If the hearing officer determines that probable cause exists and the supervised individual has committed the alleged violations, the receiving state may detain the individual 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 supervised individual, or (2) take other action. See Rule 5.108(f). The sending state must retake a supervised individual within 30 calendar days of the decision to retake. Therefore, it is conceivable that a receiving state may have to hold a supervised individual for up to 45 days after the hearing officer issues a report. If held in custody by the receiving state, the supervised individual 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 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 a 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 does not find probable cause that the supervised individual committed the alleged violations, the receiving state must continue supervision. See Rule 5.108(g). The supervised individual must be released if they are 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, supervised individuals 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 supervised individual’s admission of having committed one or more of the violation(s). See Rule 5.108. This rule requires that a supervised individual 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. Supervised individuals may be entitled to appointed counsel based on the specific facts and circumstances of their case. A finding by the sending state that a supervised individual has violated the terms of supervision is generally conclusive in proceedings in the receiving or asylum state, provided that fundamental due process rights were observed by the sending state. If the required due process standards are met during a hearing in the receiving state and the supervised individual is not facing further criminal charges in that state (or an asylum state), the sending state may "retake" the individual. This allows sending state authorities to return the individual without interference from 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 a supervised individual. 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 supervised individual’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 supervised individual’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 supervised individual 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 supervised individual 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 supervised individual is entitled to notice. The hearing may be non-adversarial. The supervised individual, 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).