes only “unreasonable” seizures. (Cf. New Jersey v. T.L.O., supra, 469 U.S. at pp. 340-341 [83 L.Ed.2d at pp. 733-734].)
These collateral matters do not necessarily preclude probable cause determinations within a shorter period; indeed, as both Justice Mosk and Justice George argue in their dissents, every effort should be made to minimize the [1236]period of detention at this juncture in the adjudicatory process. Nevertheless, they provide a rational basis on which to premise some latitude beyond the 48-hour limit delineated in McLaughlin. (Cf. Schall v. Martin, supra, 467 U.S. at pp. 265-266 [81 L.Ed.2d at pp. 217-218].) Moreover, even with respect to adult detentions, the Supreme Court has reiterated that “probable cause determinations must be prompt—not immediate” to maintain a necessary measure of “ ‘flexibility’ and ‘experimentation’ ” within each state’s criminal justice system. (McLaughlin, supra, 500 U.S. at p. 54 [114 L.Ed.2d at pp. 61-62, 111 S.Ct. at p. 1669]; see Gerstein v. Pugh, supra, 420 U.S. at p. 123 [420 L.Ed.2d at pp. 71-72].) These latter considerations are all the more significant in the juvenile justice system, which seeks to provide intervention and rehabilitation, not simply punishment. (See, e.g., Welf. & Inst. Code, §§ 626, 626.5, 628, 628.1.)
I therefore conclude that under the Fourth Amendment the circumstances of a juvenile differ sufficiently from those of an adult that the “promptness” requirement of Gerstein v. Pugh, supra, 420 U.S. 103, is satisfied if a juvenile detainee is provided a probable cause determination within 72 hours following a warrantless arrest with no extension of time for nonjudicial days. (Cf. McLaughlin, supra, 500 U.S. at p. 58 [114 L.Ed.2d at p. 64, 111 S.Ct. at p. 1671] [“Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly.”].)
MOSK, J. I dissent.
The Fourth Amendment to the United States Constitution—one of the core provisions of the Bill of Rights—declares: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”1
In Gerstein v. Pugh (1975) 420 U.S. 103, 111-116, 123-125 [43 L.Ed.2d 54, 63-67, 70-72, 95 S.Ct. 854] (hereafter sometimes Gerstein), the United States Supreme Court held that the Fourth Amendment mandates, as a prerequisite to extended restraint of liberty, a prompt judicial determination that there is probable cause to believe that a person has in fact committed a criminal offense following a warrantless arrest based on suspicion thereof.
[1237]In County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56 [114 L.Ed.2d 49, 63-64, 111 S.Ct. 1661, 1670] (hereafter sometimes McLaughlin), the court defined “promptness” under Gerstein as generally within 48 hours of the warrantless arrest.
Thus, under the Fourth Amendment as construed by Gerstein and McLaughlin, a law-abiding person wrongfully arrested without a warrant is guaranteed his freedom within about 48 hours.
Today, a majority of this court refuse to honor that guaranty when the person in question happens to be a juvenile.
I cannot join in such a breach of our constitutional obligation.
I
On July 25, 1991, petitioner Alfredo A. submitted a petition for writ of habeas corpus to the Court of Appeal for the Second Appellate District. His allegations were to the following effect.
On July 24, 1991, petitioner, who was then 16 years of age, was arrested in Los Angeles without a warrant for possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) He was placed in the custody of the probation department in juvenile hall. He was, or would soon be, restrained of his liberty in violation of the Fourth Amendment without a prompt judicial probable cause determination within 48 hours of his warrantless arrest, as required by Gerstein and McLaughlin. As a general matter, the juvenile court law (Welf. & Inst. Code, § 200 et seq.) does not mandate such a determination for a juvenile. It does, however, specify a formal, adversarial probable cause or “detention” hearing as many as seven days after a juvenile’s warrantless arrest. (Id., § 632 et seq.) The superior court sitting as the juvenile court had earlier adopted as its “official position”—in accordance with a requested opinion by the county counsel based on Scholl v. Martin (1984) 467 U.S. 253 [81 L.Ed.2d 207, 104 S.Ct. 2403] (hereafter sometimes Schall)—that Gerstein's promptness requirement, at least as defined by McLaughlin, is not applicable to juveniles.
Through these allegations, petitioner effectively made a “systemic” Fourth Amendment challenge to the superior court’s “official position.” In his prayer for relief, he sought immediate release from custody or an immediate judicial probable cause determination.
On July 26, 1991, Division Three of the Court of Appeal for the Second Appellate District caused its clerk to issue an order (1) deeming petitioner’s [1238]submission to be a petition for writ of mandate against the superior court and (2) directing that court to show cause why a peremptory writ of mandate should not issue compelling it to comply with Gerstein's promptness requirement, as defined by McLaughlin, with regard to juveniles as well as adults. The superior court subsequently filed opposition as respondent.
Also on July 26, 1991, the People submitted a petition to the juvenile court to declare petitioner a ward of the court. (Welf. & Inst. Code, § 602.) They alleged that he came within its jurisdiction on the ground that on July 24, 1991, he was in possession of cocaine (Health & Saf. Code, § 11351) and cocaine base (id., § 11351.5) for sale.
On July 29, 1991, petitioner was brought to the juvenile court and released from custody, apparently because the probation department had not submitted a detention report. He waived time for arraignment. The matter was then continued to August 19, 1991. Further proceedings, if any, are not reflected in the record.
On December 5, 1991, rejecting petitioner’s systemic Fourth Amendment challenge to the superior court’s “official position,” the Court of Appeal denied his petition. At the outset, it determined that the issue presented, even though moot as to petitioner because of his release from custody, remained suitable for resolution because, in words it quoted from Gerstein, .the underlying question was “ ‘capable of repetition, yet evading review.’ ” (Gerstein v. Pugh, supra, 420 U.S. at p. 110, fn. 11 [43 L.Ed.2d at p. 63].) It then set out to answer the question posed, viz., whether the superior court’s “official position” is contrary to the Fourth Amendment as construed by Gerstein and McLaughlin, by addressing a question not posed, viz., whether the juvenile court law is compatible with “fundamental fairness” under the Fourteenth Amendment’s due process clause as interpreted in Schall. It purported to hold that the superior court’s “official position” did not offend the Fourth Amendment.
On January 8, 1992, petitioner filed a petition for review. On February 20, 1992, we granted his request in order to determine whether Gerstein’s promptness requirement is applicable to juveniles and, if so, whether McLaughlin's definition of “promptness” operates in this setting. On May "4, 1993, we handed down our original “decision,” which comprised four opinions, none commanding more than three votes. On July 15, 1993, we ordered rehearing on our own motion.
II
Before the issue on which this court granted review may properly be resolved, its suitability of resolution must be addressed. Little discussion is
[1239]called for. In fact, the words the Court of Appeal quoted from Gerstein are sufficient: the point is “‘capable of repetition, yet evading review.’ ” (Gerstein v. Pugh, supra, 420 U.S. at p. 110, fn. 11 [43 L.Ed.2d at p. 63].) As the Gerstein court explained: “Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures.” (Ibid.)
Ill
The question before the court is bipartite. Is Gerstein's promptness requirement applicable to juveniles? If so, does McLaughlin's definition of “promptness” operate in this setting?
A
In Gerstein, the United States Supreme Court held that the Fourth Amendment mandates a prompt judicial probable cause determination as a prerequisite to extended restraint of liberty following a warrantless arrest. (Gerstein v. Pugh, supra, 420 U.S. at pp. 111-116, 123-125 [43 L.Ed.2d at pp. 63-67, 70-72].)
In reaching this conclusion, the Gerstein court sought to reconcile or at least accommodate an individual’s Fourth Amendment rights and the state’s legitimate interest in law enforcement. (Gerstein v. Pugh, supra, 420 U.S. at pp. 111-113 [43 L.Ed.2d at pp. 63-65].)
Under what the Gerstein court called its “practical compromise,” “a policeman’s on-the-scene assessment of probable cause provides legal justification 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. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. [Citations.] Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of [1240]liberty. [Citation.] When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection ffom unfounded interference with liberty." (Gerstein v. Pugh, supra, 420 U.S. at pp. 113-114 [43 L.Ed.2d at pp. 64-65].)
Thus, the Gerstein court made plain that the prompt judicial probable cause determination mandated by the Fourth Amendment must be “prompt” in terms of the time that is required for the state “to take the administrative steps incident to arrest” (Gerstein v. Pugh, supra, 420 U.S. at p. 114 [43 L.Ed.2d at p. 64]), such as booking, photographing, and fingerprinting (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 59 [114 L.Ed.2d at p. 64, 111 S.Ct. at p. 1671]).
The Gerstein court also made plain that this prompt judicial probable cause determination does not require the “full panoply of adversary safeguards" of “counsel, confrontation, cross-examination, and compulsory process . . . .” (Gerstein v. Pugh, supra, 420 U.S. at p. 119 [43 L.Ed.2d at p. 68].) Rather, “a nonadversary proceeding [based] on hearsay and written testimony” is sufficient. (Id. at p. 120 [43 L.Ed.2d at p. 69].) “The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard— probable cause to believe the suspect has committed a crime—traditionally has been decided by a magistrate in a nonadversary proceeding ón hearsay and written testimony . . . ." (Ibid., fn. omitted.) The court noted: “Because the standards [for arrest and detention] are identical, ordinarily there is no need, for further investigation before the probable cause determination can be made.” (Id. at p. 120, fn. 21 [43 L.Ed.2d at p. 64].)
The Gerstein court “recognize[d] that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole.” (Gerstein v. Pugh, supra, 420 U.S. at p. 123 [43 L.Ed.2d at p. 71].) It also “recognize[d] the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect’s first appearance before a judicial officer, [citation], or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment . . . .” (Id. at pp. 123-124 [43 L.Ed.2d at p. 71], fn. omitted.) But it declared: “Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant [1241]pretrial restraint of liberty, and this determination must be made by a judicial officer . . . promptly after arrest” when the arrest itself is made without a warrant. (Id. at pp. 124-125 [43 L.Ed.2d at pp. 71-72], fn. omitted.)
B
In McLaughlin, the United States Supreme Court undertook to define “promptness” under Gerstein. (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 47 [114 L.Ed.2d at p. 57, 111 S.Ct. at p. 1665].) The facts there are similar to those here. At issue was Riverside County’s policy of combining judicial probable cause determinations with its arraignment procedures, which resulted in a delay of as many as seven days after a person’s warrantless arrest. The Courts of Appeals were in conflict as to the meaning of “promptness.” The Fourth, Seventh, and Ninth Circuits declared or suggested that a judicial probable cause determination is “prompt” only if it is provided immediately after the state has “take[n] the administrative steps incident to arrest” (Gerstein v. Pugh, supra, 420 U.S. at p. 114 [43 L.Ed.2d at p. 65]); see also Fisher v. Washington Metro. Area Transit Authority (4th Cir. 1982) 690 F.2d 1133, 1139-1140; Llaguno v. Mingey (7th Cir. 1985) 763 F.2d 1560, 1567-1568 (in bank)', McLaughlin v. County of Riverside (9th Cir. 1989) 888 F.2d 1276, 1278, vacated sub nom. County of Riverside v. McLaughlin, supra, 500 U.S. 44.) The Second Circuit held against the requirement of “immediacy.” (See Williams v. Ward (2d Cir. 1988) 845 F.2d 374, 385-386.)
The McLaughlin court adhered to, and indeed reaffirmed, the holding of Gerstein that the Fourth Amendment mandates a prompt judicial probable cause determination as a prerequisite to extended restraint of liberty following a warrantless arrest. (County of Riverside v. McLaughlin, supra, 500 U.S. at pp. 50-56 [114 L.Ed.2d at pp. 59-62, 111 S.Ct. at pp. 1667-1669].)
The McLaughlin court also remained faithful to Gerstein’s view that “promptness” must be measured in terms of the time that is required for the state “to take the administrative steps incident to arrest” (Gerstein v. Pugh, supra, 420 U.S. at p. 114 [43 L.Ed.2d at p. 65]). (See County of Riverside v. McLaughlin, supra, 500 U.S. at p. 59 [114 L.Ed.2d at p. 64, 111 S.Ct. at p. 1671].) In its own words: “Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process—such as bail hearings and arraignments—may be chosen.” (Id. at p. 58 [114 L.Ed.2d at p. 64, 111 S.Ct. at p. 1671].) The reason is plain. To allow “promptness” to be defined with [1242]reference to other “steps” that a state might desire to “take” beyond those “incident to arrest”—for example, the holding of a preliminary examination —would render the requirement nugatory. A federal constitutional mandate that is designed to constrain the states cannot be dependent on the individual policy choices that any given state might happen to make.
All the same, the McLaughlin court recognized that the bare mandate of a “prompt” judicial probable cause determination had proved inadequate. It stated: “Unfortunately, as lower court decisions applying Gerstein have demonstrated, it is not enough to say that probable cause determinations must be ‘prompt.’ This vague standard simply has not provided sufficient guidance. Instead, it has led to a flurry of systemic challenges to city and county practices, putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations.” (County of Riverside v. McLaughlin, supra, 500 U.S. at pp. 55-56 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669].)
The McLaughlin court declined to hold that a judicial probable cause determination is “prompt” only if it is provided immediately after the state has “take[n] the administrative steps incident to arrest” (Gerstein v. Pugh, supra, 420 U.S. at p. 114 [43 L.Ed.2d at p. 65]). It stated: “Taking into account the competing interests articulated in Gerstein, we believe 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. For this reason, such jurisdictions will be immune from systemic challenges.” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 56 [114 L.Ed.2d at p. 63, 111 S.Ct. at p. 1670].)
The McLaughlin court then added: “This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing[2] may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably.” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 56 [114 L.Ed.2d at p. 63, 111 S.Ct. at p. 1670].) But “[w]here an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the
[1243]existence of a bona fide emergency or other extraordinary circumstance. The 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 p. 57 [114 L.Ed.2d at p. 63, 111 S.Ct. at p. 1670].)
It must be noted that McLaughlin was not a unanimous decision. In a dissenting opinion in which Justice Blackmun and Justice Stevens joined, Justice Marshall would have defined “promptness” under Gerstein to incorporate the “immediacy” requirement, i.e., a judicial probable cause determination is “prompt” only if it is provided immediately after the state has “take[n] the administrative steps incident to arrest” (Gerstein v. Pugh, supra, 420 U.S. at p. 114 [43 L.Ed.2d at p. 65]. (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 59 [114 L.Ed.2d at p. 64, 111 S.Ct. at p. 1671] (dis. opn. of Marshall, J.).) In a separate dissenting opinion, Justice Scalia would have adopted a similar definition. (Id. at pp. 59-68 [114 L.Ed.2d at pp. 65-70, 111 S.Ct. at pp. 1672-1675] (dis. opn. of Scalia, J.).) He would also have rejected the court’s “outer time limit” of 48 hours in favor of a line drawn at “certainly no more than 24 hours.” (Id. at pp. 67-68 [114 L.Ed.2d at p. 70, 111 S.Ct. at p. 1676] (dis. opn. of Scalia, J.).)3
IV
As stated above, the question before this court is whether Gerstein’s promptness requirement is applicable to juveniles and, if so, whether McLaughlin's definition of “promptness” operates in this setting.
A
The first issue is the applicability of Gerstein’s promptness requirement to juveniles.
Gerstein declares, both expressly and impliedly, from beginning to end, that the Fourth Amendment’s protection extends to “persons” or “individuals.” It does not purport to limit the constitutional guaranty to adults or even to qualify its benefit to juveniles.
[1244]I find no reason within Gerstein’s four corners to cabin its conclusion. The Gerstein court did not itself choose to restrict the scope of the requirement that it established. I decline to do what it did not.
Neither do I discern outside Gerstein any ground to delimit its holding.
It was firmly established almost a decade before Gerstein was handed down that “the Bill of Rights is [not] for adults alone.” (In re Gault (1967) 387 U.S. 1, 13 [18 L.Ed.2d 527, 538, 87 S.Ct. 1428].)
Indeed, this court itself has expressly held that among the rights of the United States Constitution to which juveniles are entitled “is the guarantee of freedom from unreasonable searches and seizures contained in the Fourth Amendment . . . .” (In re William G. (1985) 40 Cal.3d 550, 557 [221 Cal.Rptr. 118, 709 P.2d 1287]; accord, e.g., People v. Chard (Colo. 1991) 808 P.2d 351, 353 [holding that the “constitutional guarantees” to which juveniles are entitled include “protection from unreasonable searches and seizures under the fourth amendment”]; In re Fingerprinting of Juvenile (1989) 42 Ohio St.3d 124, 126 [537 N.E.2d 1286, 1287] [stating that “it is well-settled that a juvenile is as entitled as an adult to the constitutional protections of the Fourth Amendment”]; Roberts v. Mills (1981) 290 Ore. 441, 444 [622 P.2d 1094, 1097] [holding in substance that the Fourth Amendment covers juveniles as well as adults].)
To be sure, the particular commands and prohibitions of the Fourth Amendment may vary in some respects for adults and juveniles. The basic criterion of the constitutional provision is, of course, “reasonableness.” (E.g., Florida v. Jimeno (1991) 500 U.S. 248, 250 [114 L.Ed.2d 297, 302, 111 S.Ct. 1801, 1803] [“The touchstone of the Fourth Amendment is reasonableness.”].)
Whatever differentiation may be justified in some areas for adults and juveniles under the Fourth Amendment is not justified here. In McLaughlin, the court predicated Gerstein’s promptness requirement on the proposition that “[a] State has no legitimate interest in detaining for extended periods individuals who have been arrested without probable cause.” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 55 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669].) This applies to all individuals—whether or not they have attained the age of majority. When probable cause is lacking, detention is unsupported as a matter of law. That proposition does not depend on how old the detainee is. The presence of youth does not make up for the absence of probable cause.
I recognize that the state, as parens patriae, may have a legitimate interest in detaining a juvenile for criminal activity prior to trial. That interest, [1245]however, is not served by holding Gerstein's promptness requirement inapplicable. Without question, an adult arrested without probable cause must be released as soon as reasonably possible. The reason: grounds for detention are lacking. So too, a juvenile arrested without probable cause must be released as soon as reasonably possible. The reason is the same. Absent probable cause, the state’s exercise of its power to preserve and promote the welfare of the child is without support. For juveniles as for adults, Gerstein's promptness requirement operates to conserve and allocate resources by limiting the class of detainees to those who are properly subject to detention. Of course, the state, as parens patriae, may have a legitimate interest in detaining a juvenile for reasons unrelated to criminal activity. But no such interest is implicated here.
I also recognize that, in detaining a juvenile for criminal activity prior to trial, the state may use means and/or facilities different from those it uses for adults. That fact, however, is not determinative. It simply cannot be said that the restraint of liberty imposed on a juvenile is somehow less significant, in and of itself, than that imposed on an adult. Indeed, “[p]retrial detention is an onerous experience, especially for juveniles . . . .” (Moss v. Weaver (5th Cir. 1976) 525 F.2d 1258, 1260, italics added; see In re William M. (1970) 3 Cal.3d 16, 30-31 [89 Cal.Rptr. 33, 473 P.2d 737] [to similar effect].)
Moreover, it appears that since Gerstein was decided, all reported decisions that have considered the question to resolution have held or stated, expressly or impliedly, that Gerstein is applicable to all “persons” or “individuals,” juveniles as well as adults. (See, e.g., R.W.T. v. Dalton (8th Cir. 1983) 712 F.2d 1225, 1230 [holding that under Gerstein, “juveniles who are detained because they are suspected of committing criminal acts must be afforded a prompt probable-cause hearing”—thereby deciding a question left open in United States v. Allen (8th Cir. 1978) 574 F.2d 435, 439 & fn. 11]; Moss v. Weaver, supra, 525 F.2d at pp. 1259-1260 [holding that Gerstein's promptness requirement is applicable to juveniles]; JV-114246 v. Superior Court (Ct.App. 1988) 159 Ariz. 357, 358 [767 P. 2d 705] [same], following Bell v. Superior Court in & for Cty. of Pima (1977) 117 Ariz. 551, 553-554 [574 P. 2d 39] [same]; J.T. v. O’Rourke in and for the Tenth Jud. Dist. (Colo. 1982) 651 P.2d 407, 409 [holding that under Gerstein, “a juvenile who is detained is entitled to a preliminary [probable cause] hearing by constitutional mandate”]; Roberts v. Mills, supra, 290 Ore. at p. 444 [622 P.2d at p. 1097] [holding in substance that Gerstein’s promptness requirement is applicable to juveniles].)
Therefore, I conclude that Gerstein's promptness requirement is indeed applicable to juveniles.
[1246]B
The second issue is whether McLaughlin’s definition of “promptness” operates in the juvenile setting.
McLaughlin declares, both expressly and impliedly, from beginning to end, that its definition of “promptness” extends to “probable cause determinations” generally. It does not purport to limit its scope to adults or even to qualify its meaning for juveniles.
I do not see in McLaughlin itself any basis to restrict its definition of “promptness” against juveniles. Quite the contrary. The reasoning of the McLaughlin court is premised on an assessment that the “undefined” promptness requirement of Gerstein is simply too “vague” a “standard.” (County of Riverside v. McLaughlin, supra, 500 U.S. at pp. 55-56 [114 L.Ed.2d at pp. 61-62, 111 S.Ct. at p. 1669].) That assessment holds as true for juvenile proceedings relating to minors as for criminal actions involving adults. Perhaps truer. For if “it is not enough to say that probable cause determinations must be ‘prompt’ ” for criminal actions (id. at pp. 55-56 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669]), which are governed by a procedural law that is relatively well defined, a fortiori it is not nearly enough for juvenile proceedings, which are guided by norms of another sort. Similarly, if the “undefined” promptness requirement has already “led to a flurry of systemic challenges to city and county practices [in criminal actions], putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations” (id. at p. 56 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669]), it will surely lead to like challenges in juvenile proceedings—of which the present is, apparently, only the first—involving the state judiciary as well as the federal in matters that belong largely to the other branches of government.
Neither do I discover any support outside McLaughlin to condition its definition of “promptness” against juveniles. As stated, juveniles as well as adults are entitled to the protections of the Fourth Amendment. As also stated, the basic criterion of the constitutional provision is “reasonableness.” The definition articulated by the McLaughlin court serves to give content to this test. No reason appears to deny its benefit to juveniles. Unquestionably, “it is not enough to say that probable cause determinations must be ‘prompt’ ” (County of Riverside v. McLaughlin, supra, 500 U.S. at pp. 55-56 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669]) when the state acts as enforcer of the criminal law for the sake of the community generally. The same is true when the state acts as parens patriae for the benefit of the child. The word “prompt” is no less “vague” in the latter situation than in the former. As noted, under the Fourth Amendment as construed by Gerstein and McLaughlin, a law-abiding person wrongfully arrested without a warrant is guaranteed [1247]his freedom within about 48 hours. It would be unreasonable to hold that when the person in question happens to be a juvenile, the guaranty is illusory.
Therefore, I conclude that McLaughlin's definition of “promptness” does in fact operate in the juvenile setting.
C
In conducting my analysis, I have not overlooked Schall v. Martin, supra, 467 U.S. 253, which was decided nine years after Gerstein and seven years before McLaughlin.
In Schall, the United States Supreme Court held that a section of the New York Family Court Act was not invalid under the due process clause of the Fourteenth Amendment. (Schall v. Martin, supra, 467 U.S. at pp. 256-257, 263-281 [81 L.Ed,2d at pp. 211-212, 217-228].) The provision in question authorized court-ordered “preventive detention” of a juvenile accused of delinquency, i.e., pretrial detention based on a judicial finding that there is a “serious risk” that the juvenile “ ‘may before the return date commit an act which if committed by an adult would constitute a crime.’ ” (Id. at p. 255 [81 L.Ed.2d at p. 211].) The court expressly noted that the propriety of detention based on a warrantless arrest was “not at issue”: the sole question concerned “judicially ordered detention.” (Id. at p. 258, fn. 5 [81 L.Ed.2d at p. 213], italics added.)
In scrutinizing the New York statutory scheme, the Schall court asked whether the authorization of court-ordered preventive detention was compatible with “fundamental fairness” under the Fourteenth Amendment’s due process clause. (Schall v. Martin, supra, 467 U.S. at p. 263 [81 L.Ed.2d at p. 216].) It identified two subsidiary inquiries. First, did court-ordered preventive detention under the statutory provision serve a legitimate state objective? (Id. at pp. 263-264 [81 L.Ed.2d at pp. 216-217].) Second, were the procedural safeguards contained therein adequate against erroneous and unnecessary restraints of liberty? (Id. at p. 264 [81 L.Ed.2d at p. 217].)
At the outset, the Schall court observed: “There is no doubt that the Due Process Clause is applicable in juvenile proceedings. ‘The problem . . . is to ascertain the precise impact of the due process requirement upon such proceedings.’ ” (Schall v. Martin, supra, 467 U.S. at p. 263 [81 L.Ed.2d at p. 216].) It went on: “[C]ertain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. [Citations.] But the Constitution does not mandate elimination of all differences in the treatment of [1248]juveniles. [Citation.] The State has ‘a parens patriae interest in preserving and promoting the welfare of the child,’ [citation], which makes a juvenile proceeding fundamentally different from an adult criminal trial.” (Ibid.) In view thereof, it had “tried ... to strike a balance—to respect the ‘informality’ and ‘flexibility’ that characterize juvenile proceedings, [citation], and yet to ensure that such proceedings comport with the ‘fundamental fairness’ demanded by the Due Process Clause.” (Ibid.)
The Schall court concluded that the New York statutory scheme with its authorization of court-ordered preventive detention was indeed compatible with “fundamental fairness” under the Fourteenth Amendment’s due process clause. It did so because it answered each of the two subsidiary inquiries in the affirmative.
First, the Schall court held that court-ordered preventive detention under the New York statutory scheme served the legitimate state objective of protecting both society and the juvenile from the hazards of pretrial crime. (Schall v. Martin, supra, 467 U.S. at pp. 264-274 [81 L.Ed.2d at pp. 217-223].) On this point, it explained that in aiming at such protection, the state undertook to act as enforcer of the criminal law for the sake of the community generally and also as parens patriae for the benefit of the child. (Id. at pp. 264-266 [81 L.Ed.2d at pp. 217-218].)
Second, the Schall court held that the procedural safeguards contained in the New York statutory scheme were adequate against erroneous and unnecessary restraints of liberty. (Schall v. Martin, supra, 467 U.S. at pp. 274-281 [81 L.Ed.2d at pp. 223-228].) In this regard, it observed that under both the Fourth Amendment as construed by Gerstein and the Fourteenth Amendment’s due process clause as interpreted in various decisions involving juvenile proceedings, there was a common concern with “flexibility” and “informality.” (Id. at p. 275 [81 L.Ed.2d at p. 224].) It indicated that Gerstein had found certain “flexible procedures,” which included a formal, adversarial probable cause hearing within five days of a warrantless arrest, to be adequate for the Fourth Amendment. (Id. at p. 277 & fn. 28 [81 L.Ed.2d at p. 225].) It made clear that it found similar procedures under the New York statutory scheme, which included a formal, adversarial probable cause hearing within at most nine days of a warrantless arrest, to be sufficient for the Fourteenth Amendment’s due process clause.
After even brief consideration, it becomes plain that Schall does not affect the conclusion that Gerstein’’s promptness requirement is indeed applicable to juveniles and that McLaughlin’s definition of “promptness” does in fact operate in this setting.
[1249]“It is axiomatic,” of course, “that cases are not authority for propositions not considered.” (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580]; accord, McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38 [4 Cal.Rptr. 176, 351 P.2d 344].)
To begin with, Schall is based on the Fourteenth Amendment’s due process clause. Gerstein and McLaughlin, by contrast, rest on the Fourth Amendment. Indeed, the Schall court effectively declared that its reach did not extend to the Fourth Amendment question presented here when it expressly noted that it was solely concerned with “judicially ordered detention.” (Schall v. Martin, supra, 467 U.S. at p. 258, fn. 5 [81 L.Ed.2d at p. 213] italics added.) Moreover, the Schall court referred only to formal, adversarial probable cause hearings, and not to the informal, nonadversarial judicial probable cause determinations discussed in Gerstein and McLaughlin. Lastly, and perhaps most important, the Schall court dealt with a situation in which the juvenile was already detained pursuant to court order—unlike the situation here, where he was not.
To be sure, at one point in its opinion the Schall court stated: “In Gerstein . . . , we held that a judicial determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime.” (Schall v. Martin, supra, 461 U.S. at pp. 274-275 [81 L.Ed.2d at p. 224], italics added to “adult.”) And at another point: “In many respects, the [New York statutory scheme] provides far more predetention protection for juveniles than we found to be constitutionally required for a probable-cause determination for adults in Gerstein.” (Id. at p. 275 [81 L.Ed.2d at p. 224], italics added to “adults.”)
The Schall court’s dicta, isolated and irrelevant as they are, cannot reasonably be read as an after-the-fact attempt to limit Gerstein to adults, but must be viewed merely as a reflection of the general factual context out of which Gerstein arose. Indeed, it appears that no reported decision—with the singular exception of the opinion of the Court of Appeal below—has construed these words to impose such a limitation. This is certainly true of McLaughlin. In that case, the court could easily have used this language, which was cited by the parties and amici curiae therein, to limit Gerstein to adults. Conspicuously, it did not do so.
It can perhaps be argued that there is tension between Schall and McLaughlin. The former implies that a formal, adversarial probable cause hearing within at most nine days of the warrantless arrest of a juvenile who is already in court-ordered preventive detention suffices for the Fourteenth Amendment’s due process clause. By contrast, the latter holds that a judicial [1250]probable cause determination, albeit informal and nonadversarial, is required by the Fourth Amendment generally within 48 hours of a warrantless arrest.
Any such tension, however, must necessarily be resolved in favor of the later-decided McLaughlin and against the earlier-decided Schall. By its terms, the Schall implication depends on Gerstein’s “undefined” promptness requirement and Gerstein’s consequent approval of a delay of five days between a warrantless arrest and a formal, adversarial probable cause hearing. The McLaughlin holding, however, expressly defines “promptness” as generally within 48 hours and thereby withdraws approval of a 5-day delay. Therefore, the Schall implication simply does not survive the McLaughlin holding.
In conducting my analysis, I have also not overlooked Reno v. Flores (1993) 507 U.S. _ [123 L.Ed.2d 1, 113 S.Ct. 1439] (hereafter Flores).
In Flores, the United States Supreme Court rejected a constitutional challenge, based solely on the due process clause of the Fifth Amendment, to an Immigration and Naturalization Service regulation governing the detention of allegedly deportable alien juveniles. It cited Schall. But it did not even allude to the Fourth Amendment, less still Gerstein or McLaughlin. That, of course, is not surprising. It appears that deportable aliens are not even within the protection of the Fourth Amendment. In United States v. Verdugo-Urquidez (1990) 494 U.S. 259, 265 [108 L.Ed.2d 222, 232-233, 110 S.Ct. 1056], the court stated, albeit only in dictum, that “ ‘the people’ protected by the Fourth Amendment. . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community”— among whom deportable aliens do not seem to number.
Since a case, like Schall, is not authority for a proposition it did not consider, a fortiori, a case, like Flores, cannot be authority for a proposition it could not have considered.
V
Like the Court of Appeal below, the lead opinion sets out to answer the question posed—viz., whether the superior court’s “official position” that Gerstein’s promptness requirement, at least as defined by McLaughlin, is not applicable to juveniles, is contrary to the Fourth Amendment as construed by those decisions—by addressing a question not posed—viz., whether the juvenile court law is compatible with “fundamental fairness” under the Fourteenth Amendment’s due process clause as interpreted in Schall. The [1251]fatal flaw of such analysis is evident: it is altogether nonresponsive. The lead opinion may just as well have attempted to determine whether the superior court’s “official position” is contrary to the Fourth Amendment by considering whether the juvenile court law violates the Eighth Amendment’s prohibition against cruel and unusual punishments.
Perhaps the lead opinion means to declare that whether and to what extent the Fourth Amendment is applicable to juveniles in the juvenile setting somehow implicates the due process clause of the Fourteenth Amendment. No reason or authority is presented in support of such a proposition. None is evident. The coverage of the Fourth Amendment, of course, is determined by the Fourth Amendment. True, the guaranty of due process protects those who have not attained the age of majority. But it protects as well those who have.
The lead opinion is much taken with Schall. Too much so.
The lead opinion implies that Schall is “authoritative” on the Fourth Amendment standards governing the detention of juveniles. But at most, it is such only as to court-ordered preventive detention. Detention of that sort, however, is not what is involved here. The lead opinion attempts to avoid the limited scope of Schall. But it trips on the opinion’s very words: the propriety of detention based on a warrantless arrest was “not at issue”; the sole question concerned “judicially ordered detention.” (Schall v. Martin, supra, 467 U.S. at p. 258, fn. 5 [81 L.Ed.2d at p. 213], italics added.)
The lead opinion also implies that Schall requires examination of “all the procedural components” of the juvenile court law because Schall itself examined “all the procedural components” of the New York Family Court Act. (Lead opn., ante, at p. 1226.) That is not so. Schall's consideration of the New York statute was dictated solely by the fact that, in that case, the statute had been challenged as invalid under the due process clause of the Fourteenth Amendment. The juvenile court law is not challenged here at all.
Lastly, the lead opinion assumes that the “authority” of Schall is unaffected by McLaughlin. But, as explained, in part relevant here the earlier-decided Schall does not even survive the later-decided McLaughlin.
The lead opinion then suggests that Gerstein’s promptness requirement, at least as defined by McLaughlin, is inapplicable to juveniles because in juvenile proceedings the state assertedly acts as parens patriae to preserve and promote the welfare of the child, whereas in criminal actions it acts as enforcer of the criminal law to mete out punishment.
[1252]Even if the lead opinion’s premise is sound, its conclusion is simply incorrect. Whenever the state predicates detention on criminal activity—in whatever proceeding, under whatever role, or for whatever objective— probable cause is crucial for Fourth Amendment purposes. And whenever probable cause is crucial, Gerstein's promptness requirement, as defined by McLaughlin, is applicable. A prompt judicial probable cause determination generally within 48 hours of a juvenile’s warrantless arrest—a determination that may be informal and nonadversarial—is altogether consistent with the juvenile court law, the goals of which include the expeditious resolution of issues in a relatively open and cooperative setting.
I recognize that under the juvenile court law, the state may detain a juvenile for reasons unrelated to criminal activity —although only in a separate nonsecure facility segregated from those suspected of crime (Welf. & Inst. Code, § 206)—as when the minor appears in public suffering from a sickness or injury that requires care (id., § 305, subd. (d)). In such a situation, Gerstein and McLaughlin are not implicated by their very terms. But such a situation does not obtain here.
In a word, when the state detains a person for criminal activity, it must establish probable cause. It is now settled that “[a] State has no legitimate interest in detaining . . . individuals who have been arrested without probable cause” generally beyond 48 hours. (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 55 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669], italics added.) It is inconceivable that a “legitimate interest” could somehow spring into being when the individual in question turns out to be a juvenile.
The lead opinion also suggests that Gerstein's promptness requirement, at least as defined by McLaughlin, is inapplicable to juveniles because their interest in freedom from restraint of liberty under the Fourth Amendment is assertedly less substantial than that of adults. But as stated, the basic criterion of the constitutional provision is “reasonableness.” Extended restraint for a criminal offense in the absence of probable cause is no more reasonable for juveniles than adults. Arguably less so. In California at least, adults generally have the right to release on bail. (See Cal. Const., art. I, § 12; Pen. Code, § 1268 et seq.) Juveniles do not. (Aubry v. Gadbois (1975) 50 Cal.App.3d 470, 471-475 [123 Cal.Rptr. 365] (per Kaus, P. J.) [rejecting claims substantially based on, among other provisions, Cal. Const., art. I, § 12, and Pen. Code, § 1268 et seq.].) “[Detaining . . . individuals who have been arrested without probable cause” beyond 48 hours is presumptively unreasonable. (County of Riverside v. McLaughlin, supra, 500 U.S. at pp. 55-56 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669].) It is unexplained how the individual’s status as a juvenile can change the rule.
[1253]Similarly, the lead opinion suggests that Gerstein’s promptness requirement, at least as defined by McLaughlin, is inapplicable to juveniles because restraint of liberty under the juvenile court law is assertedly more limited than restraint of liberty under the criminal law. But what matters for Gerstein and McLaughlin is the fact of restraint and not its character. Indeed, as the Gerstein court itself observed, “Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty.” (Gerstein v. Pugh, supra, 420 U.S. at p. 114 [43 L.Ed.2d at p. 65], italics added.)
Most prominently, I believe, the lead opinion suggests that Gerstein’s promptness requirement, at least as defined by McLaughlin, is inapplicable to juveniles because the juvenile court law assertedly has more “procedural safeguards” than the criminal law. The short answer is that none of these “protections” even purports to be an equivalent for a prompt judicial probable cause determination. Indeed, the provisions cited by the lead opinion generally relate to the disposition of the detained juvenile within the juvenile system. They do not primarily concern whether the juvenile ought to have been detained within the system in the first place. That is the function of a prompt judicial probable cause determination. The cited “procedural safeguards” “protect” the juvenile who has been arrested without probable cause in much the same way as prison health and safety regulations “protect” an inmate who has been wrongfully convicted. They are too little, too late. In brief, they simply do not guarantee that a law-abiding juvenile wrongfully arrested without a warrant will regain his freedom within about 48 hours.
I acknowledge that in certain instances the probation officer appears obligated to investigate the question of probable cause. But, by definition, the prompt judicial probable cause determination mandated by the Fourth Amendment as construed by Gerstein and McLaughlin must be made by a judicial officer. Obviously, the probation officer is not such. He has responsibility to law enforcement, seeing that he is possessed of the “powers and authority conferred by law upon peace officers . . . .” (Welf. & Inst. Code, § 283.) The United States Supreme Court expressly recognized as much in Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560], which dealt with the status of the probation officer under the juvenile court law. “[T]he probation officer is the employee of the State which seeks to prosecute the alleged offender. He is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers. He owes an obligation to the State, notwithstanding the obligation he may also owe the juvenile under his supervision. In most cases, the probation officer is duty bound to report wrongdoing by the juvenile when it comes to his attention, even if by communication from the juvenile himself.” (Id. at p. 720 [61 L.Ed.2d at p. 209]; accord, In re Michael C. (1978) 21 Cal.3d 471, 478-479 [1254][146 Cal.Rptr. 358, 579 P.2d 7] (cone. opn. of Mosk, J.), revd. on other grounds sub nom. Fare v. Michael C., supra, 442 U.S. 707.) The probation officer’s “responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate.’’ (Gerstein v. Pugh, supra, 420 U.S. at p. 117 [43 L.Ed.2d at p. 67].)
What the lead opinion may mean to suggest in alluding to the “procedural safeguards’’ of the juvenile court law is that, in Gerstein’s words, “existing procedures . . . satisfy the requirement of the Fourth Amendment.” (Ger-stein v. Pugh, supra, 420 U.S. at p. 124 [43 L.Ed.2d at p. 71].) If it does, it is wrong. As stated, the cited “protections” simply do not guarantee that a law-abiding juvenile wrongfully arrested without a warrant will regain his freedom within about 48 hours.
The lead opinion next suggests that Gerstein’s promptness requirement, at least as defined by McLaughlin, is inapplicable to juveniles because it is assertedly incompatible with the “ ‘informality’ and ‘flexibility’ that characterize juvenile proceedings . . . .” (Schall v. Martin, supra, 467 U.S. at p. 263 [81 L.Ed.2d at p. 216].) No such incompatibility, however, is apparent.
Plainly, the “informality” and “flexibility" of juvenile proceedings—both in American jurisdictions generally and in California specificálly—are designed to make the process more expeditious than that of criminal actions, not less. The review by the lead opinion proves the point as to the juvenile court law. Thus, if any colorable attack could be mounted against McLaughlin’s definition of “promptness," it would be that it is too long, not too short.
Further, it is evident that a prompt judicial probable cause determination generally within 48 hours of a juvenile’s warrantless arrest—like similar determinations routinely and quickly made on application for an arrest warrant—can readily be accommodated. I note that in a case such as this, the arresting officer must presently prepare a “concise written statement of . . . probable cause” “without necessary delay”—and specifically within 24 hours if the criminal offense in question is a misdemeanor. (Welf. & Inst. Code, § 626, subd. (d).) I also note, in words from Gerstein, that “[bjecause the standards [for arrest and detention] are identical, ordinarily there is no need for further investigation before the [judicial] probable cause determination can be made.” (Gerstein v. Pugh, supra, 420 U.S. at p. 120, fn. 21 [43 L.Ed.2d at p. 69].) Evidently, a longer “period of detention” is not required for the state “to take the administrative steps incident to arrest” for a juvenile than for an adult. (Id. at p. 114 [43 L.Ed.2d at p. 65].) Indeed, at oral argument on rehearing, counsel for respondent effectively conceded the point: a judicial probable cause determination, he admitted, is “not . . . difficult” to make.
[1255]It may be true, as the lead opinion asserts, that “when a minor is detained on suspicion of criminal activity, in contrast to an adult detained under similar circumstances, the inquiry into the propriety of the extended detention is much broader in scope”—and more “complex”—“than a determination, in the strict Fourth Amendment sense, of whether ‘factual’ probable cause exists to believe the minor committed the crime for which he was taken into custody.” (Lead opn., ante, at pp. 1221-1222.) That this “inquiry” may be “broader” and more “complex” than probable cause is a result of the Legislature’s policy choice and not federal constitutional compulsion. But this “inquiry” does indeed depend on probable cause narrowly and simply defined.
It may also be true, as the lead opinion asserts, that the so-called “factual probable cause determination is but one component of the broader inquiry . . . .” (Lead opn., ante, at p. 1224, italics omitted.) But this “component” is the first to be decided both in time and in logic.
To repeat: “A state has no legitimate interest in detaining . . . individuals who have been arrested without probable cause” generally beyond 48 hours (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 55 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669], italics added)—whether or not such individuals have attained the age of majority. Surely, the state may have a “legitimate interest” in continuing to detain juveniles who have been arrested without probable cause beyond 48 hours when there exists a supported basis for doing so separate and independent from the unsupported suspicion of criminal activity, as for example the presence of sickness or injury that requires care (see Welf. & Inst. Code, § 305, subd. (d)). In such cases, the state may continue to detain without implicating Gerstein and McLaughlin.
The foregoing assessment of the feasibility of a prompt judicial probable cause determination generally within 48 hours of a juvenile’s warrantless arrest is confirmed by experience. Petitioner represents, without dispute, that a number of the state’s largest counties, including San Diego, Orange, Santa Clara, Sacramento, San Francisco, Fresno, and San Mateo, are successfully providing determinations of this kind. At oral argument on rehearing, counsel for respondent conceded that Los Angeles is doing the same, at least for most juveniles.
The lead opinion then suggests, most curiously, that Gerstein’s promptness requirement, at least as defined by McLaughlin, is inapplicable to juveniles because the commands laid down by the United States Constitution should yield to the preferences indicated in California law.
Of course, under the supremacy clause, the reverse is true.
[1256]Thus, the state may choose under the juvenile court law to fully investigate the circumstances of a detained juvenile, his parents, and his home before it decides whether and how to release him. (See Welf. & Inst. Code, § 628.) But it cannot extend the juvenile’s detention as it pursues its investigation without a prompt judicial probable cause determination generally within 48 hours of his warrantless arrest—which establishes whether the juvenile should have been detained in the first place. To permit the state to grant itself such an extension would allow it to avoid the promptness requirement entirely—surely an untenable result. To repeat yet again: “A State has no legitimate interest in detaining . . . individuals who have been arrested without probable cause” generally beyond 48 hours (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 55 [114 L.Ed.2d at p. 62, 111 S.Ct. at p. 1669], italics added)—whether or not such individuals have attained the age of majority.
In any case, the state’s furtherance of the choices it has decided to pursue under the juvenile court law is not adversely affected by the Fourth Amendment’s mandate of a prompt judicial probable cause determination generally within 48 hours of a juvenile’s warrantless arrest.
The experience in Orange County appears typical. In a letter in support of the petition for review, the Orange County Public Defender represented that “[i]n response to [McLaughlin], law enforcement agencies . . . prepare and submit single page pre-printed forms which, when completed, summarize the basis of a warrantless arrest”; the “arresting agency . . . submits a ‘probable cause’ sheet to Juvenile Hall intake officers when booking a minor”; twice a day when court is in session and once a day when it is not, a judicial officer reviews the “ ‘probable cause’ sheets,” either directly or over the telephone, and “makes the necessary determination”; “[throughout the foregoing procedures, the minor’s normal Juvenile Hall routine is never interrupted or delayed and no changes have been made in this routine as a result of the above McLaughlin procedure”; “[a]t no time is the minor transported to a courtroom or holding area in conjunction with a ‘probable cause’ determination”; “[a]t no time is the district attorney or public defender’s office consulted as to any probable cause determination”; the “determination is non-adversarial and there are no court appearances by the minor, counsel or any law enforcement personnel.”
The lead opinion also implies that “promptness” for purposes of the prompt judicial probable cause determination mandated by the Fourth Amendment as construed by Gerstein and McLaughlin may be measured in terms of the time that is required for any given state to “take” whatever “steps” it chooses beyond those “incident to arrest” (Gerstein v. Pugh, supra, [125742]0 U.S. at p. 114 [43 L.Ed.2d at p. 65]). That cannot be. As stated, a federal constitutional mandate that is designed to constrain the states cannot be dependent on such individual policy choices. Otherwise, that mandate would be rendered empty: each individual state would effectively be allowed to define “promptness” for itself.
One thing remains to be said. And it is important. The lead opinion’s reasoning does not express the views of a majority of this court. As a result, its analysis “lacks authority as precedent” (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918 [13 Cal.Rptr.2d 245, 838 P.2d 1198]) and hence cannot bind. Therefore, its mischief is limited to this case and to this case alone.
VI
For the reasons stated, I conclude that Gerstein's promptness requirement is indeed applicable to juveniles and that McLaughlin's definition of “promptness” does in fact operate in this setting.
From this conclusion, it follows that petitioner’s systemic Fourth Amendment challenge to the superior court’s “official position” that Gerstein’s promptness requirement, at least as defined by McLaughlin, is not applicable to juveniles is successful.
I would therefore reverse the judgment of the Court of Appeal with directions to cause issuance of a peremptory writ of mandate compelling the superior court to comply with Gerstein’s promptness requirement as defined by McLaughlin with regard to juveniles as well as adults.
In closing, I quote, with minor modifications, Justice Scalia’s final words in his dissenting opinion in McLaughlin.
“Justice Story wrote that the Fourth Amendment ‘is little more than the affirmance of a great constitutional doctrine of the common law.’ [Citation.] It should not become less than that. One hears the complaint, nowadays, that the Fourth Amendment has become constitutional law for the guilty; that it benefits the career criminal (through the exclusionary rule) often and directly, but the ordinary citizen remotely if at all. By failing to protect the innocent [juvenile] arrestee, today’s [decision] reinforces that view. . . . Hereafter a law-abiding [juvenile] wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to [three] days—never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. [1258]In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as our own.” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 71 [114 L.Ed.2d at p. 72, 111 S.Ct. at p. 1677] (dis. opn. of Scalia, J.).)
Accordingly, I dissent.
Kennard, J., and George, J., concurred.
Indeed, as the lead opinion notes (ante, p. 1217), the original habeas corpus petition challenged the “official position” of the Los Angeles County Superior Court, based on an opinion of county counsel, that juveniles are not entitled to a prompt probable cause determination under McLaughlin, supra, 500 U.S. 44. For this reason, I agree with Justice Mosk and Justice George that the lead opinion is nonresponsive and therefore unpersuasive to the extent the analysis relies on Schall v. Martin (1984) 467 U.S. 253 [81 L.Ed.2d 207, 104 S.Ct. 2403], a case decided on Fourteenth Amendment due process grounds, and Reno v. Flores (1993) 507 U.S__[123 L.Ed.2d 1, 113 S.Ct. 1439], a Fifth Amendment due process decision.
The Fourth Amendment, of course, is applicable to the states through the due process clause of the Fourteenth Amendment. (Wolf v. Colorado (1949) 338 U.S. 25, 27-28 [93 L.Ed. 1782, 1785-1786, 69 S.Ct. 1359], overruled on another point, Mapp v. Ohio (1961) 367 U.S. 643, 643-660 [6 L.Ed.2d 1081, 1083-1093, 81 S.Ct. 1684, 84 A.L.R.2d 933],
At this and a few other places in McLaughlin, the court referred to a “probable cause hearing” as the subject of Gerstein. “But this unfortunate phrase (used much less often than the more accurate term, ‘probable cause determination’) should not be taken to suggest an adversary hearing is required.” (2 LaFave, Search and Seizure (2d ed. 1994 pocket supp.) § 5.1, p. 123, fn. 198.4.)
In Jenkins v. Chief Justice of Dist. Court (1993) 416 Mass. 221, 232, 238 [619 N.E.2d 324, 332, 335], the Supreme Judicial Court of Massachusetts recently held, in the course of a scholarly and unanimous opinion, that article 14 of the Massachusetts Declaration of Rights, the state constitutional counterpart to the later-adopted Fourth Amendment, “embodies the common law guarantee that a warrantless arrest must be followed by a judicial determination of probable cause no later than reasonably necessary to process the arrest and to reach a magistrate,” and that, “in the usual circumstance, no more than a twenty-four hour time period is needed to reach the magistrate.”