Arrest Warrants

Many arrests are made without a warrant, of course. However, where the circumstances permit, "Law enforcement officers may find it wise to seek arrest warrants where practicable to do so." (U.S. v. Watson)

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Many arrests are made without a warrant, of course. However, where the circumstances permit, "Law enforcement officers may find it wise to seek arrest warrants where practicable to do so." (U.S. v. Watson)

Arrest warrants come in several varieties, including bench warrants issued by a court when a defendant fails to appear, probable-cause arrest warrants issued on the basis of sworn statements establishing PC to arrest, and warrants issued on the basis of a grand jury indictment or a prosecutor's criminal complaint. The Fourth Amendment rules on arrest warrants are the same for all varieties.

Advantages of Arrest Warrants

The most significant advantages of arrests made under warrants are these:

  • Unquestionable PC. When you make a warrantless arrest on your own assessment of probable cause, you run the risk that a judge may later disagree with your determination and may rule that the suspect was arrested without PC. If that happens, there are risks of suppression of evidence, dismissal of charges, and civil liability for Fourth Amendment violation.

Arrests under warrants do not run these same risks. There is no question of the PC to arrest, because "A person arrested under a warrant would have received a prior judicial determination of probable cause." (Gerstein v. Pugh)

  • No McLaughlin hearing required. In Riverside County v. McLaughlin, the U.S. Supreme Court held that a person arrested without a warrant is entitled to a judicial determination of PC within 48 clock hours after arrest. This review can be based on reports and affidavits submitted by the arresting officer, and it does not necessitate a formal courtroom hearing. Because, as indicated in Gerstein, the PC determination has already been made by a magistrate when an arrest warrant is issued, there is no need to submit "probable cause declarations" for judicial review when the person was arrested under a warrant.
  • "Lawful performance of official duty" is satisfied. In order to convict defendants of some offenses against you, such as resisting arrest or assault on an officer, many statutes require that you be lawfully performing official duty at the time of the resistance, assault, etc. If you're acting under authority of a judicial arrest warrant, this element is satisfied without further proof (but a defendant can still offer proof that the arrest was made in an unreasonable manner, such as by the use of excessive force).

The same protection applies to civil suits against you for false arrest. "Where the alleged Fourth Amendment violation involves [an arrest] pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner." (Messerschmidt v. Millender)

  • Help in locating the suspect. Because crooks travel freely from one jurisdiction to another, your chances of encountering the person named in an outstanding warrant may not be great within your local jurisdiction. Fortunately, the warrant can be entered into local, statewide, and national databases, such as NCIC, enabling an officer in another jurisdiction to make the arrest when the fugitive is encountered elsewhere and is run for wants and warrants.
  • Application of the "good faith" doctrine. If a mistake is made in serving an arrest warrant, courts are more likely to admit resulting evidence under the "good faith" doctrine than in the case of a warrantless arrest. "An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause. When the constitutional validity of a warrantless arrest is challenged, good faith on the part of the arresting officers is not enough." (Beck v. Ohio)
  • Entry to arrest is authorized. A series of U.S. Supreme Court rulings has established that law enforcement officers may constitutionally enter into private premises only with one or more of four justifications: (1) consent, (2) exigent circumstances, (3) probation or parole term, or (4) search or arrest warrant. Of these, the category that provides the most protection against suppression of evidence and civil liability is the one that's most difficult for a suspect to challenge—the warrant.

If you have an arrest warrant, you may make forcible entry, if necessary, to arrest the suspect if you have reasons to believe he resides there and that he's inside when entry is made. As the Supreme Court said in Payton v. New York, "For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."

An Important Limitation

Although Payton held that an arrest warrant for a resident allows entry into his residence when there's reason to believe he's home, the court restricted this ruling to premises where the suspect is reasonably believed to reside. An arrest warrant is not authority for entry into other residences where the suspect may be temporarily visiting. This limitation was made clear in Steagald v. U.S.

Federal officers had an arrest warrant for Ricky Lyons on drug charges. They developed information that Lyons might be temporarily inside the home of Gary Steagald, so they went to Steagald's house, entered, and searched. Lyons was not inside, but officers found cocaine and arrested Steagald. The U.S. Supreme Court ordered the cocaine suppressed as the "fruit" of unreasonable entry. Said the court, "While the arrest warrant in this case may have protected Lyons from an unreasonable seizure, it did absolutely nothing to protect Steagald's privacy interest in being free from an unreasonable invasion and search of his home. A search warrant was required."

So, Steagald means that when you have an arrest warrant for A and you believe (or even know) he's visiting in B's home, you cannot make non-consensual, non-exigent entry into B's home to search for and arrest A. You have to get a search warrant for B's home, to look for A. In many jurisdictions, such a warrant is unofficially known as a "Steagald warrant."

Speedy Trial, Due Process, and "Due Diligence"

It's not enough to get an arrest warrant and enter it into databases, hoping someone else will pick up your suspect for you. Because the suspect has constitutional rights to a speedy trial and to due process, he has a right to be put on notice of the charges against him in a timely manner, so he can preserve evidence of his defense and can be tried before memories of witnesses become stale and unreliable. (Doggett v. U.S.)

To prevent dismissal of the case long after an arrest warrant was issued, the prosecution has to show that officers exercised "due diligence" to try to locate and apprehend the suspect. This often requires officers to keep a record of attempts to serve the warrant and to locate a fugitive, showing that you made repeated visits to his LKA, contacted relatives, checked DMV and utility records, scanned social media sites, put the warrant into NCIC, etc.

Safety First

On average, one of every 12 officers killed in the line of duty each year is killed while serving an arrest warrant or attempting an arrest. While warrants can protect you against suppression of evidence and civil liability, they don't stop a bullet. Stay alert, and stay alive.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of a dozen books, including "Investigative Constitutional Law."

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DA Special Counsel
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