May a Magistrate Conduct an Initial Appearance at a Hospital?

Sometimes a defendant is injured prior to or during arrest. When the injury is serious, the defendant may need to go directly to the hospital. May a judicial official, such as a magistrate, come to the hospital to conduct the defendant’s initial appearance? A federal magistrate judge did just that for Dzokhar Tsarnaev, the Boston Marathon bomber, and I’m told that some North Carolina magistrates have occasionally done the same.

How does this come up? G.S. 15A-501 requires that an officer “take the person arrested before a judicial official without unnecessary delay” for an initial appearance. Because of that statutory mandate, and because arresting agencies generally are responsible for maintaining custody of hospitalized arrestees until the initial appearance takes place – a task that may occupy personnel and consume other resources – arresting officers sometimes ask magistrates to conduct initial appearances in hospitals. (Alternatively, officers sometimes “unarrest” suspects who are admitted to a hospital, or simply leave them there under the watchful eye of hospital staff. I doubt that the former practice is lawful and the latter raises liability concerns, but those issues are beyond the scope of this post.)

What’s the law? There’s very little authority on the permissible location of initial appearances in North Carolina. In the impaired driving context, there is a specific statute authorizing magistrates to conduct initial appearances away from the courthouse: G.S. 20-38.4 states that “[a] magistrate may hold an initial appearance at any place within the county and shall, to the extent practicable, be available at locations other than the courthouse when it will expedite the initial appearance.” But that provision was enacted as part of the 2006 DWI reforms and is part of Article 2D of Chapter 20, which by its terms applies to “the investigation and processing of . . . implied-consent offense[s],” G.S. 20-38.1, so I don’t see it as authorizing initial appearances away from the courthouse more broadly.

There’s no comparable provision in the general initial appearance statute, G.S. 15A-511. It simply doesn’t address the location of the initial appearance at all. I can imagine an argument that the lack of any geographic limitation in G.S. 15A-511 allows a magistrate the flexibility to conduct an initial appearance at a hospital. On the other hand, my colleague Jessie Smith points out on page 20 of her book Criminal Proceedings before North Carolina Magistrates that the express authorization in G.S. 20-38.4, combined with the lack of a similar provision in G.S. 15A-511, may indicate a legislative intent to allow out-of-office initial appearances only in impaired driving cases.

The law is clear regarding the main alternative to conducting an initial appearance in a hospital, which is waiting until the defendant is released from the hospital and then promptly bringing him or her to the magistrate’s office for an initial appearance. If a magistrate declines to conduct an initial appearance in a hospital and the appearance is therefore delayed, the delayed appearance is justified and is not a violation of the prompt initial appearance rule. See State v. Portillo, ___ N.C. ___, 787 S.E.2d 822 (2016) (stating that a three-day delay between arrest and initial appearance due to the defendant’s hospitalization was permissible).

What have other jurisdictions said? It seems that courts across the country agree that delaying an initial appearance due to a defendant’s hospitalization is permissible. See, e.g., United States v. Charleston, 2016 WL 7422685 (N.D Ga. Nov. 21, 2016) (unpublished) (defendant’s statements, made during a three-day delay between arrest and initial appearance, were not subject to suppression as the delay was medically necessary; the defendant had been shot by officers and required medical treatment at the hospital; the opinion notes that officers asked a magistrate judge to conduct an initial appearance at the hospital and the magistrate judge had “declined that unusual procedure”); State v. Brown, 310 P.3d 29 (Ct. App. Ariz. 2013) (defendant’s initial appearance was delayed by more than a week; this was excusable because the defendant had been shot and the delay was based on a “need to provide the accused with medical treatment”; the opinion collects cases from other jurisdictions, uniformly reaching the same conclusion).

I couldn’t find anything directly addressing whether a judicial official may conduct an initial appearance at a hospital. I did find one case concluding that a magistrate is not required to do so, and suggesting that it may not be advisable for a magistrate to do so. See United States v. Murray, 197 F.R.D. 421 (S.D. Cal. 2000) (a hospitalized defendant filed a motion requesting an initial appearance in the hospital; the court ruled that “hospitalization is presumptively a reasonable delay in the process”; that a court is “not required to provide [an initial appearance] at a hospital for a hospitalized defendant”; and that conducting an initial appearance in a hospital is “dangerous at best” because questions may arise regarding the defendant’s competence, medications, and the like).

The bottom line. Based on the authorities cited above, I don’t think that it is settled law that a magistrate can never conduct an initial appearance in a hospital. Such hearings are usually brief and relatively informal, and from a due process standpoint likely could be conducted adequately away from the courthouse.

However, I don’t think that a magistrate is ever required to go to a hospital to conduct an initial appearance. And it seems to me that magistrates should be very cautious about doing so, given the lack of legal certainty, the heightened likelihood that a hospitalized defendant with not be competent to participate in a hearing, and the risk of getting caught up in a dispute between the arresting agency and the jail/sheriff over who bears the responsibility for the costs of keeping the arrestee in custody. This may be a good topic for magistrates to discuss with their chief district court judges.