Crim B4
Chapter 4
Searches and Arrests with Warrants
CHAPTER OVERVIEW
This chapter’s primary focus is on arrests and searches with warrants. The Fourth
Amendment seems fairly clear with respect to warrants: “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.”
Although much of the law of search and seizure is very complex, the law is very clear
with respect to when a warrant is required. Generally, a search warrant is required for any
type of search, regardless of where it is conducted, provided that (1) there are no exigent
(emergency) circumstances and (2) the search is not one justified on
administrative/special needs grounds. Even searches pursuant to arrest and searches
under the automobile exception are justified in terms of exigencies. Arrest warrants, by
contrast, are required for arrests in private places, provided exigent circumstances are
absent.
Five types of activities are governed by the Fourth Amendment:
• Arrests with warrants
• Arrests without warrants
• Searches with warrants
• Searches without warrants
• The seizure of evidence
COMPONENTS OF WARRANTS
An arrest warrant or a search warrant (see Figures 4.1 and 4.2 for examples) has three
essential components. First, it must be issued by a neutral and detached magistrate.
Second, a showing of probable cause is required. Finally, it must conform to the Fourth
Amendment’s particularity requirement. The first requirement—a neutral and detached
magistrate—is the same regardless of the type of warrant.
A Neutral and Detached Magistrate
The logic for requiring a neutral and detached magistrate in the issuance of an
arrest or a search warrant was explained by the Supreme Court in Johnson v.
United States, 333 U.S. 10 (1948):
The point of the Fourth Amendment . . . is not that it denies law
enforcement the support of the usual inferences reasonable men draw from
evidence. Its protection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead of being judged by the
officer engaged in the often competitive enterprise of ferreting out crime.
In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Court declared
that a state attorney general cannot issue a search warrant. State attorneys
general are chief prosecutors and thus inclined to side with law
enforcement officers.
There have also been some cases in which the Court has focused on the
extent to which magistrates can be viewed as neutral and detached. For
example, in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), a
magistrate issued a warrant for two items believed to violate an obscenity
law, but he also authorized the police to seize any other items that he
might find obscene upon searching the location specified in the warrant.
A Showing of Probable Cause
Showing of Probable Cause in an Arrest Warrant.
It is not difficult for an officer to show probable cause for the issuance of
an arrest warrant. The officer is not required to show probable cause that
the suspect will be found at a particular location. All that is necessary is
for the officer to show that the person sought may have committed the
crime in question
Showing of Probable Cause in a Search Warrant.
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Teaching Note: Make sure students understand that the showing of probable cause
for a search warrant is twofold. First, the officer applying for the search warrant
must show probable cause that the items to be seized are connected with criminal
activity. Second, the officer must show probable cause that the items to be seized
are in the location to be searched. Note that this second requirement does not
apply to an arrest warrant.
Particularity
Particularity in an Arrest Warrant.
There are two ways to satisfy the Fourth Amendment’s particularity
requirement with regard to an arrest warrant. First, if the suspect’s name is
known, then simply supplying his or her name is enough to meet the
particularity requirement. In some situations, however, the suspect’s name
is not known. Then, a specific description of the suspect is sufficient and a
“John Doe” warrant will be issued. As long as other officers may locate
the suspect with reasonable effort, the suspect’s name is not required.
Particularity in a Search Warrant.
The particularity requirement for a search warrant has two elements. First,
the warrant must specify the place to be searched. Next, the warrant must
specify the items to be seized. The reason for this particularity requirement
stems from the framers’ concerns with so-called “general warrants” issued
by the English Crown. These warrants basically permitted limitless
searches for evidence of treason.
In Maryland v. Garrison, 480 U.S. 79 (1987), police officers obtained a
warrant to search the person of Lawrence McWebb and the premises
known as “2036 Park Avenue, third-floor apartment.” They believed that
McWebb’s apartment occupied the entire third floor when, in fact, there
were two apartments on that floor—one of which belonged to another
person named Garrison. Nevertheless, the Court held that the warrant was
valid because it was based on information by a trusted informant, and the
police had inquired with the local utility company and were given the
impression that there was only one apartment on the third floor.
In Andresen v. Maryland, 427 U.S. 463, 479 (1976) the Court upheld a
warrant that authorized the seizure of several items “together with other
fruits, instrumentalities, and evidence of crime at this [time] known.” The
Court noted that the crime in question was particularly complex and
“could be proved only by piecing together many bits of evidence.”
ARRESTS WITH WARRANTS
The Definition of Arrest
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Teaching Note: Help students distinguish between stops and arrests. Both should
be thought of as specific types of seizures. Additionally, each type of seizure can
be placed along a scale of seriousness—an arrest is the most intrusive type of
seizure, and a stop is the next most intrusive. Another important distinction
between a stop and an arrest is the level of justification required. Arrests require
probable cause; stops only require reasonable suspicion. If the circumstances
surrounding a stop are such that it evolves into an arrest, then the arrest will be
declared unconstitutional and the evidence will be thrown out, assuming the
officer did not have probable cause.
Restricted Liberty of Movement and Beyond.
In Henry v. United States, 361 U.S. 98 (1959), the Court found that an
arrest occurred when the police stopped a car whose occupants were
suspected of transporting illegal alcohol. According to the Court, “When
the officers interrupted the two men and restricted their liberty of
movement, the arrest, for purposes of this case, was complete.” Since the
police in Henry did not have probable cause to stop the men, the so-called
arrest was deemed unconstitutional.
Distinguishing between a Stop and an Arrest.
A stop can develop into an arrest if the circumstances dictate. A seizure
that is technically not a formal arrest may be so intrusive as to constitute a
de facto arrest. In this situation, probable cause, rather than reasonable
suspicion, would be required to make the encounter constitutional.
Generally, the courts will weigh (1) the duration of a stop and (2) the
degree of the intrusion in assessing whether a stop evolved into an arrest.
Sometimes, the courts also refer to the officers’ intentions and the manner
in which the stop took place.
Davis v. Mississippi, 394 U.S. 721 (1969) is a leading example of a
stationhouse detention. Several youths, including Davis, were taken into
custody and fingerprinted as part of a rape investigation. The officers did
not have probable cause to detain Davis, and he was held for two days and
interrogated throughout his detention. On the basis of his fingerprints and
confession, Davis was charged, convicted, and sentenced to death. The
Supreme Court reversed Davis’s conviction on the grounds that detention
was too long, too intrusive, and unsupported by probable cause. The Court
did not explicitly address the distinction between a stop and an arrest, but
it intimated that because probable cause was required to detain Davis, the
police officers had effectively arrested him.
Distinguishing between a Stop and a Nonstop.
A stop occurs when a reasonable person would not believe that he or she is
free to leave. A nonstop occurs when a reasonable person would believe
that he or she is free to leave. A nonstop requires no justification at all
because it is not considered a seizure within the meaning of the Fourth
Amendment.
Summary: Distinguishing between Arrests, Stops, and Nonstops.
At one extreme, a seizure that is accompanied by handcuffs, or words to
the effect that the person is “under arrest,” is always considered an arrest.
At the other extreme, when a person is confronted by a police officer and
is not free to leave, but nevertheless briefly detained and not interrogated,
an arrest has not occurred. Where the distinction is confusing is in the gray
area between a stop and an arrest. A stop can evolve into a de facto arrest
in a number of circumstances. The courts will give weight to four factors
in making their decision: (1) the purpose of the stop (such as to question or
interrogate a person); (2) the manner in which the stop takes place (such as
whether the person was stopped by one officer or several); (3) the location
in which the stop takes place (such as stationhouse, street, or home); and
(4) the duration of the stop. No single factor is necessarily determinative.
WHEN IS AN ARREST WARRANT REQUIRED?
At one time, the case law held that if an arresting officer had probable cause to believe
that (1) a person was committing or had committed a felony or (2) a person was
committing a certain misdemeanor in the officer’s presence, then an arrest warrant was
not required.
Arrests in the Home
In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court held that the
Fourth Amendment prohibits a warrantless, nonconsensual entry into a private
home for the purpose of making an arrest.
Arrests in Third-Party Homes
In Steagald v. United States, 451 U.S. 204 (1981), Justice Marshall expressed
concern that although an arrest warrant may protect a person “from an
unreasonable seizure, it [does] absolutely nothing to protect [a third party’s]
privacy interest in being free from an unreasonable invasion and search of his
home.” Accordingly, the Court decided that in such situations, the police must
obtain not only an arrest warrant for the person they seek but also a separate
warrant to search the third-party residence for the arrestee.
EXECUTING AN ARREST WARRANT
There are four important issues to be considered with regard to the service of arrest
warrants:
• When the police are required to “knock and announce” their presence
• Whether property damage is acceptable
• When deadly force can be used
• The consequences of arresting the wrong person
The “Knock-and-Announce” Rule
Under common law, the police were entitled to break into a house to make an
arrest after announcing their presence and their reason for being there. Today, the
method of entry the police can use to serve warrants (either arrest or search
warrants) is usually set forth in legislation. With regard to federal law
enforcement, for example, 18 U.S.C. Section 3109 states that an officer “may
break open any outer or inner door or window of a house . . . to execute a search
warrant, if, after notice of his authority and purpose, he is refused admittance.”
The law also generally requires that police officers announce their
presence and state their authority (such as, “Police officers! Search warrant!”).
Doing so is important for several reasons: (1) it helps avoid needless destruction
of property; (2) it helps prevent violence resulting from unnecessary surprise; and
(3) it helps preserve people’s dignity and privacy.
In Hudson v. Michigan, 547 U.S. 586 (2006), the Supreme Court decided that a
violation of the knock-and-announce rule need not lead to exclusion of evidence.
Property Damage
In Sabbath v. United States, 391 U.S. 585 (1968), the Supreme Court focused on
the extent to which police officers can break and enter for the purpose of serving a
warrant. In particular, the Court focused on the part of 18 U.S.C. Section 3109
that permits officers to “break open an outer door or window.”
Permissible Degree of Force
Section 120.7 states that a police officer “may use such force as is reasonably
necessary to effect the arrest, to enter premises to effect the arrest, or to prevent
the escape from custody of an arrested person.” Deadly force is authorized when
the crime in question is a felony and when such force “creates no substantial risk
to innocent persons,” and the officer reasonably believes that there is a substantial
risk that the fleeing felon will inflict harm on other people or police officers.
In Tennessee v. Garner, 471 U.S. 1 (1985)—which involved the shooting death of
a young, unarmed, fleeing felon—the Supreme Court adopted a rule similar to the
American Law Institute’s formulation.
In Graham v. Connor, 490 U.S. 386 (1989), which set the standard for nondeadly
force, the Court declared emphatically that all claims involving allegations of
excessive force against police officers must be analyzed under the Fourth
Amendment’s reasonableness requirement. Further, the Court adopted a test of
objective reasonableness to decide when excessive force is used. This requires
focusing on what a reasonable police officer would do “without regard to [the
officer’s] underlying intent or motivation.” In determining what a reasonable
police officer would do, the Court looked to three factors: (1) the severity of the
crime; (2) whether the suspect posed a threat; and (3) whether the suspect was
resisting and/or attempting to flee the scene. courts must, in focusing on these
three factors, allow “for the fact that police officers are often forced to make splitsecond judgments—about the amount of force that is necessary in a particular
situation.”
Arresting the Wrong Person
On occasion, the police mistakenly arrest someone other than the person intended
by the warrant. Although the person is eventually released, the arrest sometimes
leads to evidence that may be relevant to a criminal case.
SEARCHES WITH WARRANTS
Executing a Search Warrant
Time Constraints.
The service of a search warrant should take place promptly after its
issuance. The probable cause that formed the basis for the warrant could
dissipate if an excessive amount of time elapses between the time the
warrant is issued and the time it is served.
A second time restriction that is occasionally imposed pertains to
the time of day. Judges commonly restrict the service of warrants to the
daytime hours, or at least favor daytime service. The Federal Rules of
Criminal Procedure, for example, restrict the service of warrants to
daytime hours, unless the issuing judge specifically authorizes execution
at another time. Daytime hours, according to the Federal Rules, are
between the hours of 6:00 a.m. and 10:00 p.m.
The third time restriction concerns how long the police can search
for evidence. The general rule is that a search cannot last indefinitely.
Once the item in the warrant has been discovered, the search must be
terminated.
Scope and Manner of the Search.
Scope refers to where the police can look for evidence. Manner refers to
the physical steps the police can take to find the evidence in question,
including breaking down doors, forcibly opening locked cabinets, and
other actions that could potentially damage property.
Harris v. United States, 331 U.S. 145 (1947) provides further clarification:
“[T]he same meticulous investigation which would be appropriate in a
search for two small canceled checks could not be considered reasonable
where agents are seeking a stolen automobile or an illegal still.”
In Michigan v. Summers, 452 U.S. 692 (1981), “[A] warrant to search for
contraband founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper search is
conducted.” The law enforcement interests at stake in that decision were
officer safety, assistance with completion of the search, and prevention of
flight.
The police typically have to complete some type of a search record form
to be kept on file with the department. Interestingly, the police are not
required to notify the property owner of the steps necessary for the return
of the property or to remedy any perceived constitutional violation (see
City of West Covina v. Perkins, 525 U.S. 234 [1999]).
Media Presence.
In rare circumstances, the involvement of media in police activity results
in constitutional issues. In Wilson v. Layne, 526 U.S. 603 (1999), the
Supreme Court decided whether the police can bring members of the
media along during the service of an arrest warrant.
SPECIAL CIRCUMSTANCES INVOLVING BODILY INTRUSIONS
Given the extreme sensitivity of bodily intrusions, especially with regard to civil liberties,
police departments should take special care when engaging in them.
ELECTRONIC SURVEILLANCE
Electronic surveillance includes a variety of methods for spying on the activities
of suspected criminals, including both conversations and suspected criminal
actions. The methods used to spy on criminal suspects are quite diverse and
include wiretapping, “bugging,” hacking into computer transmissions, tracking
movements of persons and equipment, video surveillance, and seeing through
opaque surfaces using devices such as thermal imagers and “gun detectors.”
Title III and the Electronic Communications Privacy Act
In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets
Act (18
U.S.C. §§2510–20). Then, in 1986, Congress amended the act by passing the
Electronic
Communications Privacy Act (ECPA) (Pub. L. No. 99-508 [1986]). Both acts
govern law enforcement electronic surveillance activities at both the federal and
state levels. They are of particular importance because they preempt state laws
addressing electronic surveillance. That is, for electronic surveillance to conform
to constitutional requirements, it must not only abide by state law but also by the
1968 and 1986 acts.
The Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA), passed in 1978, regulates
electronic surveillance as it pertains to foreign intelligence gathering. FISA
regulates a number of specific activities, including physical searches for
intelligence-gathering purposes, the use of pen registers and so-called “trap-andtrace” devices, access to business records, and, of course, electronic surveillance.
FISA also created the secretive Foreign Intelligence Surveillance Court.
Among other things, the Protect America Act (2007) removed the warrant
requirement for government surveillance of foreign intelligence targets.