Arrests With & Without a Warrant
Last updated
Last updated
“An arrest is distinguished by the involuntary, highly intrusive nature of the encounter.”1
There is hardly anything that is more likely to louse up a criminal’s day than hearing the words: “You’re under arrest.” After all, it means the miscreant is now subject to an immediate, complete, and sometimes permanent loss of freedom. As the United States Supreme Court observed, an arrest is “the quintessential seizure of the person.”2
For these reasons, arrests are subject to several requirements that, as the Court explained, are intended “to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime.”3 As we will discuss in this section, these requirements can be divided into three categories:
GROUNDS FOR ARREST: Grounds for an arrest means having .
MANNER OF ARREST: The requirements pertaining to the arrest procedure include giving notice, the , the issuance and execution of,, , and an occupant.
POST-ARREST PROCEDURE: are such things as booking, phone calls, attorney visits, disposition of arrestees, probable cause hearings, arraignment, and even “perp walks.”
Before we begin, it should be noted that there are technically three types of arrests. The one we will be covering in this article is the conventional arrest, which is defined as a seizure of a person for the purpose of making him available to answer pending or anticipated criminal charges.4 A conventional arrest ordinarily occurs when the suspect was told he was under arrest, although the arrest does not technically occur until the suspect submits to the officer’s authority or is physically restrained.5
The other two are de facto and traffic arrests. De facto arrests occur inadvertently when a detention becomes excessive in its scope or intrusiveness.6 Like all arrests, de facto arrests are unlawful unless there was probable cause. A traffic arrest occurs when an officer stops a vehicle after seeing the driver commit an infraction. This is deemed an arrest because the officer has probable cause, and the purpose of the stop is to enforce the law, not conduct an investigation.7 Still, these stops are subject to the rules pertaining to investigative detentions.8
Perhaps the most basic principle of criminal law is that an arrest requires probable cause. In fact, this requirement and the restrictions on force and searches are the only rules pertaining to arrest procedure that are based on the Constitution, which means they are enforced by the exclusionary rule. All the others are based on state statutes.9
Although we covered the subject of probable cause at length in a series of articles last year, there are some things that should be noted here.
DEFINED: Probable cause to arrest exists if there was a “fair probability” or “substantial chance” that the suspect committed a crime.10
WHAT PROBABILITY IS REQUIRED: Probable cause requires neither a preponderance of the evidence, nor “any showing that such belief be correct or more likely true than false.”11 Consequently, it requires something less than a 51% chance.12
ARRESTS “FOR INVESTIGATION”: Unlike officers on television and in movies, real officers cannot arrest suspects “for investigation” or “on suspicion” in hopes of obtaining incriminating evidence by interrogating them, putting them in a lineup, or conducting a search incident to arrest.13 This is because probable cause requires reason to believe the person actually committed a crime, not that he might have. As the Supreme Court said, “It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge.”14
MISTAKES OF LAW: There are two types of mistakes of law that can occur when officers arrest someone. First, there are mistakes as to the crime he committed; e.g., officers arrested the suspect for burglary, but the crime he actually committed was defrauding an innkeeper. These types of mistakes are immaterial so long as there was probable cause to arrest for some crime.15
The other type of mistake occurs when officers were wrong in their belief that there was probable cause to arrest. These types of mistakes render the arrest unlawful.16
Although officers may consider their training and experience in determining whether probable cause to arrest exists, they must not jump to conclusions or ignore information that undermines probable cause. This is especially true if there was time to conduct further investigation before making the arrest. As the Seventh Circuit pointed out, “A police officer may not close her or his eyes to facts that would help clarify the circumstances of an arrest. Reasonable avenues of investigation must be pursued.”17
For example, in Gillan v. City of San Marino,18 a young woman told officers that, several months earlier while attending high school, she had been sexually molested by Gillan, her basketball coach. So they arrested him—even though the woman was unable to provide many details about the crime, even though some of the details she provided were inconsistent, even though she had a motive to lie (she had “strong antipathy” toward Gillian because of his coaching decisions), and even though they surreptitiously heard Gillan flatly deny the charge when confronted by the woman. After the DA refused to file charges, Gillan sued the officers for false arrest, and the jury awarded him over $4 million.
On appeal, the court upheld the verdict, noting that the information known to the officers was “not sufficiently consistent, specific, or reliable” to constitute probable cause. Among other things, the court noted that “[s]ome of the allegations were generalized and not specific as to time, date, or other details, including claims of touching in the gym. Other accusations concerning more specific events either lacked sufficient detail or were inconsistent in the details provided.”
In another case, Cortez v. McCauley,19 a woman brought her two-year old daughter to an emergency room in New Mexico because her daughter had said that Cortez, an acquaintance, “hurt her pee pee.” A nurse at the hospital notified police who immediately arrested Cortez at his home. After prosecutors refused to file charges against him, Cortez sued the officers for false arrest.
In ruling that the officers were not entitled to qualified immunity, the Tenth Circuit pointed out that they “did not wait to receive the results of the medical examination of the child (the results were negative), did not interview the child or her mother, and did not seek to obtain a warrant.” Said the court, “We believe that the duty to investigate prior to a warrantless arrest is obviously applicable when a double-hearsay statement, allegedly derived from a two-year old, is the only information law enforcement possesses.”
When officers have probable cause to arrest, the courts prefer that they seek an arrest warrant.20 But they also understand that a rule prohibiting warrantless arrests would “constitute an intolerable handicap for legitimate law enforcement.”21 Consequently, warrantless arrests are permitted regardless of whether officers had time to obtain a warrant.22 As we will discuss, however, there are certain statutory restrictions if the crime was a misdemeanor.
If the suspect was arrested for a felony, the only requirement under the Fourth Amendment and California law is that they have probable cause.23 That’s also true if the crime was a “wobbler,” meaning a crime that could have been prosecuted as a felony or misdemeanor.24 Accordingly, if the crime was a felony or wobbler, officers may make the arrest at any time of the day or night,25 and it is immaterial that the crime did not occur in their presence.26
Because most misdemeanors are much less serious than felonies, there are three requirements (in addition to probable cause) that must be satisfied if the arrest was made without a warrant.
The arrest must have been made between the hours of 6 A.M. and 10 P.M. There are, however, four exceptions to this rule. Specifically, officers may make a warrantless misdemeanor arrest at any time in any of the following situations:
IN THE PRESENCE: The crime was committed in the officers’ presence. (See the “in the presence rule,” below.)
DOMESTIC VIOLENCE: The crime was a domestic assault or battery.
CITIZEN’S ARREST: The arrest was made by a citizen.
PUBLIC PLACE: The suspect was arrested in a public place.27
What is a “public” place? In the context of the Fourth Amendment, it is broadly defined as any place in which the suspect cannot reasonably expect privacy.28 Thus, a suspect is in a “public” place if he was on the street or in a building open to the public. Furthermore, the walkways and pathways in front of a person’s home usually qualify as “public places” because the public is impliedly invited to use them.29 In fact, the Supreme Court has ruled that a suspect who is standing at the threshold of his front door is in a “public place.”30
As a general rule, officers may not make warrantless misdemeanor arrests unless they have probable cause to believe the crime was committed in their “presence.”31 In discussing this requirement, the Court of Appeal explained, “This simply means that such an arrest may be made when circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence.”32 If the crime was not committed in the officers’ presence, and if they believe the suspect should be charged, they will ordinarily submit the case to prosecutors for review. They may not issue a citation in lieu of arrest.33
Although the “in the presence” requirement is an “ancient common-law rule,”34 it is not mandated by the Fourth Amendment.35 Instead, it is based upon a California statute,36 which means that evidence cannot be suppressed for a violation of this rule.37 What is “presence?” A crime is committed in the “presence” of officers if they saw it happening, even if they needed a telescope.38 A crime is also committed in the officers’ presence if they heard or smelled something that reasonably indicated the crime was occurring; e.g., officers overheard a telephone conversation in which the suspect solicited an act of prostitution, officers smelled an odor of marijuana.39 The question arises: Is a crime committed in the officers’ presence if they watched a video of the suspect committing it at an earlier time? It appears the answer is no.40 What if officers watched it live on a television or computer monitor? While there is no direct authority, it would appear that the crime would be occurring in their presence because there does not seem to be a significant difference between watching a crime-in-progress on a computer screen and watching it through a telescope.
While the courts frequently say that the “in the presence” requirement must be “liberally construed,”41 it will not be satisfied unless officers can testify, “based on [their] senses, to acts which constitute every material element of the misdemeanor.”42 In making this determination, however, officers may rely on circumstantial evidence and reasonable inferences based on their training and experience. For example, in People v. Steinberg 43 an LAPD officer received information that the defendant was a bookie and that he was working out of his rooming house. The officer went there and, from an open window, saw the defendant sitting near several items that indicated to the officer, an expert in illegal gambling, that the defendant was currently engaged in bookmaking. As the officer testified, the room “contained all the equipment and accoutrement commonly found in the rendezvous of the bookmaker.” In ruling that the crime of bookmaking had been committed in the officer’s presence, the court noted, “In the room where appellant had been seen engaged in his operations, the telephone was on his desk on which lay the National Daily Reporter and nearby were racing forms, pencils and ball point pens. . . . One sheet of paper was an ‘owe sheet’ on which was a record of the moneys owed by the bettors to the bookmaker, or the sum due from the latter to the bettors.”
Similarly, in a shoplifting case, People v. Lee,44 an officer in an apparel store saw Lee walk into the fitting room carrying five items of clothing. But when she left the room, she was carrying only three, which she returned to the clothing racks. The officer then checked the fitting room and found only one item, which meant that one was unaccounted for. So when Lee left the store, the officer arrested her and found the missing item in her purse. On appeal, Lee claimed the arrest was unlawful because the officer had not actually seen her conceal the merchandise in her purse. It didn’t matter, said the court, because the term “in the presence” has “historically been liberally construed” and thus “[n]either physical proximity nor sight is essential.”
Arrests for the following misdemeanors are exempt from the “in the presence” requirement,45 presumably because of the overriding need for quick action:
ASSAULT AT SCHOOL: Assault or battery on school property when school activities were occurring.46
CARRYING LOADED GUN: Carrying a loaded firearm in a public place.
GUN IN AIRPORT: Carrying a concealed firearm in an airport.
DOMESTIC VIOLENCE PROTECTIVE ORDER: Violating a domestic violence protective order or restraining order if there was probable cause to believe the arrestee had notice of the order.
DOMESTIC VIOLENCE: Assault on a spouse, cohabitant, or the other parent of the couple’s child.
ASSAULT ON ELDER: Assault or battery on any person aged 65 or older who is related to the suspect by blood or legal guardianship.
ASSAULT ON FIREFIGHTER, PARAMEDIC: Assault on a firefighter, EMT, or paramedic engaged in the performance of his duties.
DUI PLUS: Even though officers did not see the suspect driving a vehicle, they may arrest him for DUI if, (1) based on circumstantial evidence, they had probable cause to believe he had been driving while under the influence; and (2) they had probable cause to believe that one or more of the following circumstances existed:
He had been involved in an auto accident.
He was in or about a vehicle obstructing a roadway.
He would not be apprehended unless he was immediately arrested.
He might harm himself or damage property if not immediately arrested.
He might destroy or conceal evidence unless immediately arrested.
His blood-alcohol level could not be accurately determined if he was not immediately arrested.
In addition, officers who have probable cause to arrest a juvenile for the commission of any misdemeanor may do so regardless of whether the crime was committed in their presence.46
Even though a misdemeanor was committed in the officers’ presence, there is a long-standing rule that they may not arrest the suspect if they delayed doing so for an unreasonably long period of time.47 This essentially means that officers must make the arrest before doing other things that did not appear to be urgent. As the court explained in Jackson v. Superior Court, “[T]he officer must act promptly in making the arrest, and as soon as possible under the circumstances, and before he transacts other business.”48
Note that because this rule is not based on the Fourth Amendment, a violation cannot result in the suppression of evidence. Still, a lengthy delay should be considered by officers in determining whether the suspect should be cited and released.
As noted earlier, an arrest is lawful under the Fourth Amendment if officers have probable cause. What, then, is the purpose of seeking an arrest warrant? After all, the United States Supreme Court has pointed out that it “has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.”49
There are essentially four situations in which officers will apply for a warrant. First, if the suspect has fled or if officers will otherwise be unable to make an immediate arrest, they may seek a warrant in order to download the arrest authorization into an arrest-warrant database such as NCIC. Second, as we will discuss later, an arrest warrant will ordinarily be required if officers will need to forcibly enter the suspect’s residence to make the arrest. Third, as discussed earlier, a warrant may be required if the crime was a misdemeanor that was not committed in an officer’s presence. Finally, if officers are uncertain about the existence of probable cause, they may seek an arrest warrant so as to obtain a judge’s determination on the issue which, in most cases, will also trigger the good faith rule.50 Apart from these practical reasons for seeking an arrest warrant, there is a philosophical one: the courts prefers that officers seek warrants when possible because, as the United States Supreme Court explained, they prefer to have “a neutral judicial officer assess whether the police have probable cause.” 51
Before we discuss the various types of arrest warrants that the courts can issue, it is necessary to cover the basic rules and principles that govern the issuance and execution of arrest warrants.
WARRANTS ARE COURT ORDERS
An arrest warrant is a court order directing officers to arrest a certain person if and when they locate him.52 Like a search warrant, an arrest warrant “is not an invitation that officers can choose to accept, or reject, or ignore, as they wish, or think, they should.”53
An arrest warrant remains valid until it is executed or recalled.54
Officers are not required to confirm the propriety of a warrant that appears valid on its face.55 They may not, however, ignore information that reasonably indicates the warrant was invalid because, for example, it had been executed or recalled, or because probable cause no longer existed.56 [Case-in-point: The Carter County Sheriff ’s Department in Tennessee recently discovered an outstanding warrant for the arrest of J.A. Rowland for passing a $30 bad check. The warrant had been issued in 1928, and was payable to a storage company that ceased to exist decades ago. Said the sheriff with tongue in cheek, “This is still a legal document. We’ll have to start a manhunt for this guy.”]
An arrest will ordinarily be upheld if the name of the arrestee and the name of the person listed on the warrant were the same.70 But officers may not ignore objective facts that reasonably indicate the person they were arresting was not, in fact, the person named in the warrant; e.g., discrepancy in physical description, date of birth.58
To make sure that an arrest warrant listed in a database had not been executed or recalled, officers will ordinarily confirm that it is still outstanding.59
An arrest warrant or a warrant abstract sent from one agency to another via email or fax has the same legal force as the original warrant.60
Officers may serve felony arrest warrants at any hour of the day or night.61 However, misdemeanor warrants may not be served between the hours of 10 P.M. and 6 A.M. unless, (1) officers made the arrest in a public place, (2) the judge who issued the warrant authorized night service, or (3) the arrestee was already in custody for another offense.62
The question has arisen on occasion: If officers are inside a person’s home after 10 P.M. because, for instance, they are taking a crime report, can they arrest an occupant if they should learn that he is wanted on a misdemeanor warrant that is not endorsed for night service? Although there is no case law directly on point, the California Court of Appeal has pointed out that the purpose of the time limit on misdemeanor arrests “is the protection of an individual’s right to the security and privacy of his home, particularly during night hours and the avoidance of the danger of violent confrontations inherent in unannounced intrusion at night.”63 It is at least arguable that none of these concerns would be implicated if officers had been invited in. But, again, the issue has not been decided.
A conventional arrest warrant—also known as a complaint warrant—is issued by a judge after prosecutors charged the suspect with a crime.64 Such a warrant will not, however, be issued automatically simply because a complaint had been filed with the court. Instead, a judge’s decision to issue one—like the decision to issue a search warrant—must be based on facts that constitute probable cause.65 For example, a judge may issue a conventional arrest warrant based on information contained in an officer’s sworn declaration, which may include police reports and written statements by the victim or witnesses, so long as there is reason to believe the information is accurate. As the California Supreme Court explained:
The information in the complaint or affidavit in support thereof must either (1) state facts within the personal knowledge of the affiant or complainant directly supportive of allegations in the complaint that the defendant committed the offense; or (2) when such stated facts are not within the personal knowledge of the affiant or complainant, further state facts relating to the identity and credibility of the source of the directly incriminating information.66
Warrants may be issued for misdemeanors, as well as felonies.67
The warrant must include the name of the person to be arrested, the date and time it was issued, the city or county in which it was issued, the name of the court, and the judge’s signature.68 The warrant must also contain the amount of bail or a “no bail” endorsement.69
If officers don’t know the suspect’s name, they may obtain a John Doe warrant, but it must contain enough information about the suspect to sufficiently reduce the chances of arresting the wrong person.70 As the court explained in People v. Montoya, “[A] John Doe warrant must describe the person to be seized with reasonable particularity. The warrant should contain sufficient information to permit his identification with reasonable certainty.”71 Similarly, the court in Powe v. City of Chicago noted that, “[w]hile an arrest warrant may constitutionally use such arbitrary name designations, it may do so only if, in addition to the name, it also gives some other description of the intended arrestee that is sufficient to identify him.”72
For example, in U.S. v. Doe, where the person named on the arrest warrant was identified only as “John Doe a/k/a Ed,” the court ruled the warrant was invalid because “the description did not reduce the number of potential subjects to a tolerable level.”73 Thus, a John Doe warrant should include, in addition to a physical description, any information that will help distinguish the arrestee, such as his home or work address, a description of the vehicles he drives, the places where he hangs out, and the names of his associates.74 Whenever possible, a photo of the suspect should also be included.
There are two reasons for including the suspect’s address on an arrest warrant. First, as just noted, if it’s a John Doe warrant an address may be necessary to help identity him.75 Second, the address may assist officers in locating the suspect. Otherwise, an address on a warrant serves no useful purpose. As the court observed in Cuerva v. Fulmer, “In an arrest warrant, unlike a search warrant, the listed address is irrelevant to its validity and to that of the arrest itself.”76 The question has arisen: Does the inclusion of an address on a warrant constitute authorization to enter and search the premises for the arrestee? The answer is no.77 As we will discuss later, officers cannot enter a residence to execute an arrest warrant unless they have probable cause to believe that the suspect lives there, and that he is now inside. Thus, the legality of the entry depends on whether the officers have this information, not whether the residence is listed on the warrant.
The following are the other kinds of warrants that constitute authorization to arrest:
This is a combination search and arrest warrant which is required when officers forcibly enter the home of a third person to arrest the suspect; e.g., the home of the suspect’s friend or relative. See “Entering a Home to Arrest an Occupant,” below. Also see Page 11 for a sample Steagald warrant.
An indictment warrant is issued by a judge on grounds that the suspect had been indicted by a grand jury.82
Issued by the parole authority when there is probable cause to believe that a parolee violated the terms of release.83
Issued by a judge based on probable cause to believe that a probationer violated the terms of probation.84
Issued by a judge when a defendant fails to appear in court.85
Issued by a judge for the arrest of a witness who has failed to appear in court after being ordered to do so.86
; and
.
Unless otherwise indicated, this page's content is adapted from the following sources: by , used under . This page is licensed under .