i convinced another panel of this court to affirm the holding of a district court judge in hawaii that the city and county of honolulu had a policy and practice of holding people for up to forty eight hours and focusing on that forty eight hour deadline rather than releasing people who were arrested without warrants when it was determined that the administrative steps were completed so what's the evidence of anim this case all i see is that there was some sort of a snafu within the court system that delayed the processing anything more than that oh yes it is in the record you know yes if you see it repeatedly my client was allowed to be referred to by witnesses you know arguments as a major drug dealer in hawaii and they made that argument repeatedly and then argued to the jury that because he's a bad guy he's lucky that he only served two days and he was never actually prosecuted that's the enemy i was focusing on the forty eight argue for forty eight hours are you my thought you were leading with that and if i came across to you i apologize i would was referring to the specifics as far you hours is concerned i mean basically there's been an evolution in gerstein versus few the supreme court held for the first time that a person who is arrested without a warrant has to be promptly taken before a magistrate they did not define promptly the next major case in the area was riverside and he says four is the supreme court is concerned that in riverside the supreme court simply tinkered with what gerstein versus few had said and clarified that the first forty eight hours there would be a presumption of reasonable this but after that the presumption changes but the decision in riverside did not already here it was forty three hours it was either forty five or forty seven hours to pinehaven the at least it's under forty eight it's under forty eight that's what i'm still i don't think you've answered my original question and that is what is the evidence of animus in other words some sort of intent by the police in this case deprive him of the problem here for first of all my client was arrested at his house with a substance that was delivered to him he was taken to the honolulu police department and was held as you heard for that period of time they made no effort to question him during that period of time that they may have probable cause i guess the document after it with the document is called and they made it out right after they picked him up is that correct yes but they didn't take it to a judge and get a determination of probable cause and then when they got so so they had a position that they had probable cause to hold him and then when they finally got it to the judge or finally got to the judge whatever we don't know what caused the delay they hadn't made any changes to it so the concern that was expressed in my cloth and in our case  there somebody is being held without probable cause while the police are out they sickly building up their case and let me most of the case here yesterday was well they didn't change the problem the information they had to support big buyers of other drugs to build a case against have any of that submitted in the the application for the judicial determination of probable cause secondly why doesn't that cause a disconnect in your case because they're not precluded from doing further investigation what they're precluded from doing is gathering things to just try the problem cause what they've already turned in their application for probable cause but the key thing here is that they said that they had to help hold him because they had to do laboratory testing  remember that's what they said and the evidence that was presented through the person who was to do the laboratory testing was that she couldn't do it and she told them that because she didn't have a sample to test and to compare to what they seized so no matter what happened in that forty eight hours or four days or five days or seven days it would have been impossible to complete the laboratory testing and the police knew that from the outset i think it finally get the made a preliminary determination but that she didn't get the sample that she needed to make a actual comparison until some weeks later she testified i reported my findings to officer lou around ten in the morning now they continue testing after that but there was information that was communicated i understand there was some information but again in this case first of all if you go back to what he was arrested for he was arrested for a drug that questionably illegal at that point in time it was not illegal under federal law and we contend that it was never illegal under state law either because of the manner in which they just posted a notice on a bulletin board and that's the way they hate your cover move into another issue which is fine but that really doesn't satisfy the questions have been posed for the first use who should be aware as you move elsewhere we still got that first as you said in there i'm talking about unreasonable this in the first place what i'm suggesting to you if this was a sloppy operation they believed my client was a major drug dealer they arrested him and they held him for we believe forty seven hours we believe that holding him for that period of time was unreasonable per se under the circumstances of this case and that the judge should have determined that as a matter of law what about if you're going to apply the percent rule the percent rules such as it is is forty eight hours and this was less than forty eight hours so it seems to me the obligations on your side was stablish that there was some sort of animus or some purpose will detention year yes i'm still looking for it in the record i haven't found it yet well again i think you look for in the record by the way they characterized him as a major drug dealer or though that was never any evidence of that you look at it i guess one question i had reading the record was you want to suggest that there was some benefit to the police for holding him for that period of time though based on the record there wasn't any benefit in in creating their case for probable cause so why was there a benefit for holding him rather than releasing him because they could have gone and their investigations into the search warrants for the stores and the like so what is your theory of why they would have helped him for extra time because they were punishing him they were incarcerating him in an isolation cell with no contact with the external world for two days for the purpose in your view was punishment absalom they were they they had personal animus a guess absolutely and again their evidence and the record of animists or punishment i think that and it was comes out in every other word that was uttered to the judge about what a bad criminal this guy was and how lucky he was never to be charged the jury wasn't persuaded well the jury wasn't persuaded because the jury really had no guidance as to what constituted a reasonable detention after the administrative steps were completed in this there's no point to holding this guy after the initial book initially booked him and he cooperated in every respect he could have been sent home at that point but the police don't do that and again if you look at major robinson's testimony there were two major components to that one was how this guy is a really bad guy and we had a duty to keep him off the streets that's what he said and the other was that i have promulgated a written policy which says that once we get a determination of probable cause we can keep him and we can continue to investigate in order to build a case against him well in the first place where they had not had a determination of probable cause they didn't get that until just before they released him so all of that detention up to that point was questionable and under the circumstances of this case i don't believe the constitution under the best of circumstances allows for a citizen to be arrested because the police think he's a bad guy to be held in custody for almost two days and then to be released and never even charged if if i'm correct  trial that you're appealing correct no we're also appealing from the denial of the motion for summary judgment and for the motion for a directed verdict which we made on the ground of the unreasonable this of it the of the detention all three of those motions echo the same issues we also have problems with the jury we have problems with the instructions about not admitting him to bail or even considering bail and there are a couple of other issues which i don't  that that your client didn't carry his burden of showing that he couldn't be detained on or yes and forced upon that i argued to you that after the administrative steps were completed he was booked he was photographed fingerprinted his know there was no reason why they could not have interviewed mr smith they wanted to conduct searches and arrest people at his stores they wanted to interrogate those people to see if they had any evidence against mr smith and they never developed a case now i would ask you to contrast that to what happened there's evidence in the record with regard to that when the fence executed a search warrant at his house they went in they searched they completed they said thank you very much they took what they had and he went back and they investigated and he never heard from them again but this process in honolulu deprives citizens of the most basic protections and in this case my client was arrested his property was seized and held for months his truck his money and the police basically did everything he could to make his life miserable without any basis for ever charging him with a crime to save some time for rebuttal i would like to save two minutes but i'll save the additional seconds appeal presents one salient issue and a host of several minor issues for the court's consideration the chief issue for the court's concern is a period of mr smith's detention and whether as mr smith contends there was no basis for the jury's determination that mr smith's detention was reasonable as this quarter is aware first and foremost a jury's a termination is reasonable because of the presumption that the city's entitled to where we're dealing with a period less than forty eight hours and i understand that there's been some contentions some arguments made this morning and there were arguments made in the parents brief that the city may have exceeded forty eight hours that was not the testimony  trial in fact that the trial court judge referred several times to forty six hour and ten minute period which a plaintiff was held for and there was no objection to that or no objection to it being referred to as a stipulated period  it was forty six hours and ten minutes for the entire time he was held in custody and i believe the reason that they needed to hold him for that amount of time i mean all of the other cases there was either processing there was a delay because they  explaining why they detained him for that extra period of time other than this mysterious we don't know why but somehow the problem caused a termination didn't get to the judge ok so there's two issues there your hon they chose to hold him for the period of time and why the g d p see cut signed when it did and you're right there is some mystery as to why that occurred when it when and why it was signed when it was  the officer testified that he promptly saw a field that form out pon returning to the police station and that he submitted it where it needed to go for the next day's court run in the h p t sense these things over twice a day with  morning court run in the afternoon court run and so should have gone over the following day with a morning court run but no one knew why and there wasn't an investigation of why so there was no evidence presented on why so all we know is somehow for some reason they didn't get signed for two days that's correct your honor is there a need to hold them until it is signed well your honor why they held the particular plaintiff in this case was they wanted  to they want to tear interrogate him but they also wanted to have all the evidence when they did so it's a regular interrogation technique you don't want to be caught by surprise by something that the the the suspect says when you inter results of the other materials inside of his apartment is also being positive for the illegal drug so what was this very very important information that the police didn't have that they absolutely needed to get before they interrogated him first of all your  preliminary determination with respect to the items recovered from his property both in his carport in his home office i think he only got a preliminary determination on one of those substances and that was the second day on the thirteenth  secondly why don't they have to keep him after that well they were still waiting to make sure that the the substance the original substance the best best salts and b p was in fact m t v they were waiting for the sample to come in it had been ordered on the seventh they were expecting it any day in fact did come on the thirteenth the the technician put it in the machine for testing that evening i came back the following morning substance and right after that she testified that it was around ten am they had already done something but interviews of the plaintiff's employees at that time i think they had one other interview after that and then they interviewed plaintiff and he promptly invoked his fifth amendment right and with you know he was held for two days for no discernible reason i mean in the end i'm still puzzled because of the evidence that was submitted to the court through the application for the determination of probable cause consistent evidence they had at the beginning and you argue that he wasn't held for the purpose of establishing probable cause it's to be hard to figure out then why he was held they had with i thought they needed they turned that into the court for some reason it took a couple of days to get back in the mean time they're holding him in the hopes that maybe he'll be able to interrogate him except if he's got the right to not to testify i'm still puzzled as to what's the point of keeping him locked up for the extra hours they're there doing the testing your honor and they're doing their necessary paperwork they're trying to figure out doesn't take the paperwork is done if the j d p c has been submitted is not  you're ok so so that's not on the first day but they had they had a number a lot of evidence to process and their reports to write and they had to to get an understanding of what crimes were actually being committed they didn't know until they arrived at plaintiff's property exactly the extent of the dangerous drug first charge until they until they got there and when they got there they found it was a much larger  enterprise than what they had initially understood it to be so they wanted to to thoroughly understand it before they interrogated playing it i'm having trouble with the time sequence here he was arrested for one one forty on the twelfth and apparently there was a an application signed that day now normally he would have appeared before a judge the following morning would he not would not be the trip through traditional typical way of handling this i don't know about his appearance your honor definitely the g d p would have gone the following day that's correct but then  why wasn't he released them on that same day the following day it wasn't it wasn't released until the third day correct the fourteenth at eight o'clock eight thirty three in the morning each of the eight o seven in the morning the i think what the officers were trying to decide is what charges to charge him with they originally believed that was the one charge having to do with bacile it's what they are but then they came across all these other charges that were involved so they wanted to confer with the prosecutor to figure out what charge was going to take place and part of that was was what evidence they were going to get from the interviewing plaintiff himself which never really took place because this probably could have been anticipated he elected not to say anything well he elected not to your honor but i mean police don't know exactly what's going to happen in the other two employees opted to to make statements to the police to the property seizure instruction i think the the judge was correct in characterizing this as somewhat of a surprise because plaintiffs were trying to argue a  property excessive property detention claim and the court's characterization of it as a surprise is correct but really the better ground for this versed in that your honor because it really wasn't an issue at trial plaintiffs didn't call the property forfeiture of property forfeiture officer and there was no evidence of any policy practice or forfeiture law is is that correct or was there there was an initial a status conference that was called in which they had threatened a preliminary injunction but that that matter resolved early in the case and if the court looks at the motion for summary judgment there was ever there was absolutely no discussion in place opposition to our motion for judgment on the pleadings about any property seizure claim with respect to the the instruction on the right to bail your honor as the court's aware the federal law on this  hundred three cause of action to bail here because over vs pierce has two requirements one that the ruling or the legal holding contain mandatory language into that include particular standards so with respect to specifically said with respect to particular i standards there's no room for discretion so obvious o b i was dealing with a situation where a person was held over one hundred twenty days one hundred twenty days there were two state statutes that said it was unlawful to hold somebody thirty six hours of without raining them and unlawful to hold somebody over fifty or sixty days like i cannot recall without bringing them to court not an absolute right but rather a right to release without unnecessary delay upon payment of bail so this case we're talking about a class a felony which first of all is not automatically entitled to bail it's considered a serious offens distinguishable from a misdemeanor you also have a number of policy arguments peace behind misdemeanor rights to bail as opposed to rights to bail in serious felonies because oftentimes if a person is not allowed bail out they're going to be serving a lot prompted the issue stem from his views on the case rather them physically threatening what you we do with that your honor i  believe the overwhelming majority of the testimony was because he had physically threatened one on one through juror and one and yelled at another juror and the testimony was in fact that  he had personal issues with with the jurors in addition to in addition to his views i don't believe well but the problem is if it is based on his views then that  is subject to very serious concern here well your honor we had a hearing on this and both counsel were allowed to cross examine or examine the jurors and the court convicted zone questioning after that hearing but if i don't believe that there is a sufficient basis in the record for i understand the court's concern but i don't i don't believe there's sufficient basis in the record for that concern and even if there was pl stipulated for to the dismissal of that your point there anyway yes you're on  and seem to have used all my time thank you very much  to let me let me address your initial question to counsel with regard to the procedure in hawaii and individual who's being held who was arrested without a warrant is never taken to court until that person is charged now they don't charge him because once they charge him then bail is set so that's why this device is so dangerous the person is held there incommunicado is not taken to court and there is no no procedure whatsoever to set bail i fully understand that my sure your concern the can the problem i have is we're where do you draw the line and i'm looking for actual evidence in the record that this delay was caused by some animists by the police department or some evidence of actual interference i think you can find that in the trial transcripts and to the belief on the part of the police th never charged was by their belief a major drug dealer and they needed to keep him but is the belief enough as it is and on the record that's what more yes it is that's what motivated him and major robinson's testimony on that point i think is quite clear and i would urge you to read that the as compelling so far as the jury is concerned well apparently not and again that goes back to the question about why a jury decided the reasonable size of detention i think that's a legal issue that should have been decided by the judge i want to mention a couple more things just quickly first of all i don't agree that there was any justification for the court not to give the bail instruction and if you look at the in law case which we cited to you which was decided by judge k in similar circumstances involving a hold of this sort judge case said the right to bail should have been implicated immediately and that's not a question of statute that's a constitutional right both are really and under the state constitution and bail was never afforded to my client and never is afforded to people who are being held under these circumstances i lastly i would like to argue about the jury situation because i think that was  r and i think basically we didn't know what we were dealing with we were at a hearing where the judge called and put jurors on the stand and to be honest with you i was very wary about questioning any of them and we didn't really know what happened until the person who had been excuse to by the way was the foreperson contacted my office and explained what had happened though there's no declaration from him there's a declaration from me as to what he told me when we were asking the court to conduct a post trial evidentiary hearing and the court declined to do so if i could just i my time has expired i just want to make one of the point and i want to refer you to some language from the who want from the united states supreme court in a case in title manual versus city of joliet which is decided ten months ago and in that case the court said the court looks to the fourth amendment to analyze and uphold a claim that a pretrial restraint on liberty is unlawful unless a judge or grand jury first makes a reliable finding a probable cause the fourth amendment a stablish is the minimum constitutional standards and procedures not just for a rest but also for an suing detention that is the law and in this case my client was arrested whether there was probable cause or not we might argue about given the nature of what he was arrested for but certainly there was no probable cause for the prolonged detention and there was no dish of determination for much of that time while he was being held thank you for your indul