Warranted: the exclusionary rule

Today is the final post on warrants—at least for now.

I’ll start with a story. In 1957, Cleveland police were looking for evidence of a bombing, and although Dollree Mapp wasn’t the suspect, they believed she might have evidence in her home. But she refused to let them in. So they returned a few hours later, waving a paper and claiming it was a search warrant. She snatched the paper and shoved it down the front of her dress; they wrestled her and took the paper back. With Mapp in cuffs, they proceeded to search her house. Inside a trunk in the basement they found pornographic books and pictures (the property, Mapp said, of a previous tenant). They arrested Mapp and prosecuted her for possession of illegal pornography. No warrant was ever produced at trial. It’s pretty clear none ever existed.

Mapp appealed her conviction all the way to the Supreme Court, arguing that because police did not have a warrant, the search violated her 4th Amendment rights. Therefore, she said, the evidence should be thrown out of court and her conviction overturned.

In Mapp v. Ohio, SCOTUS agreed. They articulated the exclusionary rule, which says that illegally obtained evidence can’t be used in court. This is a powerful rule because it means that sometimes people we know are guilty will still go free because the cops screwed up. But, the Court said, the rule was the only realistic way to deter police misconduct and protect constitutional rights.

As you might imagine, the exclusionary rule has been unpopular among a lot of people. Over the years, SCOTUS has carved out a number of exceptions to the rule. But the heart of the rule remains intact.

And this concludes our whirlwind tour of warrants!


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.