dissenting.
I dissent. Based on my examination of the record tendered to this Court on appeal,1 the jury’s verdict was clearly contrary to the evidence. In short, there simply is no evidence to justify Grooms’ nine-day war-rantless incarceration at the hands of Police Officers Férvida, Call, and Fish. In concluding that the Police Officers sustained their burden to establish a justification for failing to take Grooms before a magistrate, the majority has mistakenly relied on an inaccurate portrayal of the facts surrounding Grooms’ incarceration.
The record reveals the following sequence of events with respect to Grooms’ claim that he was falsely imprisoned by the various members of the Elkhart County Police Department in 1974:
(1) December 2, 8:00 P.M.: Grooms placed under warrantless arrest and “booked” for preliminary investigation of armed robbery; Grooms confined at Elkhart County Security Building.
(2) December 4, 6:00 P.M.: Attorney Virgil discusses his representation of Grooms with the Prosecuting Attorney; the two agree that “Grooms would be given a polygraph examination and if the polygraph examination *413absolved Mr. Grooms from the murder from [sic] which he was being investigated, he would not be charged with murder and there would be no charges placed against him concerning an armed robbery for which he was being investigated.” 2
(3) December 5, 2:00 P.M.: Attorney Virgil again discussed the above arrangement with the Prosecuting Attorney.
(4) December 5, 2:00 A.M.: Attorney Virgil conversed with Grooms for the first and only time during the period in question. Grooms agreed to give a statement on the armed robbery and murder under investigation — and to take a polygraph exam regarding his statement.
(5) December 5, Afternoon hours: Grooms transported to Chicago, where he underwent Polygraph exam; Grooms returned to confinement at Elkhart Security Center.
(6) December 10: Polygraph results are “negative.”
(7) December 11: Grooms arraigned on first-degree murder charge.
The record also reveals that on December 2, 3, and 4, Officers Fish and Férvida questioned Grooms regarding his involvement in the two offenses. While the evidence indicates that the parties disagreed whether the two officers had advised Grooms of his “Miranda ” rights prior to each interrogation, it is uncontroverted that neither Fish nor Fér-vida (nor any other person) ever informed Grooms of his right to be taken before a magistrate. In addition, it is undisputed that Attorney Virgil did not agree, either orally or in writing, that his client Grooms could be restrained without appearing before a magistrate.
The majority’s conclusion that the jury was “entitled to determine that Grooms, represented by competent counsel, intelligently waived his right to appear before a magistrate . . .’’is apparently based on Grooms’ consent to take the polygraph examination. The record reveals only that Grooms agreed to take the examination upon the condition that he would not be charged with murder or armed robbery if the results supported his statement denying his involvement; there is absolutely no evidence to indicate that Grooms agreed to remain incarcerated or to forego his right to appear before a magistrate pending the outcome of the exam.3 The evidence does not even support an inference that Grooms “intelligently waived” his right to appear before a magistrate.
Furthermore, while I would reject the contention that attorney Virgil had the capacity to waive his client’s right to appear before a magistrate, it would be implausible to suggest that Virgil’s conversations with the Prosecuting Attorney could serve that purpose here. At the time those conversations transpired, Grooms and Virgil had yet to make their initial contact regarding Grooms’ incarceration and the pending investigations. Those discussions are irrelevant to our consideration here — Virgil could not decide for Grooms what he had not discussed with Grooms.4
I am unable to find a scintilla of evidence to support the jury’s conclusion that the Elkhart County Police Officers were justified in imprisoning Grooms for nine days without a warrant and without taking him before a magistrate. At the same time, I am unwilling to ignore the constitutional *414ramifications of the police practices involved here.
The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution guarantee to the citizens of this state the right to be “secure in their persons” against unreasonable seizures by their governments. These constitutional provisions, of course, have never been interpreted to preclude the use of the warrantless arrest. See, e. g., Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Hadley v. State (1968), 251 Ind. 24, 238 N.E.2d 888, cert. denied, 394 U.S. 1012, 89 S.Ct. 1629, 23 L.Ed.2d 39 (1969). The constitutional provisions have been construed, however, to require that once a person’s liberty is deprived through the vehicle of the warrant-less arrest, he or she must be taken — without unnecessary delay — before a neutral and detached magistrate in order to determine whether probable cause for the deprivation of liberty exists. Gerstein v. Pugh (1975), 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Dommer v. Hatcher (N.D.Ind.1977), 427 F.Supp. 1040; Williams v. State (1976), 264 Ind. 664, 348 N.E.2d 623. The rationale for the rule was explained by the unanimous Court in Gerstein:
“Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972).”
# * * * * *
“When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.”
420 U.S. at 114, 95 S.Ct. at 863.
Heretofore, the courts of this State have exhibited an appreciation for the significance of the constitutional requirement that a preliminary hearing follow posthaste to a warrantless arrest. Williams v. State, supra; Harness v. Steele (1902), 159 Ind. 286, 64 N.E. 875; Matovina v. Hult (1955), 125 Ind.App. 236, 123 N.E.2d 893. See also, Dommer v. Hatcher, supra. Our courts have held that a warrantless arrest and incarceration without a preliminary hearing shortly thereafter cannot be justified on the basis that the police needed additional time to investigate the case and procure evidence against the accused. Harness v. Steele, supra, at 879; Matovina v. Hult, supra, at 897. Accord, Dommer v. Hatcher, supra, at 1045. Our Supreme Court has held that a war-rantless incarceration without a judicial determination of probable cause for a period of sixty-eight hours clearly violated the suspect’s Fourth Amendment rights. Williams v. State, supra, at 627; See also Dommer v. Hatcher, supra, at 1045 (A warrantless arrest and incarceration for a period of twenty-four hours without a hearing violated suspects’ rights under United States and Indiana constitutions.). In addition, our legislature has sought to protect individual liberty against governmental intrusion by enacting various statutes designed to insure that a judicial determination of probable cause is afforded those citizens whose freedom is jeopardized. See IC 1971, 35-1-7—1 § 9-701 (Burns Code Ed.); IC 1971, 35-1-8-1 § 9-704 (Burns Code Ed.); IC 1971, 35-4-1-1 § 9-704a (Burns Code Ed.); IC 1971, 35-3.1 — 1—1(d) § 9-903(d) (Burns Code Ed.); IC 1971, 9-4-1-130 § 47-2307 (Burns Code Ed.); IC 1971, 18-1-11-8 § 48-6112 (Burns Code Ed.); IC 1971, 18-4-12-16 § 48-9416 (Burns Code Ed.).
*415Our decision here today flies in the face of both the letter and spirit of these constitutional, statutory, and judicial authorities. The majority holds that a nine-day war-rantless incarceration for the purpose of further investigating the arrestee’s role in the case — without a judicial determination of probable cause — is permissible. In so holding, the majority indirectly sanctions that very type of governmental conduct which prompted our forefathers to their creation of the Bill of Rights.
I do not dispute that a suspect may waive his or her right to be promptly taken before a magistrate subsequent to a warrantless arrest. Those instances, however, are rare.5 Here, Police Officers Férvida, Call, and Fish wholly failed to sustain their burden of proof to establish their claim that Grooms waived his constitutional right to a prompt judicial determination of probable cause.
I would reverse the judgment of the trial court, enter judgment for Grooms, and remand the cause to the trial court with instructions to grant a new trial on the issue of damages.
. Due to Grooms’ present incarceration at the Indiana State Prison, he was unable to afford a transcript for purposes of bringing this appeal. Pursuant to Ind.RuIes of Procedure, Appellate Rule 7.2(A)(3)(c), Grooms submitted a “Statement of the Evidence” to the trial court in lieu of the unavailable transcript. Férvida, Call, and Fish subsequently tendered additions and amendments to Grooms’ statement. The trial court certified the statement, together with the additions and amendments thereto, as a “true and correct” account of the evidence presented in the trial court.
. The language quoted is drawn from defendants-appellees “Objections and Amendments to Plaintiffs Statement of the Evidence and Proceedings.” See fn. 1, supra.
. The majority characterizes the gist of the arrangement as “Grooms would be freed on the murder charge if he passed the polygraph.” No charge had been filed. It is more accurate to state that “Grooms would be freed from the murder investigation.”
.We do not imply that Virgil himself has suggested that he waived Grooms’ right to appear before a magistrate. In an affidavit in the record, he expressly denies so. Our language is directed at the majority’s reliance on the conversations between Virgil and the prosecutor.
. See 98 A.L.R.2d 966 (1964), as relied upon by the majority.