When Do State Cops Count as Federal Cops Under McNabb-Mallory?

November 27, 2012
By Hanging Out with Carl Gunn


  • McNabbMallory doesn’t apply to time in state custody before being passed on to the fed’s.
  • But there’s an exception if the state custody is part of a “working arrangement” between the state cops and the federal agents.
  • Justice Stevens suggested such working arrangements wouldn’t be that uncommon, so push the envelope on this exception.


In my last post, I talked about 18 U.S.C. § 3501(c) and its partial codification of the McNabbMallory rule, requiring suppression because of delay in bringing a defendant before a magistrate judge, subject to the requirement that the delay exceed six hours and not be otherwise reasonable. I mentioned in passing the Supreme Court case of United States v. Alvarez-Sanchez, 511 U.S. 350 (1994), which I argued in front of the Supreme Court in 1994. That case addressed the question of how to treat defendants who were arrested by state authorities – usually because the crime is a state crime as well as a federal crime – and held in state custody for a time before being transferred to the federal authorities for federal prosecution. The Ninth Circuit stood alone at the time in holding that the time in state custody counted toward the six-hour “safe harbor” created in 18 U.S.C. § 3501(c). But the Supreme Court unanimously rejected this position, holding that time spent in the custody of the state authorities did not count toward the six-hour “safe harbor,” at least as a general rule.

Why do I add “at least as a general rule”? Well, that’s the subject of this post. The Supreme Court acknowledged prior case law in which it had recognized an exception to this general rule where there was a “working arrangement” between the state or local authorities and the federal authorities. Anderson v. United States, 318 U.S. 350, 356 (1943), cited in Alvarez-Sanchez, 511 U.S. at 359. Put another way in the majority opinion, the time in state or local custody must be included if the state or local authorities were “acting in collusion with federal officers,” or the defendant can show “improper collaboration between federal and state or local officers.” Alvarez-Sanchez, 511 U.S. at 359.See also id. at 361 (Ginsburg, J., concurring) (quotingAnderson).

The majority opinion did characterize this as a “presumably rare scenario,” but didn’t discuss it much further in light of a district court finding that “there was ‘no evidence’ that a ‘collusive arrangement between state and federal agents . . . caused [respondent’s] confession to be made.’” Id. at 360. Justice Ginsburg was more non-committal, simply noting the lack of evidence “in this case of any ‘improper collaboration’ or ‘working arrangement.’” Id. at 361 (Ginsburg, J., concurring) (citations omitted) (emphasis added). And Justice Stevens openly questioned the majority’s characterization of this “scenario” as “presumably rare.”

[W]hat sort of cooperation between federal and local authorities would remove a case from the category in which the custody is decidedly on state charges alone is a question not before us, and the Court correctly declines to address the matter. Surely, however, cases in which cooperation between state and federal authorities requires compliance with the terms of § 3501(c) are not merely hypothetical examples of a “presumably rare scenario.” And I definitely would not assume that § 3501(c) will never “come into play” until a suspect is arrested on a federal charge.

Id. at 362 (Stevens, J., concurring in judgment) (citations omitted).

This suggests it’s worth exploring and pushing the envelope on this issue. Certainly there’s some cases out there where local cops make the arrest in the heat of the moment and everyone knows from the start – or at least well before the actual transfer of custody – that the case is going to go federal rather than state. The Court found the “working arrangement” in theAnderson case cited in Alvarez-Sanchez based on the facts that (1) the defendants there – miners engaged in “one of those obdurate mining strikes” (those were the days) and suspected of dynamiting some Tennessee Valley Authority power lines,Anderson, 318 U.S. at 352– were never taken before a state judicial officer as required by state law; (2) “agents of the Federal Bureau of Investigation arrived in [the town] to assist in the investigation”; and (3) the defendants “were questioned by the federal agents intermittently over a period of six days during which they saw neither friends, relatives, nor counsel.” Can’t you envision similar cases (maybe even cases you’ve had?) where our clients get arrested by local officers but are never taken before a state judicial officer, federal agents “arrive[ ] . . . to assist in the investigation,” and the federal agents then question the defendant at least once or twice that day or the next day, if not intermittently over a period of six days? See alsoJones v. United States, 342 F.2d 863 (D.C. Cir. 1964) (en banc), in which the court found the McNabbMallory rule applied where the defendant was arrested on state charges, but state officials agreed to let a federal officer take custody under an outstanding federal warrant, and the federal officer arrived to take custody but questioned the defendant before taking him from the state jail.

Consider also the negative implication of other cases rejecting “working arrangement” arguments – especially the pre-3501(c) cases that Congress would have known of at the time it passed the statute (remember the maxim that statutes should be construed in light of the presumption that Congress knew of the case law that existed at the time it passed the statute, see, e.g., United States v. Alvarez-Hernandez, 478 F.3d 1060, 1065-66 (9th Cir. 2007)). In a Supreme Court case – Coppola v. United States, 365 U.S. 762 (1961) (per curiam) – in which the Court affirmed in a one-paragraph opinion, the Court explained that it had initially “believ[ed] that [the case] presented a question under Anderson” but had concluded after oral argument and a fuller examination of the record “that the particular facts of the case” were not controlled by Anderson. Coppola, 365 U.S. at 762. Those facts included the fact that the state officers in that case had pursued and arraigned the defendant on state charges and simply cooperated with the federal officials’ investigation in addition, see United States v. Coppola, 281 F.2d 340, 344-45 (2d Cir. 1960) (en banc), which was a fact that the government had emphasized as a critical fact in its Supreme Court briefs, seeBrief for the United States, Coppola v. United States, No. 153 (O.T. 1960), 1961 WL 101751, at *35-36, 67.

There similarly had been a state arraignment or sentence in most of the pre-3501(c) court of appeals cases. See, e.g., United States v. Hindmarsh, 389 F.2d 137, 141, 146 (6th Cir. 1968);United States v. Ardner, 364 F.2d 719, 720 (4th Cir. 1966);United States v. Thompson, 356 F.2d 216, 219, 225 (2d Cir. 1965); United States v. Gorman, 355 F.2d 151, 156 (2d Cir. 1965); Cram v. United States, 316 F.2d 542, 543, 544-45 (10th Cir. 1963). And many of those courts emphasized this factor in their opinions. See, e.g., Barnett v. United States, 384 F.2d 848, 858 (5th Cir. 1967) (holding that “the existence of a legitimate state investigation for a suspected state offense is essential to a valid purpose, and it is important whether or not state officials will proceed with further action on the state charge independent of the outcome of the federal investigation” (emphasis added));Hollingsworth v. United States, 321 F.2d 342, 350 (10th Cir. 1963) (noting local officers “were concerned only with state offenses and were not acting for or in behalf of federal officers, pursuant to any working arrangement or otherwise” (emphasis added)). See also Burke v. United States, 328 F.2d 399, 404 (1st Cir. 1964) (Aldrich, J., dissenting) (distinguishing Coppola as a case “where the defendant was held on bona fide state charges”).

Keep in mind also that the defense probably has the burden of proof. Post-Alvarez-Sanchez cases rejecting a “working arrangement” argument have held that the defendant has the burden of showing the collaboration or collusion that the Court noted was absent in Alvarez-Sanchez. See, e.g., United States v. Michaud, 268 F.3d 728, 734 (9th Cir. 2001). So think about doing everything you can to affirmatively make as complete a factual record as possible if you’re making this argument, including both case-specific collaboration and more general express or implied agreements (such as a standard practice of passing certain cases on to the feds).

In any event, this issue is out there to think about in those cases where state or local officers make the initial arrest but pass the defendant on to federal officers without ever taking the defendant to state court. Don’t stop your statements suppression inquiry with Miranda and voluntariness, and don’t stop your McNabbMallory inquiry with physical federal custody.