Warranted: arrest warrants

Last week we discussed the general requirements for obtaining a warrant. This week we’re getting more specific—we’re talking about arrest warrants.

Just to review, an arrest is a type of seizure, and therefore the requirements of the 4th Amendment apply. But even though that amendment implies you need a warrant, a long series of cases says not so much. In fact, police never need a warrant to make an arrest if the person is suspected of a felony. They also don’t need a warrant to arrest someone who’s committed a misdemeanor in their presence. So the only time they must have a warrant is for misdemeanors that the police didn’t witness. This constitutes a pretty small proportion of arrests, so in practice, arrest warrants are rarely required.

However, even if police don’t have to get a warrant prior to making an arrest, they might choose to do so. Why? Well, a warrant offers some potential benefits:

  1. It gets the suspect’s name into the system. This way, if the suspect is later stopped for something else—perhaps something small—police can easily tell whether he’s wanted for another crime. One of my students once failed to pay a speeding ticket or appear in court, so a warrant for failure to appear was issued in his name. Later he and a buddy decided to go swimming in an apartment pool after hours. Someone complained, cops came, and when they checked Steve’s name, there he was. He ended up spending the 4th of July weekend in the local jail.
  2. With an arrest warrant, the police can enter any property where the suspect is, without getting a search warrant. Absent an arrest warrant or search warrant, police can’t enter private property unless they are in hot pursuit of a fleeing felon (that is, the crime has just occurred) or some other emergency exists.
  3. Before getting an arrest warrant, a cop has to convince a magistrate or judge that there’s probable cause that the suspect committed a crime. This provides somewhat of a guarantee that the arrest won’t later be thrown out (by a judge) for insufficient evidence.

Even when a warrantless arrest is made, police must still have probable cause. An arrest made with less than probable cause is illegal and will be invalidated, ending the case.

Incidentally, want a plot bunny? Alma invites her friend Brad over to her house, unaware that Brad has an active arrest warrant out in his name. The cops see Brad enter her house and barge right on in after him. Too bad for Brad. But also too bad for Alma, who’s been packaging heroin in her living room. When the cops see the drugs, they arrest her too.


Warranted: general requirements

For the next few weeks we’ll be tackling a big subject: warrants. This week we’ll talk about general warrant requirements, next week is arrest warrants, and the following week the focus will be on search warrants. Finally, we’ll discuss what happens if police violate the warrant requirements.

The part of the US Constitution that applies here is the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

Okay, fine. So the amendment says that we have the right to be free from unreasonable searches and seizures. Great. And if the police want to get a warrant, they need probable cause.

So first off, what’s a search or seizure? Well, a search is government intrusion into a place or thing in which the owner has a reasonable expectation of privacy. If a cop overhears my phone conversation while I’m sitting at the adjacent table in Starbucks, that’s not a search because I can’t reasonably expect privacy. But if she grabs my phone and starts scrolling through my texts, that is probably a search.

A seizure is a meaningful interference with property or with a person’s freedom. If a cop tows my car away, that’s a seizure. If she slaps cuffs on me and hauls me off to jail? Also a seizure.

Great. But, um, what’s probable cause? The courts have been reluctant to define it too precisely, but basically it means there’s enough information that a reasonable person could deduce that evidence or contraband is likely in a particular location or that a specific person has committed a crime. It’s more than a hunch, more even than a good guess, but it’s far less than beyond a reasonable doubt, which is the standard of proof required for criminal convictions.

In simplest terms, the 4th Amendment says that in order to search or seize property or arrest someone, a police officer must have probable cause. And she must present her evidence in a sworn statement to a neutral party—a magistrate or judge—who will determine if probable cause does indeed exist. Furthermore, the warrant has to be specific about the place that’s being searched and what’s being searched for, or the identity of the person who can be arrested.

Now as it turns out, the use of warrants is more complicated than that. We’ll get to some particulars in the next two weeks.

Another thing to note now, however, is the procedure for obtaining warrants. The cop can show up in court. But almost all jurisdictions allow phone warrants as well, in which the transaction occurs via phone instead of in person. This is helpful if time is of the essence, e.g., the evidence is likely to disappear.

Supremacy clause

Now is an excellent time to discuss the Constitution and the Supremacy Clause.

Here’s the clause itself, in Article IV:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So what does this mean?

Briefly, it means that the feds get the ultimate say as to what’s legal and what’s not. But in practice, things are more complicated.

States cannot contradict federal law. In other words, federal law preempts state law. So if a federal statute forbids or explicitly permits something, or if a federal court has ruled on something, the states have to live with that. Here are two examples:

In Obergefell v. United States (2015), the Supreme Court held that the 14th Amendment protects the right of same-sex couples to marry. Pursuant to that opinion, states can no longer prohibit same-sex marriage. The many state statutes and state constitutional clauses prohibiting these marriages are invalidated.

Under federal law, possession or use of marijuana is prohibited except under some very limited circumstances. It’s a Schedule I drug, subject to the same restrictions as LSD and heroin. Now, states can decide for themselves whether marijuana will be prosecuted under state law, and many have opted not to. But they can’t stop the feds from doing their thing. So if I light up a joint in California, the state and local police won’t come after me. But the feds might (although that’s unlikely unless I’m a big-time dealer).

If the federal courts hold that a particular right is not protected by the US Constitution, the states can still grant that right under their state constitutions. For instance, Oregon has interpreted its own freedom of speech clause more broadly than the feds have. So although the feds say obscenity can be prohibited under federal law, Oregon does not prohibit it under state law.

An upshot of all of this is that the states can generally give their citizens more freedoms than the feds do, but not fewer.

So if you’re frustrated by recent legal developments within the federal government and worried that particular rights may be curtailed? You can put on pressure locally to make sure your state provides the protections that are important to you.