County of Riverside v. McLaughlin

Justice Scalia in his dissent noted that the Bill of Rights (the first ten amendments to the Constitution) had already achieved a "balancing" between the competing concerns of protecting public safety and avoiding prolonged detention. "It is the function of the Bill of Rights to preserve that judgment, not only against the changing views of Presidents and Members of Congress, but also against the changing views of Justices whom Presidents appoint and Members of Congress confirm to this Court."

Scalia noted that in Gerstein, the Court relied upon the common law understanding that the period of warrantless detention must be limited to the time necessary to complete the arrest and get a magistrate's review. Scalia felt that the idea of flexibility and experimentation referred to the nature of the hearing and not to its timing. He criticized the majority's idea of "balancing." Scalia noted that the purpose of the Fourth Amendment was "to put this matter beyond time, place, and judicial predilection." A determination to deprive someone of his or her liberty should be made, not according to a schedule that suits the state's convenience, but as soon as an arrest is completed and a magistrate found. Scalia noted that no more than 24 hours is needed for this process and that most federal courts and many state courts have applied a 24-hour limit.

Scalia summed up his dissent by stating, "One hears the complaint, nowadays, that the Fourth Amendment has become constitutional law for the guilty; that it benefits the career criminal (through the exclusionary rule) often and directly, but the ordinary citizen remotely if at all." Scalia felt that the majority's opinion in this case reinforces the public's view of the Fourth Amendment and does not benefit its intended beneficiaries, the innocent. He went on to criticize the exclusionary rule and lament the lack of protection for those presumed innocent. "While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty, we today [in the majority's decision in this case] repudiate one of its core applications so that the presumptively innocent may be left in jail."