Arrest Warrants: Cases & Law

Instructor: Kenneth Poortvliet

Kenneth has a JD, practiced law for over 10 years, and has taught criminal justice courses as a full-time instructor.

When police feel they have enough evidence, the make an arrest. In this lesson we will learn what an arrest warrant it and when it's needed, and we'll look a landmark Supreme Court cases dealing with arrest warrants.

The Arrest

John Smith opened his bedroom door to find three police officers with guns drawn. They arrested him for the possession and distribution of drugs and found a duffle bag sitting next to his bed with cash, drugs and baggies. John asked to see a warrant, and the police officer quickly showed him one, then pulled it away. John noticed that the name on the warrant was his, but the description had the wrong address. They arrested Stan and charged him.

Probable Cause For Arrest

The requirements needed for an arrest are set forth in the Fourth Amendment, which protects people against unreasonable searches and seizure (which is an arrest) and says ''no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'' Probable cause is a legal standard that requires specific circumstances and facts be present before police can arrest or search and it exists when an officer reasonably believes, under the circumstances, that a crime has been committed and the suspect did it.

Arrest Warrant

An arrest warrant is an authorization by a judge or magistrate to arrest and detain a person. To obtain a warrant, an officer submits an affidavit to the court that sets out the facts to support probable cause. The judge or magistrate then decides if probable cause exists, and if so, issues the warrant. There is no bright line rule about what constitutes probable cause, but the Supreme Court in Illinois v. Gates empowered magistrate judges to make that determination based on their judgement of the 'totality of circumstances.' To be legal, a warrant must contain the following:

  • The name of the suspect, and
  • The crime for which the suspect is charged, and
  • The name of the court issuing the warrant.

The law requires that if a warrant is defective because it is too vague or improperly identifies the suspect, the the arrest is unlawful.

Not all arrests need to be made with a warrant. In many states, there is a requirement that before a person is arrested without a warrant, the officer must have witnessed the crime. While a state is free to restrict their officers in such way, the Constitution does not. In United States v. Watson (1985), the U.S. Supreme Court held that a public arrest for a felony requires probable cause, but did not need a warrant. In that case, U.S. postal inspectors set up a sting and arrested Watson in a restaurant. Watson claimed that the evidence they found should be thrown out because the inspectors didn't have a warrant. The court disagreed and upheld Watson's conviction.

When Arrest Warrant Needed

So when is an arrest warrant necessary? The answer involves a doctrine that has evolved from the Fourth Amendment called the expectaton of privacy doctrine. This looks at the level of privacy a reasonable person expects in the area of police intervention. The lowest being when one is out in the public, the highest being in a person's home. Because of that privacy concern, the court said in Payton v. New York (1980) that ''to be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant.''

So what about other places? There is no simple answer. The courts have consistently held that in places where the expectation of privacy is high, then an arrest warrant is needed, if not, then the officers need probable cause and can make an arrest. In Katz v. United States (1976) the Court said that what ''a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.''

For example, if an officer arrests someone without a warrant at public restaurant or laundromat, a warrant wouldn't be needed. But a CEO in her office that she keeps locked and where she often changes and sleeps would have a high expectation of privacy and a warrant would be required.

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