If the hearing officer determines that probable cause exists and the offender has committed the alleged violations, the receiving state may detain the offender in custody pending the outcome of decisions in the sending state. Within 15 business days of receipt of the probable cause hearing report, the sending state must notify the receiving state of its intent to (1) retake the offender, or (2) take other action. See Rule 5.108(f). The sending state must retake an offender within 30 calendar days of the decision to retake. Therefore, it is conceivable that a receiving state may have to hold an offender for up to 45 days after the hearing officer issues a report. If held in custody by the receiving state, the offender cannot be admitted to bail or otherwise released from custody. See Rule 5.111. See also, the discussion at § 4.4.3. The cost of incarceration is the responsibility of the receiving state. See Rule 5.106.

The rules do not impose any timeframe for initiating the probable cause hearing on the receiving state. There are no time periods specified for holding a probable cause hearing or for providing notice and, therefore, no due process violation per se. See People ex rel. Jamel Bell v. Santor, 801 N.Y.S.2d 101 (App. Div. N.Y. 2005). However, Rule 5.108 imposes mandatory timeframes on the sending state after the issuance of the hearing officer’s report. The failure to comply with these timeframes, could give rise to challenges to the incarceration in either the sending or receiving states. See Williams v. Miller-Stout, No. 205-CV-864-ID WO, 2006 WL 3147667, at *1 (M.D. Ala. Nov. 2, 2006). (person named as custodian in a habeas action and the place of a petitioner's custody are not always subject to a literal interpretation; jurisdiction under § 2241 lies not only in the district of actual physical confinement but also in the district where a custodian responsible for the confinement is present).

If the hearing officer fails to find probable cause to believe the offender has committed the alleged violations, the receiving state must continue supervision. See Rule 5.108(g). The offender must be released if in custody. See Rule 5.108(g) (2) & (3). Additionally, the receiving state must notify the sending state of its determination at which point the sending state must vacate any warrant it has issued. Likewise, the receiving state must vacate any warrant it has issued.

In sum, offenders subject to retaking are entitled to a probable cause hearing only in the circumstances mandated under Gagnon and Morrissey and codified by the Commission’s rules. This right cannot be waived unless accompanied by the offender’s admission of having committed one or more of the violation(s). See Rule 5.108. This rule requires that an offender shall be afforded the opportunity for a probable cause hearing before a neutral and detached hearing officer (in many states a judicial officer but not necessarily so) in or reasonably near the place where the alleged violation occurred. This hearing shall have the basic elements of due process and fundamental fairness, yet does not have to rise to the level of a full adversarial hearing. Offenders may be entitled to appointment of counsel where warranted by the particular facts and circumstances of the case. A determination by a sending state that an offender violated the terms of supervision is conclusive in proceedings in the receiving or asylum state so long as fundamental principles of due process were afforded by the sending state. If the critical determinations are met at the conclusion of a hearing in the receiving state and the offender is not subject to further criminal proceedings in that state (or an asylum state), the offender may be “retaken” by sending state authorities, which are permitted to return the offender without interference from authorities of any ICAOS member state.

It is important to maintain the distinction between a probable cause hearing and a retaking hearing. Under the Compact, any sending state has the right to enter any other member state and retake an offender. Therefore, Rule 5.108 applies only in circumstances where the sending state intends to use violations in another state as a predicate for revocation of the offender’s conditional release. Neither Rule 5.108 nor the Gagnon and Morrissey decisions require a probable cause type hearing in all circumstances of retaking. See Johnson v. State, 957 N.E.2d 660 (Ind. App. 2011).

For example, in Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976), the court held that the scope of review in the receiving state in a retaking proceeding was limited to determining (1) the scope of the authority of the demanding officers, and (2) the identity of the person to be retaken. This principle applies in circumstances where the violations forming the basis of retaking occurred in a state other than the state of the offender’s incarceration, e.g. a determination of probable cause by a sending state. In this context, it is sufficient that officials conducting the hearing in the state where the offender is physically located are satisfied in the face of any documents presented that an independent decision maker in another state has determined that there is probable cause to believe the offender committed a violation. Cf., In re Hayes, 468 N.E.2d 1083 (Mass. Ct. App. 1984). Such a determination is entitled to full faith and credit in the asylum state and can, therefore, form the basis of retaking by the sending state without additional hearings. Id. The offender is entitled to notice. The hearing may be non-adversarial. The offender, while entitled to a hearing, need not be physically present given the limited scope of the proceeding. Id. Cf., Quinones v. Commonwealth, 671 N.E.2d 1225 (Mass. 1996) (juveniles transferred under interstate Compact not entitled to a probable cause hearing in Massachusetts before being transferred to another state to answer pending delinquency proceedings when the demanding state had already found probable cause); In re Doucette, 676 N.E.2d 1169 (Mass. Ct. App. 1997) (once governor of the asylum state has acted on a request for extradition based on a demanding state’s judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state; a court considering release on habeas corpus can do no more than decide (a) whether documents are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive).