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Date: 09-12-2017

Case Style:

United States v. Roberto Pabon

Second Circuit Court of Appeals - New York, New York

Case Number: 16‐1754‐cr

Judge: Debra Ann Livingston

Court: United States Court of Appeals for the Second Circuit on appeal from the District of Vermont (Chittenden Count)

Plaintiff's Attorney: Joseph R. Perella and Gregory L. Waples

Defendant's Attorney: Barclay T. Johnson

Description: In the early hours of March 21, 2014, Vermont state police pulled over the
car in which defendant‐appellant Roberto Pabon was riding after the driver
committed a traffic violation. Acting on corroborated information suggesting
that the driver of the car used that specific route to transport associates who were
body‐packing drugs, and on specific indications that Pabon was carrying
narcotics, the police placed Pabon under arrest. After a CT scan administered
that evening pursuant to a search warrant further confirmed the officers’ initial
assessment that Pabon was body‐packing narcotics, Pabon agreed to take
laxatives and, over the next several days, he passed packages containing nearly
one hundred grams of cocaine and heroin.
Before the district court, Pabon moved to suppress this evidence, and he
renews several of his key contentions from this motion on appeal. First, Pabon
points to an x‐ray exam conducted prior to the CT scan, which, as reviewing
doctors explained at the time, did not reveal evidence of body‐packing. He
contends that probable cause dissipated after the doctors shared this assessment
with the state police officers who had arrested Pabon, and that the Fourth
Amendment therefore required his immediate release. Second, Pabon argues
that the state police failed to timely obtain the judicial determination of probable
cause to arrest required under Gerstein v. Pugh, 420 U.S. 103 (1975), and County of
Riverside v. McLaughlin, 500 U.S. 44 (1991). Specifically, he maintains that (1)
since the state court judge did not make an affirmative determination of probable
cause for his continued detention until about 4:00 P.M. on March 23, his
detention extended beyond the 48 hours within which the Gerstein determination
generally must be made, and (2) the officers’ failure to obtain a probable cause
determination at an earlier point in the process amounted to an “unreasonable
delay” of that determination, in violation of the Fourth Amendment, under the
framework McLaughlin provides for analyzing such claims. Any one of these
errors, Pabon contends, is sufficient to warrant suppression.
We reject each of Pabon’s arguments. Throughout Pabon’s detention, and
based on the totality of the circumstances they confronted, police had probable
cause to believe that he had committed – indeed, that he was committing –
narcotics offenses. Thus, even assuming arguendo that the Fourth Amendment
required the police, after the x‐ray exam, to revisit their initial, and correct,
determination that they possessed probable cause to arrest, Pabon’s continued
detention was lawful, subject to the Fourth Amendment framework regulating
the warrantless detention of an individual in police custody set out in Gerstein
and McLaughlin.
Turning to Pabon’s contentions under those cases, we hold first that even
if the officers did violate McLaughlin’s 48‐hour rule, suppression would not be
justified. Because the evidence Pabon seeks to have suppressed was obtained
well within the close of the 48‐hour window, violation of McLaughlin’s
bright‐line rule cannot have been the cause of the discovery of the evidence at
issue, and hence suppression is not warranted. Second, applying McLaughlin’s
framework for analyzing whether police activity subsequent to an individual’s
arrest constitutes “unreasonable delay” in bringing that individual’s case before
a magistrate, 1 we hold that the evidence adduced by Pabon does not
demonstrate, on these facts, that the police unreasonably delayed the
determination Gerstein and McLaughlin require. We therefore affirm the
judgment of conviction entered below.
I. Factual Background
On March 16, 2014, on the Sunday preceding Pabon’s arrest, Vermont State
Trooper Lewis Hatch pulled over a vehicle driven by Jaiden Paige, in which
Pabon was a passenger, and Hatch deployed his canine detection dog, trained to
detect narcotics, outside the vehicle. The canine alerted to the car. After
several consent searches, both on site and back at the police barracks, state police
1 We use the term “magistrate” throughout the opinion when referring to a
judicial officer. See BLACK’S LAW DICTIONARY 1094, 1257 (4th ed. 2014).
officers discovered $8,575 inside the purse of Emily Degrandi, a third occupant of
the vehicle, who told them that half of the money was hers, and half belonged to
Pabon. The police canine later alerted to the money in a blind sniff test. The
officers ultimately allowed all the occupants of the vehicle to leave, but they
seized the money and vouchered it as evidence.
Four days later, on March 20, Hatch received a tip that Paige was planning
to rent a car from Green Mountain Car Rental (“Green Mountain”) in Rutland,
Vermont. By this time, Hatch had been informed by the Vermont State Police
drug task force that Paige was a suspected narcotics trafficker. According to
information the task force provided, Paige frequently ferried narcotics north
from Hartford, Connecticut to Rutland, a round‐trip distance of over 300 miles,
by driving north on Interstate 91 and then northwest on Vermont State Route 103
(“Route 103”). He frequently would not carry the narcotics himself, according
to the task force’s information, but would instead have an associate body‐pack
the drugs for the duration of the drive.
Hatch followed up on the Paige tip by contacting Green Mountain directly
and inquiring into Paige’s rental history. Hatch was advised that Paige had
rented from Green Mountain several times in the past, that he would frequently
rent a vehicle in the afternoon and return it early the next morning, and that he
would generally put hundreds of miles on the vehicle in the interim. Hatch also
confirmed that Paige was scheduled to rent a vehicle that evening and Hatch
obtained the make, model, and license number of that automobile.
Hatch also investigated Paige’s traffic stop and accident history, which
corroborated the information provided by the drug task force. This history
showed that Paige had been involved in a number of incidents along Interstate
91 and Route 103 between Hartford and Rutland, and that nearly all these
incidents occurred between 8:00 P.M. and 2:00 A.M. More specifically, most of
the stops and accidents in the evening occurred while Paige was driving
southward, and most of those that occurred in the very early morning took place
while Paige was driving northward.
Armed with this information, Hatch monitored Green Mountain over the
course of that afternoon. At approximately 4:45 P.M., Hatch observed Paige
entering Green Mountain. Soon thereafter, drug task force personnel informed
Hatch that the vehicle Paige was scheduled to rent was parked where Paige had
earlier told Hatch that he lived; by late evening the drug task force indicated that
the car was no longer there. Hatch immediately emailed other local law
enforcement to share the information he had gathered, and to inform them that it
was possible Paige would be making what appeared to be his regular run into
Vermont from the Hartford area later that night.
At about 12:42 A.M. the next day – Friday, March 21 – Trooper Seth
Richardson spotted the vehicle Hatch had identified in his email heading
northwest on Route 103 in Vermont. At 12:48 A.M., after Richardson had
trailed the car for several miles, first along Route 103 and then north on U.S.
Route 7 towards Rutland, Richardson pulled the vehicle over for failing to come
to a complete stop at a stop line in Rutland. Paige was operating the vehicle,
and Pabon was in the passenger seat. While Paige provided his license and
registration at Richardson’s request, Pabon refused to identify himself.
In response to questioning from Richardson, Paige claimed that he had
been driving north on U.S. Route 7 from a town several miles to the south on the
same road. When Richardson informed Paige that he had seen Paige turn onto
U.S. Route 7 from Route 103, Paige denied having done so. Paige subsequently
consented to a search of his rental vehicle, and both he and Pabon stepped out of
the vehicle to allow Richardson, together with several officers from the Rutland
Police Department who had joined him, to conduct the search. The officers did
not immediately locate anything of interest in the vehicle, and both Paige and
Pabon were permitted to reenter the car while the officers conducted a canine
sniff of the vehicle’s exterior. The canine alerted on the exterior of the
passenger‐side front door of the vehicle, inside of which Pabon was seated.
Given the canine alert, the officers asked Pabon and Paige to exit the vehicle
again, placed each in a separate police cruiser, and escorted them to the state
police barracks in Rutland.
Once at the barracks, the officers asked Pabon and Paige to consent to
searches of their person. Paige granted consent, but the search revealed nothing
of interest. Further, when Trooper Hatch brought his canine into the search
room to conduct a sniff of the chair on which Paige had been sitting, the canine
did not alert to the chair. Paige was accordingly released soon thereafter.
Pabon, on the other hand, refused to give the officers a clear answer as to
whether or not he would consent to a search of his person. Instead, after first
equivocating as to whether officers could search his jacket, Pabon became
agitated and suddenly removed all of his clothing without having been asked to
do so. The officers did not conduct a search of Pabon’s person or his clothing at
that time, though they did ask Pabon to sit on a chair in another room so that
they could conduct a canine sniff. Pabon vehemently refused to sit down,
becoming confrontational to the point that he was returned to his holding cell for
safety reasons.
After being returned to his cell, Pabon urgently asked to use the bathroom,
threatening to urinate on the floor (and even removing his penis from his pants
to do so) if he was not immediately taken to the facilities. The officer
supervising Pabon told Pabon that he would return shortly to escort Pabon to the
bathroom, but that he would first need to ensure that the water flow to the toilet
was turned off. Pabon agreed to wait. When the officer returned, however,
Pabon denied that he needed to use the bathroom and merely asked the officer
for some water. Hours later, Pabon had still not required use of the facilities.
While Pabon was being held, Hatch sought two search warrants from
Judge William Cohen of the Vermont Superior Court: one permitting the officers
to conduct a more thorough search of Paige’s rental vehicle, and one permitting
both a search of Pabon’s person and clothing and the x‐ray of his lower
abdomen. Judge Cohen issued both warrants at 7:50 A.M. on the morning of
March 21. By this time, about seven hours had elapsed since the initial stop of
the car in which Pabon was a passenger.
State police officers promptly conducted the searches Judge Cohen had
authorized. In the course of searching the vehicle, the officers discovered and
seized three cell phones. In addition, a canine sniff produced alerts on the
passenger‐side door, the cushion on the front passenger‐side seat (where Pabon
had been sitting), and the floorboard beneath the driver’s‐side seat. The search
of Pabon’s person, however, revealed nothing of interest.
After Pabon left for the Rutland Hospital with several officers for his x‐ray,
Hatch conducted a canine sniff of the cell in which Pabon had been held. The
dog circled inside the holding cell several times and then issued what Hatch
identified as an alert to the odor of narcotics.
At the Rutland Hospital, Pabon was asked by hospital staff to provide a
urine sample. A police officer escorted Pabon into the restroom and told him
that, when he was finished providing the sample, he could urinate into, but
should not flush, the toilet. Pabon subsequently sat on the toilet, informing the
officer that he needed to defecate. He was again advised that he could not flush
as the police suspected that he was body‐packing. Contrary to instructions,
Pabon abruptly turned as if adjusting his handcuffs and flushed or attempted to
flush the toilet, but the police who quickly responded did not observe anything
in it.
Pabon’s x‐rays were then taken and examined by two doctors at the
hospital: a radiologist and the emergency room attending physician who had
admitted Pabon. The images revealed several shaded masses in Pabon’s pelvic
area. In a written evaluation, Dr. James Rademacher, the radiologist, concluded
that this x‐ray did not provide specific “evidence [of] a foreign body” or of any
“rectal foreign body.” Joint App’x 161. Dr. Rademacher explained to the
officers that, while he “did see several quite rounded structures in the rectum,”
the x‐ray did not show “any foreign bodies [or] foreign material in the rectum
consistent with drug‐packing,” and that the “rounded structures” visible in the
image were “most likely . . . very hard stool balls.” Id. at 170. Dr. Todd
Gregory, the emergency room physician, likewise reported in a separate
evaluation that the “x‐rays [we]re negative,” and that it was therefore “unlikely”
that Pabon was body‐packing. Id. at 82.
Dr. Rademacher also explained to the officers in conversation, however,
that an x‐ray exam is not necessarily a test that is “all that sensitive . . . [or] that
specific” for uncovering evidence of body‐packing. Id. at 170. Because an
x‐ray works, in part, by revealing differences between the densities of objects
captured in the image, and because the density of packed narcotics can be similar
to that of biological material, Dr. Rademacher explained that it was certainly
“possible that there could be some type of rectal packing . . . not” identifiable in
the x‐ray image. Id. at 171. As he put it, he saw no “positive evidence for a
foreign body within the rectum,” but that while positive evidence would be
“highly specific” on this point, the absence of such evidence “does not mean [the
foreign body] does not exist.” Id. at 170‐71.
The hospital discharged Pabon into the custody of the state police just after
2:30 P.M., under fourteen hours since the stop of Paige’s car. Upon Pabon’s
return to the police barracks, Hatch began to draft an application for an
additional search warrant permitting the officers to bring Pabon back to the
hospital for a CT scan, which would be more reliable. In the interim, one of
Hatch’s on‐site superiors, Sergeant Mark Perkins, emailed a copy of the x‐ray
images to Sergeant Eric Albright, who had worked in drug interdiction for about
16 years and, in that capacity, had reviewed x‐rays of suspected body packers on
over a dozen occasions. 2 Examining the images, Albright “immediately
2 Albright had served as an EMT before becoming a state trooper. At the time
of the events at issue in this case, he was assigned to the traffic operations unit.
observed three masses in the lower pelvis area,” a presentation “consistent with
other x‐rays [he had] observed” in several body‐packing cases he had worked on.
Id. at 73. Albright completed an affidavit documenting his assessment, which
Hatch then incorporated into the larger affidavit he had prepared in support of
the CT scan search warrant application.
Meanwhile, Pabon remained in a holding cell in the police barracks. At
about 4:15 P.M., less than two hours after his discharge from the Rutland
Hospital, he banged his head on the cell doors and appeared to injure himself.
The officers tending to him decided to take Pabon back to the hospital for
examination and possible treatment, notifying Hatch of the situation. Hatch
completed the warrant application shortly thereafter – likely before 5:00 P.M.
While he immediately sought its approval from a state court judge, he was at
first unable to reach one.
Back at the hospital, Pabon was evaluated by Dr. John Hartmann at about
5:10 P.M. Pabon complained of lethargy and Dr. Hartmann noted that Pabon,
on examination, appeared to be lethargic. After being informed by the officers
on scene that Pabon was suspected of body‐packing, Dr. Hartmann reviewed the
x‐ray images taken earlier in the day and found them to be “equivocal” on the
question of whether Pabon was body‐packing. Id. at 80. Out of concern that
Pabon might actually be body‐packing, and specifically that a punctured
narcotics bag could be causing Pabon’s lethargy and posing a risk of harm, Dr.
Hartmann ordered a CT scan, at which point, according to Dr. Hartmann, Pabon
“became suddenly and acutely alert,” repeatedly and vociferously refusing to
have the scan performed. Pabon was discharged from the hospital at about 6:15
P.M. with a diagnosis of “lethargy, resolved.”
By this time, Hatch had spoken to Judge Cohen, though the precise time is
not clear from the record. Judge Cohen, pointing to the fact that Dr.
Rademacher’s and Dr. Gregory’s written assessments indicated that the x‐rays
did not reveal evidence of body‐packing, had declined to issue the warrant for a
CT scan. Informed of the most recent developments at the hospital, however,
Hatch soon secured an affidavit from Dr. Hartmann attesting to his interaction
with Pabon, his view that the x‐ray images were “equivocal for foreign body in
the patient’s rectum,” and his recommendation that a CT scan be performed.
Hatch then revised his own affidavit accordingly and resubmitted the
application for a CT scan search warrant to Judge Cohen. At 9:15 P.M., or just
over 20 hours since the car in which Pabon was riding was stopped, Judge Cohen
issued the requested warrant.
Pabon underwent a CT scan soon thereafter. The CT scan images
revealed multiple rounded densities in the rectum suggestive of body‐packing.
Pabon was approached by medical personnel and, on their advice, he agreed to
ingest oral laxatives. Sometime after midnight, just over 24 hours after he was
initially detained, Pabon passed three packages containing narcotics. Pabon
continued to pass packages over the next several days. In total, police
recovered eight packages from Pabon containing, together, nearly 100 grams of
cocaine and heroin.
On March 23, at about 4:00 P.M., Hatch contacted Judge Cohen to obtain a
determination that the state police had probable cause to detain Pabon. Judge
Cohen so found, and set bail at $500,000. Arraignment – the first time Pabon
appeared before a judicial officer – was held on March 26 before Judge Theresa
DiMauro. Bond was re‐set at $250,000, and Pabon entered a plea of not guilty.
II. Procedural History
Following the dismissal of state charges in favor of federal prosecution,
Pabon was indicted in the District of Vermont on one charge of possession with
intent to distribute cocaine and heroin. Pabon thereafter filed a motion to
suppress physical evidence obtained after his arrest with the district court
(Murtha, J.). As relevant here, Pabon argued that suppression was warranted
because probable cause dissipated after doctors determined his x‐rays did not
reveal any foreign material and that, therefore, the state police were required to
release him immediately upon discharge from the hospital. Pabon also argued
that suppression was warranted because the state police had violated the Fourth
Amendment rule set forth in Gerstein and McLaughlin, by not securing a prompt
judicial determination of probable cause to detain after his warrantless arrest.
After a suppression hearing at which Hatch and Dr. Rademacher, among
others, testified, the district court denied Pabon’s motion, concluding that the
officers had not violated Pabon’s Fourth Amendment rights. Pabon and the
Government subsequently entered into a plea agreement pursuant to Federal
Rule of Criminal Procedure 11(c)(1)(C) in which they agreed upon a sentence of
30 months, at the low end of Pabon’s applicable Sentencing Guidelines range.
The plea agreement also preserved Pabon’s right to appeal the district court’s
ruling on his motion to suppress. The court accepted the plea agreement and
sentenced Pabon principally to 30 months’ imprisonment.3 This appeal timely
In adjudicating the merits of this appeal, we review the district court’s
factual findings for clear error, and its application of law to fact de novo. See
United States v. Bohannon, 824 F.3d 242, 247–48 (2d Cir. 2016). We may affirm
the district court’s judgment on a motion to suppress “on any ground that finds
support in the record.” United States v. Ganias, 824 F.3d 199, 208 (2d Cir. 2016)
(en banc).
Though we have previously expressed some doubt about whether, in
conducting our review, we “view the evidence in the light most favorable to the
prevailing party [on the motion to suppress] or . . . simply review for clear error,”
United States v. Bershchansky, 788 F.3d 102, 110 (2d Cir. 2015), we clarify here that,
in reviewing the district court’s decision, we apply familiar standards governing
clear error review, without viewing the evidence in either party’s favor. In
addition to carrying with it the advantage of invoking already‐familiar standards
of review, this approach is also the one most consistent with precedent.
3 Pabon has now completed the 30‐month term of incarceration ordered by the
district court.
In Ornelas v. United States, 517 U.S. 690 (1996), the Supreme Court, in
holding “that as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal,” also made clear that we
review a district court’s findings of fact underlying such determinations “only
for clear error.”4 Id. at 699. The Court in Ornelas nowhere suggested that the
clear error standard should be slanted in favor of one party or another,
moreover, but instead suggested that it intended for us to apply the familiar
version of that standard. As the Court explained, “‘[c]lear error’ is a term of art
derived from Rule 52(a) of the Federal Rules of Civil Procedure, [which] applies
when reviewing questions of fact.” Id. at 694 n.3. The Court nowhere
indicated that this “term of art” takes on a different meaning when invoked in
the context of the appeal from a motion to suppress.
4 Illinois v. Gates had earlier held, in the context of warrants, that an issuing
magistrate’s probable cause determination is not reviewed de novo, but should be
upheld so long as “the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a
search would uncover evidence of wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236
(1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)); see also Walczyk v. Rio, 496
F.3d 139, 157, 158‐59 (2d Cir. 2007) (applying same standard to arrest warrant).
Pabon’s Fourth Amendment challenges are not principally directed at the probable
cause supporting either of the two search warrants that issued during his detention, and
we do not address the standard of review in the context of searches or arrests pursuant
to warrant.
As to the alternative approach, namely viewing the evidence in the light
most favorable to the prevailing party, this standard makes little sense, given the
Supreme Court’s admonition in Ornelas that we should also give “due weight” to
the inferences drawn by local law enforcement officers and by trial judges, who
are resident in the communities they serve. Ornelas, 517 U.S. at 699; United
States v. Wilson, 699 F.3d 235, 242 (2d Cir. 2012). A reviewing court should
“review findings of historical fact only for clear error,” the Court said, “giv[ing]
due weight to inferences drawn from those facts by resident judges and local law
enforcement officers.” Ornelas, 517 U.S. at 699. But employing the alternative
approach, it is far from clear how one might go about appropriately layering the
inferences required by this approach on top of the “due weight” afforded by
Ornelas to locally‐drawn inferences.
As a result, as Bershchansky itself recognized, “the better approach is to
review the district court’s findings of fact for clear error without viewing the
evidence in favor of either party.” 788 F.3d at 109. While we have not, in cases
since Bershchansky, definitively resolved the question that case left open, this
“better approach” is the one we have consistently invoked. See, e.g., Bohannon,
824 F.3d at 247–48. And, of particular note, this is the standard we recently
applied when sitting as an en banc court in Ganias. 824 F.3d at 208. We
therefore decline to view the evidence in the Government’s favor in the context
of this challenge to Pabon’s warrantless detention, and instead simply apply the
clear error standard.
An officer has probable cause to arrest where he is in possession of
“reasonably trustworthy information [concerning] facts and circumstances
sufficient to warrant a person of reasonable caution in the belief that the person
to be arrested has committed or is committing a crime.” Walczyk v. Rio, 496 F.3d
139, 156 (2d Cir. 2007) (internal quotation marks omitted). This standard “is a
practical, nontechnical conception that deals with the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (internal
quotation marks omitted). “Because the standard is fluid and contextual, a
court must examine the totality of the circumstances [surrounding] a given
arrest.” United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008). In doing
so, we consider the circumstances from the perspective of an objectively
reasonable police officer, recognizing that the officer is entitled to draw
reasonable inferences on the basis of his prior experience. Id.; see also Ornelas,
517 U.S. at 700.
Pabon does not vigorously contest on appeal that the Vermont state police
had probable cause to arrest him following the early morning March 21, 2014
traffic stop. At the time of that arrest, the police were acting on the basis of
specific information: (1) that Paige, a known drug dealer, had been scheduled to
rent a car the prior evening; (2) that Paige had a history of nighttime drug runs,
ferrying drugs north on Interstate 91 and northwest on Route 103, from Hartford
to Rutland; (3) that the contraband carried on these nighttime runs was
frequently transported by an associate (in this case, Pabon) who would
body‐pack the drugs; (4) that Paige often rented a car for these long overnight
drives from the very car rental outlet he rented from the prior evening; (5) that
Paige had a history of evening and early morning traffic stops and accidents
along this defined route between Hartford and Rutland; (6) that Paige was seen
driving along Route 103 that evening, but denied having been on it; (7) that
earlier that same week Pabon had been in the car with Paige when a trained
canine alerted to the car and to money suspected of being drug‐sale proceeds;
and (8) that a canine also alerted on the front passenger side of the vehicle, where
Pabon was seated, on the very night of his arrest. Given the totality of
circumstances – and in light of “the events leading up to the arrest,” Pringle, 540
U.S. at 371 – the officers had probable cause to arrest Pabon.
Pabon’s chief contention is that after the initial arrest and, in particular,
after the assessments by Drs. Rademacher and Gregory that the x‐ray images
taken pursuant to the first search warrant did not reveal evidence of
body‐packing, probable cause had “dissipated.” Pabon Br. 24. As a result,
Pabon argues, he should have been released from police custody as soon as he
was returned to the police barracks from the hospital, if not before. The failure
to release him, he contends, warrants suppression of all the evidence that
followed. For the following reasons, we disagree.
We appear to have first discussed the effect of a dissipation of probable
cause on the legality of a search or seizure in United States v. Marin‐Buitrago, 734
F.2d 889 (2d Cir. 1984). There, we observed that officers charged with executing
a warrant have a “duty to report new or correcting information to the
magistrate” if information received after the warrant has been signed, but before
its execution, would be “material to the magistrate’s determination of probable
cause” – in other words, would “cast doubt on the existence of probable cause.”
Id. at 894‐95. Though Marin‐Buitrago dealt with the standards for issuance of a
search warrant, the same logic applies in evaluating whether probable cause
exists for a warrantless arrest. See Walczyk, 496 F.3d at 156 (applying the
standards governing probable cause for a warrantless arrest to evaluate probable
cause for issuance of a warrant). As the Fifth Circuit explained in the context of
a warrantless seizure of property, it is “a corollary . . . of the rule that the police
may rely on the totality of facts available to them in establishing probable cause”
that officers “may not disregard facts tending to dissipate probable cause” when
directly confronted with such facts before an arrest is made. Bigford v. Taylor,
834 F.2d 1213, 1218 (5th Cir. 1988); see also Panetta v. Crowley, 460 F.3d 388, 395 (2d
Cir. 2006) (“[A]n officer may not disregard plainly exculpatory evidence.”); Jocks
v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (“[U]nder some circumstances, a
police officer’s awareness of the facts supporting a defense can eliminate
probable cause.”).
We have not often considered dissipation in the context of new
information emerging after a warrantless arrest based on probable cause. The
core obligation the Fourth Amendment imposes on the police at this stage is to
ensure that “persons arrested without a warrant . . . promptly be brought before
a neutral magistrate for a judicial determination of probable cause.”
McLaughlin, 500 U.S. at 53; see also Manuel v. City of Joliet, 137 S. Ct. 911, 917–18
(2017) (explaining that, after an arrest, the focus of the Fourth Amendment’s
guarantee to individuals detained without a warrant is on ensuring that the
detainee receives a “fair and reliable determination of probable cause as a
condition for [imposing] any significant pretrial restraint” (quoting Gerstein, 420
U.S. at 125)). It is then the magistrate’s job to determine “whether there is
probable cause for detaining the arrested person pending further proceedings.”5
Gerstein, 420 U.S. at 120.
5 This understanding is embedded in our § 1983 case law. We have explained
that the probable‐cause‐to‐arrest inquiry is generally “limited to whether the facts
known by the arresting officer at the time of the arrest objectively provide[] probable
cause to arrest.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013)
(internal quotation marks omitted); see also Warren v. Dwyer, 906 F.2d 70, 73 (2d Cir.
1990) (“[P]robable cause encompasses only that information available to the arresting
official prior to and including the point of seizure.”). A § 1983 plaintiff’s false arrest
claim therefore fails so long as the officer had probable cause to arrest at the time the
arrest was made, even if information later developed that would undermine probable
cause. See Caldarola v. Calabrese, 298 F.3d 156, 166 (2d Cir. 2002) (examining whether
the officer’s decision to arrest was reasonable “based on the information available to
him at the time”). Thus, “[o]ur court has uniformly rejected Fourth Amendment false
arrest claims premised on lawful arrests supported by probable cause.” See Russo v.
City of Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007).
Consistent with this approach, cases from other circuits concerning the
“dissipation” of probable cause generally address the question whether, when an officer
receives information that directly undermines probable cause prior to an arrest, he must
Other than the obligations clearly imposed by Gerstein and McLaughlin, the
Supreme Court has never indicated that the police have a specific Fourth
Amendment obligation in the aftermath of a warrantless arrest continually to
reevaluate whether the available evidence still definitively supports the initial
probable cause determination. Some sister circuits, moreover, have suggested
that the administration of an obligation “to release suspects the moment
sufficiently exculpatory evidence emerges” would be unmanageable. See Peet v.
City of Detroit, 502 F.3d 557, 565 (6th Cir. 2007); Brady v. Dill, 187 F.3d 104, 111–12
(1st Cir. 1999). In the often crucial hours after an arrest, the police and other law
enforcement officers may be required to trace multiple developing leads at any
given time, with each new piece of information supporting probable cause, or
sometimes running counter to it. Given the fluidity purposely built into the
probable cause standard, requiring officers continually to make
moment‐to‐moment assessments of probable cause could misallocate limited
account for this information in deciding whether probable cause to arrest is present.
See, e.g., Seiser v. City of Chicago, 762 F.3d 647, 655–56 (7th Cir. 2014) (considering and
rejecting the contention that passing a field sobriety test prior to arrest negated probable
cause); Stonecipher v. Valles, 759 F.3d 1134, 1146 (10th Cir. 2014) (evaluating the merits of
a false arrest claim by looking to the officers’ reasonable interpretation of the
information known at the time of arrest); Evett v. Denteff, 330 F.3d 681, 688 (5th Cir.
2003) (evaluating whether probable cause had dissipated “based on all of the available
information at the time of the arrest”).
police resources and even undermine the framework established in Gerstein and
McLaughlin, which provides for a prompt determination by a magistrate whether
probable cause exists “as a prerequisite to extended restraint of liberty following
arrest.” 420 U.S. at 114; see Peet, 502 F.3d at 565 (noting that a “court‐imposed
requirement” of ongoing revaluation of probable cause could result in “[s]ome
released suspects [being] rearrested when further inculpatory evidence
emerged,” even multiple times).
We need not decide, however, whether an officer may, in an extreme case,
be required to release a detainee arrested without a warrant where probable
cause has unequivocally dissipated, rendering further detention prior to the
magistrate’s determination unreasonable. Cf. Lowth v. Town of Cheektowaga, 82
F.3d 563, 571 (2d Cir. 1996) (suggesting a § 1983 malicious prosecution claim may
lie where an officer affirmatively continues processing a defendant’s case after
the “groundless nature of the charges” has become “apparent”). This case does
not present this question, as it is clear from an assessment of the record that
police at all times possessed a reasonable basis for concluding that Pabon had
committed – indeed, was committing – a crime.
As discussed above, probable cause grounded the initial decision to detain
Pabon. In the hours after his arrest, moreover, Pabon’s behavior (including the
sudden removal of his clothes, and his peculiar conduct on two separate
occasions regarding his use – or decision not to use – the restroom) only
supported the officers’ initial probable cause assessment. Additional evidence
emerged from several canine sniffs conducted over the course of that morning.
While Pabon was at the hospital, officers at the barracks conducted both a search
and canine sniff of the car Pabon had been riding in (pursuant to a warrant
issued by the state court judge), and a canine sniff of the holding cell where
Pabon had been detained. During a canine sniff accompanying the search of the
vehicle, the canine alerted on the passenger seat where Pabon had been sitting.
Hatch also conducted a canine sniff of Pabon’s holding cell, at the end of which
the dog, according to Hatch, alerted to the presence of an odor of narcotics.6
Pabon argues that probable cause dissipated “after the x‐rays were
negative and showed ‘no abnormal masses’ or ‘evidence for a rectal foreign
body.’” Br. 20. But he fails to consider the written assessments filed by Drs.
6 Though Pabon contests the accuracy of Hatch’s assessment of the alert, the
district court credited Hatch’s testimony at the suppression hearing that the alert was
consistent with the behavior the dog was trained to demonstrate upon scenting the
presence of narcotics, and we cannot say that determination was clearly erroneous.
Rademacher and Gregory in light of Dr. Rademacher’s testimony at the
suppression hearing and the record as a whole. While the doctors’ written
assessments reflected their view that the x‐ray images did not reveal positive
evidence of any foreign objects in Pabon’s system, Dr. Rademacher’s verbal
statements to the officers at the time qualified this appraisal, highlighting the
limitations of x‐rays as a tool for detecting evidence of body‐packing. As Dr.
Rademacher elaborated in his testimony, an x‐ray image will not necessarily
capture evidence of body‐packing even if someone is carrying narcotics.
Because the x‐ray works, in part, by revealing relative densities of objects in the
human body, and because narcotics can have densities similar to organic
material, narcotics in the rectum are not always easily distinguishable in an x‐ray
image. It was therefore sufficiently clear to the officers at the hospital, including
Hatch, that though an x‐ray is a “reasonably sensitive” test, Dr. Rademacher’s
assessment that the image did not reveal the presence of narcotics “[did] not
mean that [they] [did] not exist.”7 Joint App’x 171. It was therefore a distinct
7 As Dr. Rademacher later confirmed to investigators from the Vermont state
police drug task force, after reviewing the x‐ray neither he nor the emergency room
attending physician were able to rule out the possibility that Pabon had, in fact, placed
something in his rectum. When asked, at the suppression hearing, why he had not
possibility that the variations in image density Dr. Rademacher initially believed
to be “very hard stool balls,” id. at 170, would, on further examination, prove to
be narcotics packed inside Pabon’s rectum.
In such circumstances, the probable cause to believe that Pabon was
transporting narcotics had not dissipated, even taking into account the x‐ray
examination results. By the time Pabon was discharged from the hospital, the
state police not only had the information they had collected prior to Pabon’s
arrest, but they were also privy to Pabon’s objectively suspicious behavior,
canine alerts to places where Pabon was either sitting or had been held, and Dr.
Rademacher’s explanation of the import of the x‐ray images and the relative
effectiveness of that search method. The officers continued to have a reasonable
basis for detaining Pabon, such that, even assuming arguendo that an obligation
to release a suspect could, in some circumstances, arise, it did not do so here.
Properly framed, the central question in this case is thus the one Gerstein and
McLaughlin require us to ask: whether the state police officers unreasonably
delayed obtaining a determination, from a state court judge, that there was
further elaborated on this view in his written assessment, Dr. Rademacher explained
that he felt it was unnecessary because he had already conveyed the relevant
information to Hatch.
probable cause to detain. See McLaughlin, 500 U.S. at 56. It is therefore to that
question that we now turn.
Pabon next argues for suppression on the grounds that he did not receive a
timely post‐arrest determination of probable cause as guaranteed by the Fourth
Amendment. There are two components of this argument, paralleling the two
aspects of Gerstein’s Fourth Amendment rule as later articulated by the Supreme
Court in McLaughlin.
First, in McLaughlin, the Court clarified the timeframe within which the
probable cause determination required under Gerstein must be made. In an
effort to “more clearly articulate the boundaries of what is permissible under the
Fourth Amendment,” the Court explained 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.” Id. at 56.
Where a jurisdiction sets and hews to such a rule, the “jurisdiction[] will be
immune from systemic challenges” to its compliance with Gerstein’s mandate.
Id. At the same time, if “an arrested individual does not receive a probable
cause determination within 48 hours . . . the burden shifts to the government to
demonstrate the existence of a bona fide emergency or other extraordinary
circumstance” justifying the delay. Id. at 57.
Compliance with this rule, however, does not guarantee “that the probable
cause determination in a particular case passes constitutional muster simply
because it is provided within 48 hours.” Id. at 56 (emphasis added). Indeed,
such timing “may nonetheless violate Gerstein if the arrested individual can
prove that his or her probable cause determination was delayed unreasonably.”
Id. Examples of such delay include “delays for the purpose of gathering
additional evidence to justify the arrest, a delay motivated by ill will against the
arrested individual, or delay for delay’s sake.” Id.
Pabon argues, first, that he was not provided with a probable cause
determination within 48 hours, in violation of McLaughlin’s general rule.
Second, Pabon argues that even if there was no violation of McLaughlin’s general
rule, the state police unreasonably delayed his probable cause hearing by using
the time after his return from the hospital in the wake of his x‐ray exam to gather
evidence in support of his continued detention. We consider each of these
arguments in turn.
A. McLaughlin’s 48‐Hour Rule
Pabon first argues that the evidence the state police recovered – including,
as relevant here, the CT scan results and the packages of narcotics he passed
thereafter – should have been suppressed because the Vermont state police failed
to obtain a determination that there was probable cause to detain him until about
63 hours after his arrest, in violation of their Fourth Amendment duties under
McLaughlin. Neither the Supreme Court nor this Court has yet determined
whether a violation of McLaughlin’s 48‐hour rule is an appropriate basis for
suppression. See Powell v. Nevada, 511 U.S. 79, 84‐85 (1994). However, we need
not do so here. Even assuming the general availability of suppression as a
remedy in this context, we conclude that, since the bulk (if not all) of the
evidence Pabon seeks to suppress was discovered well within the relevant
48‐hour period, there is an insufficient causal link between the technical
McLaughlin violation and the evidence Pabon seeks to have suppressed, and
suppression is therefore not warranted in this case.
Pabon was arrested at around 1:00 A.M. on the morning of March 21, 2014,
and, as the Government concedes, the state police did not obtain a determination
of probable cause to detain from a state court judge until 4:00 P.M. on March 23.8
The Government contends that there was nevertheless no violation of
McLaughlin’s 48‐hour rule because Judge Cohen’s earlier determinations as to
probable cause for the searches of Pabon’s person by x‐ray and CT scan qualify
as judicial determinations of probable cause to detain under Gerstein. While we
address (and reject) this argument below, it is unnecessary to do so in the context
of our discussion here. Because the relevant evidence – the CT scan and the
bags of narcotics passed by Pabon thereafter – was first obtained during the first
24 hours after Pabon’s arrest (well before 48 hours had elapsed), there is no
conceivable causal chain connecting the violation of McLaughlin’s 48‐hour rule
and the discovery of this evidence. As a result, even if police delay in obtaining
a probable cause determination violated this component of McLaughlin,
suppression would not be warranted.
The Supreme Court has long held “but‐for” causation to be an irreducible
baseline requirement before a court may even begin to consider whether the
8 Pabon’s state court record suggests that a state court judge in fact made a
determination of probable cause earlier on March 23. However, this determination
would still have been made outside of McLaughlin’s 48‐hour window and therefore
would not change the issue presented on appeal. In any case, to the extent that this
earlier determination was made within the 48‐hour window, the Government does not
press the argument and it is therefore waived.
remedy of suppression is justified on the specific facts of a case. “But‐for
causality is . . . a necessary, [but] not a sufficient, condition for suppression.”
Hudson v. Michigan, 547 U.S. 586, 592 (2006). Thus, a violation of McLaughlin’s
48‐hour rule cannot justify suppression unless the evidence at issue was, at a
minimum, discovered after the relevant period had passed.9 See United States v.
Crews, 445 U.S. 463, 471 (1980) (suppression analysis generally “begin[s] with the
premise that the challenged evidence is in some sense the product of illegal
government activity”). Moreover, a “but‐for cause, or causation in the logical
sense alone, can be too attenuated to justify exclusion.” Hudson, 547 U.S. at 592
(internal quotation marks and citation omitted). And “[q]uite apart from the
requirement of unattenuated causation, the exclusionary rule has never been
applied except ‘where its deterrence benefits outweigh its substantial social
costs.’” Id. at 594 (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363
9 As but one example, in Powell, 511 U.S. at 81, 84‐85, the Supreme Court, while
declining to reach the question whether a violation of the 48‐hour rule can ever justify
suppression of the evidence realized as a result, considered a case in which a
defendant’s confession was obtained on the fourth day after his arrest, well past
McLaughlin’s 48‐hour window.
Further, Pabon himself seems to acknowledge the requirement of causation. See
Br. 39 (“The proper remedy for a violation of the McLaughlin rule is suppression of
evidence seized or statements made after the point at which the hearing should have
been held.”).
Here, by the time the 48‐hour window had elapsed, the state police already
had in their possession much, if not all, of the evidence Pabon now seeks to have
suppressed. Pabon began passing packages containing narcotics approximately
24 hours after he was initially detained, well within the 48‐hour window. The
fact that the state police permitted that period to pass without obtaining a
determination of probable cause therefore cannot have caused their discovery of
this evidence. It is possible that, since some of the bags of drugs took several
days to pass through his alimentary canal, some bags remained inside Pabon
past the 48‐hour mark and were then passed within the period before (as
opposed to after) the judicial determination of probable cause to detain. But
this is not a ground for suppression. For one thing, Pabon does not contend
that this hypothetical possibility actually occurred or otherwise argue this point.
In any event, there is no question that Pabon began passing packages of narcotics
within the first 48 hours of arrest and that his subsequent passage of additional
packages while remaining detained at the hospital was not in any sense the
result of a Gerstein violation. Any causation was therefore attenuated and
suppression would not serve a net social benefit. As a result, suppression of
this evidence on the grounds that the state police officers violated McLaughlin’s
48‐hour rule is not warranted.
B. Gerstein, McLaughlin, and “Unreasonable Delay”
Pabon’s second argument presents a closer question. He contends that,
upon his initial discharge from the hospital, it was clear to the state police that
the available evidence was not sufficient for probable cause to detain, and that
they therefore improperly delayed seeking a determination of probable cause
while they sought further evidence in support of the arrest. Accordingly, Pabon
argues, because the state police used this delay “for the purpose of gathering
additional evidence” to ground their probable cause to arrest, their actions
violated Gerstein’s mandate that he be provided with a “prompt[]” judicial
determination of probable cause. McLaughlin, 500 U.S. at 56. Pabon further
argues that, as a result, suppression is warranted. On the facts of this case, we
disagree with Pabon’s first contention, and hence we need not reach the second.
1. The Status of the Probable Cause to Search Determination
As a preliminary matter, we reject the Government’s contention (noted in
passing above) that Pabon had, by the time he returned from the hospital, already
received the judicial determination of probable cause required by Gerstein. As
the Government points out, Judge Cohen had previously issued the x‐ray search
warrant that allowed the police to bring Pabon to the hospital in the first
instance. The Government argues that the probable cause determination
necessarily made by Judge Cohen in issuing that search warrant amounted to a
judicial determination of probable cause to detain qualifying under Gerstein as
well. Since this warrant issued within seven hours of Pabon’s arrest, the
accompanying determination would, if so qualifying, undercut any
Gerstein‐based claim arising thereafter.
This argument is unavailing, however, because the determination of
probable cause underpinning the x‐ray search warrant did not satisfy Gerstein.10
10 Pabon argues that this determination could not satisfy Gerstein because it was
made ex parte. However, a judicial probable cause determination need not be made
with the defendant present in order to satisfy Gerstein. As Pabon recognizes, Gerstein
itself held that “the Constitution does not require an adversary determination of
probable cause.” 420 U.S. at 123. Pabon offers no justification for his belief that,
though the safeguards of an adversary proceeding are not necessary, the detainee’s
presence is still required. Moreover, such a requirement would not make sense within
the structure of Gerstein, as a Gerstein probable cause determination largely takes the
place of a pre‐arrest warrant determination, at which the target of the investigation is
obviously not present. See Baker v. McCollan, 443 U.S. 137, 143 (1979) (“A person
arrested pursuant to a warrant issued by a magistrate on a showing of probable[] cause
is not constitutionally entitled to a separate judicial determination that there is probable
cause to detain him pending trial.”).
In any case, Pabon’s argument is not a viable one. As the Court’s analysis in
Powell shows, the question whether a jurisdiction has complied with McLaughlin turns
on the timing of the probable cause determination made by the magistrate without the
individual being detained present, not the subsequent preliminary hearing at which he
does appear. See Powell, 511 U.S. at 81, 83–84. In fact, this point is so basic that the
leading treatise on search and seizure law plainly characterizes the Gerstein hearing as
Although the probable cause standard governs both search and arrest, and the
same quantum of evidence is necessary to establish either, see Florida v. Harris,
568 U.S. 237, 243–44 (2013) (citing precedent on both probable cause to search
and probable cause to arrest in articulating the relevant standard for a search);
Zalaski v. City of Hartford, 723 F.3d 382, 389–90 (2d Cir. 2013) (same, in the context
of probable cause to arrest), a determination of probable cause to search is not
the same as a determination that there is, at the same time, probable cause to
arrest, or vice versa. Though the nature of the inquiry required by the two
analyses is the same, the focus of the inquiry is different. The question in a
probable cause to search case – whether the available facts “warrant a person of
reasonable caution in the belief that contraband or evidence of a crime is
present,” Harris, 568 U.S. at 243 (internal quotation marks and brackets omitted)
– becomes, in a probable cause to arrest case, whether the available facts
“warrant a person of reasonable caution in the belief that the person to be
arrested has committed or is committing a crime,” Walczyk, 496 F.3d at 156
an “ex parte probable cause determination.” 3 Wayne R. LeFave, Search & Seizure: A
Treatise on the Fourth Amendment § 5.1(g) (5th ed. 2012). Thus, if Pabon did receive a
timely judicial determination of probable cause, that this determination was made ex
parte is not problematic under Gerstein.
(internal quotation marks omitted). Answering one question does not
necessarily resolve the other.
Here, the Government maintains that the determination that probable
cause existed to subject Pabon specifically to a search also provided, at the same
time, probable cause sufficient to justify holding him for narcotics violations. In
the particular circumstances of this case, that may well be true. But the state
court judge’s determination that probable cause justified the search by x‐ray
required a different analysis than that demanded by Gerstein, and the former
cannot serve as a categorical substitute for the latter. (Indeed, in many cases
where there may be probable cause to search a home, an office, or even a person
for evidence of some crime, there may be little to no reason to believe that the
home’s occupant, the office worker, or even the individual to be searched was
involved in criminal activity.) The judge’s determination that probable cause
existed to search thus did not displace the state police officers’ continuing
obligation to comply with Gerstein.
2. McLaughlin’s “Unreasonable Delay” Framework
Because the state court judge’s determination of probable cause for the
x‐ray search cannot stand in for Gerstein’s determination of probable cause to
detain, McLaughlin’s framework remains controlling, and the question becomes
whether, under that framework, Pabon satisfied his burden of “prov[ing] that
his . . . probable cause determination was delayed unreasonably.” 500 U.S. at
56. For reasons we now explain, we conclude that he did not.
As the Supreme Court has recognized, Gerstein represents a “‘practical
compromise’ between the rights of individuals and the realities of law
enforcement.” McLaughlin, 500 U.S. at 53 (quoting Gerstein, 420 U.S. at 113).
Because “the burden that proliferation of pretrial proceedings places on the
criminal justice system” means that “the interests of everyone involved,
including those persons who are arrested, might be disserved by introducing
further procedural complexity into an already intricate system,” the Court
“stopped short of holding that jurisdictions [a]re constitutionally compelled to
provide a probable cause hearing immediately upon taking a suspect into
custody and completing booking procedures.” Id. Thus, it is not the case that
Gerstein requires “a probable cause determination to be made as soon as the
administrative steps incident to arrest [a]re completed.” Id. at 54 (internal
quotation marks and emphasis omitted). Rather, “Gerstein struck a balance
between competing interests; a proper understanding of the decision is possible
only if one takes into account both sides of the equation.” Id.
Even within the 48‐hour timeframe, however, a probable cause
determination may encroach on a detainee’s right to a prompt and neutral
determination of probable cause because it is “unreasonably” delayed. Id. at 56.
Case‐specific circumstances may, for example, demonstrate that the purpose of a
delay is to avoid – even if temporarily – a magistrate’s neutral probable cause
determination. Delay “for delay’s sake,” for instance, or “motivated by ill will
against the arrested individual,” is inconsistent with the Fourth Amendment,
and hence violates Gerstein. Id. at 56–57. In addition, McLaughlin’s bright‐line
rule is not to be used as a license to detain first, and seek justification in the
ensuing 48 hours. Thus, unreasonable delay includes “delay[ ] for the purpose
of gathering additional evidence to justify the arrest.” Id. at 56
At the same time, McLaughlin does not bar the police from continuing an
ongoing investigation while the arrestee is being held and awaiting a probable
cause determination. In fact, the practical reality of law enforcement is that an
investigation often will be ongoing during the pendency of an initial detention –
a reality that is ultimately protective of both the defendant’s interests in being
free from extended seizure (because the investigation may exonerate a detainee)
and society’s interest in the prompt and efficient investigation of crime. The
period immediately after a seizure can be critical as the police investigate the
scene of a crime, take witness statements, evaluate suspects, and assess the
quality of potential leads. Such investigative efforts can be essential to
developing a careful and detailed picture of the circumstances of a suspected
crime, especially because the quality of this information often diminishes rapidly
with time. 11 Accordingly, neither Gerstein’s “practical compromise,” nor
McLaughlin’s “balance [of] competing interests,” demands that all investigative
activity cease the moment an arrest is made.
Pabon argues that he established before the district court that there was an
unreasonable delay by police in obtaining a magistrate’s determination of
probable cause to arrest after the x‐ray examination failed to produce evidence
that he was body‐packing narcotics. He contends that at this point, “[i]t is
undisputed that the delays were occasioned by Trooper Hatch’s efforts to gain
additional evidence to justify the arrest.” Br. 38. We disagree. Pabon has not
shown that the investigation subsequent to his discharge from the hospital was
for the purpose of buttressing the officers’ probable cause so as to justify the
11 For instance, the accuracy of eyewitness testimony is generally correlated with
its temporal proximity to the witnessed events. See Brandon L. Garrett, Eyewitnesses &
Exclusion, 65 Vand. L. Rev. 451, 468–69 (2012).
arrest. Accordingly, he has not demonstrated a Fourth Amendment violation
under McLaughlin that might, potentially, warrant suppression.
First, as already discussed, the police at all points had probable cause to
believe that Pabon was transporting narcotics.12 And given the accumulating
evidence, Pabon cannot show, as he must under McLaughlin, that the officers’
decision to proceed with their investigation while continuing to detain him –
and, specifically, their decision to request that Judge Cohen issue a warrant for a
CT scan – amounted to unreasonable delay designed to further strengthen the
officers’ probable cause case. Pabon’s evidence shows only that officers took
the reasonable next step in seeking the more‐detailed CT scan given, as the
district court concluded, that “the x‐rays were inconclusive.” Joint App’x 245.
The evidence police had assembled to that point, moreover, fully justified their
efforts to obtain the more accurate scan.
Pabon contends that the fact that Judge Cohen initially denied the state
police officers’ application demonstrates the unreasonableness of the officers’
decision to continue to detain him. Pabon’s argument is essentially a version of
12 To decide this case, we need not resolve whether continuing probable cause to
arrest for the crime to be charged is sufficient to defeat an inference that an ongoing
investigation was designed to permit police to buttress their case before a magistrate.
At the very least, however, the showing necessary to demonstrate unreasonable delay
in such a situation is correspondingly greater.
the same argument made by the Government and discussed above – namely, that
a determination as to probable cause to search is equivalent to a determination
about probable cause to detain. But the mere fact that Judge Cohen determined
in the immediate aftermath of the x‐ray procedure that the available evidence did
not justify issuing a second search warrant for a CT scan does not, under the
circumstances here, support a case for unreasonable delay under McLaughlin.
This conclusion stems, again, from the fact that the inquiries into probable
cause to search and probable cause to detain are different, and are affected by
different considerations, given the Fourth Amendment’s “ultimate touchstone”
of “reasonableness.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Thus, in
determining whether a search warrant for a medical procedure should issue, a
magistrate might reasonably conclude that a bodily intrusion “implicates
expectations of privacy and security of such magnitude that the intrusion may be
‘unreasonable’ even if likely to produce evidence of a crime.” Winston v. Lee,
470 U.S. 753, 759 (1985); see id. at 758‐61 (holding that surgical intrusion to
recover bullet was unreasonable under the Fourth Amendment, based on totality
of the circumstances). Here, where the requested search was medical in nature
and its scope implicated “significant privacy concerns,” see Birchfield v. North
Dakota, 136 S. Ct. 2160, 2178 (2016) (internal quotation mark omitted), the
decision not to issue a second search warrant in the immediate aftermath of the
x‐ray examination simply cannot be equated to a determination that police
lacked a reasonable basis to believe that Pabon was engaged in narcotics
trafficking and was properly detained.
Other factors, moreover, further support the conclusion that Pabon failed
to establish an unreasonable delay in seeking a judicial determination of
probable cause for his arrest. As already noted, Pabon was arrested at around
1:00 A.M. The first search warrant was obtained within seven hours, at 7:50
A.M., by officers working in the early morning hours. Similarly, police sought
the second search warrant within four hours of Pabon’s discharge from the
hospital, and the third immediately thereafter, once the new information from
Dr. Hartmann emerged.
As already noted, these multiple search warrant applications to Judge
Cohen, well within the first 24 hours of arrest, cannot substitute for the
requirement that police making a warrantless arrest obtain a prompt
determination from a magistrate that probable cause exists to detain. At the
same time, these efforts substantially undercut Pabon’s claim that police were
acting unreasonably to delay a judicial examination into the basis for his
detention. Looked at objectively, and in light of the conclusion that the officers
at all times had probable cause to detain Pabon, these applications are instead
most consistent with the proposition that officers were acting with dispatch to
procure the narcotics – narcotics that would not only be important to a later
prosecution (even if unnecessary to show probable cause) but that also posed a
health risk to a detainee in their custody. Particularly where the detainee’s own
post‐arrest behavior was fueling the officers’ conviction that he was
body‐packing drugs, the police conduct here was reasonable, and did not involve
unnecessary delay.
In sum, Pabon has not demonstrated that the state police officers
unreasonably delayed the probable cause determination that Gerstein requires.
Police already had sufficient evidence to support his arrest. When Pabon was
discharged from the hospital after his x‐ray exam, the state police officers had
before them all of the background information grounding probable cause for the
initial arrest, plus all of the information that had developed over the course of
the day. Layering this information together, the police reasonably concluded
that an application for a CT scan search warrant should follow. This warrant
issued well within 24 hours of Pabon’s arrest, and resulted in his consent, upon
medical advice, to ingest laxatives so as to remove narcotics from his body that
posed a serious health risk to him and that also constituted important evidence.
Because Pabon has failed to demonstrate that the reasonable steps undertaken by
police after his initial detention were designed to provide the justification for his
arrest, his claim under Gerstein and McLaughlin fails. We accordingly affirm the
district court’s denial of his motion to suppress the evidence subsequently

* * *

13 Before oral argument was held, Pabon filed a motion to supplement the record
on appeal, which was denied without prejudice to renewal before the merits panel.
Docket No. 24. Although Pabon did not formally re‐file a motion on the docket, he
submitted materials and argued the point in his brief. See Br. 42‐47. Assuming this
constituted a renewal of the motion, given our disposition of this appeal and the
materials’ lack of relevance thereto, the motion is denied as moot.

Outcome: We have considered all of Pabon’s remaining arguments and find them to
be without merit.13 For the foregoing reasons, we AFFIRM the judgment of the
district court.

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