Arrest Warrant

views updated


Under the fourth amendment, arrest warrants, like search warrants, may be issued only upon probable cause, supported by oath or affirmation, and particularly describing the person to be seized. Much of the constitutional doctrine governing search warrants is therefore applicable by analogy to arrest warrants.

At English common law, a law enforcement officer was authorized to make a warrantless arrest when he had reasonable grounds to believe that a felony had been committed and that the person to be arrested was the perpetrator. A warrantless misdemeanor arrest, however, was permitted only when the misdemeanor was committed in the officer's presence. Consistent with this rule, Congress and almost all states have permitted warrantless arrests in public places since the beginning of the nation.

In view of this history, the Supreme Court held in United States v. Watson (1976) that the Fourth Amendment does not require a law enforcement officer to obtain a warrant for a felony arrest made in a public place even though there may be ample opportunity to obtain the warrant. Although recognizing that the preference for a neutral and detached magistrate applies to the issuance of arrest warrants, the Court reasoned that this judicial preference was insufficient to justify a departure from the common law at the time of the adoption of the Fourth Amendment and from the judgment of Congress and the states.

It may be argued that the preference for a warrant for searches should apply with equal, if not greater, force to arrests because of the significant infringement of personal liberty involved. Unless history is to be regarded as irrelevant in constitutional interpretation, however, the result in Watson is correct in view of the unambiguous history relating to warrantless arrests in public places. Moreover, the Court in Gerstein v. Pugh (1975) recognized that after a warrantless arrest a timely judicial determination of probable cause is a prerequisite to detention.

The Court has distinguished between arrests made in public places and those made in private homes. Because of, among other things, the historical importance attached to one's privacy at home and the uncertainty in the common law over warrantless arrests in private homes, a law enforcement officer may not enter a person's home to make an arrest without first obtaining a warrant. The distinction has been made in such cases as payton v. new york (1980) and steagald v. united states (1981). Probable cause in the context of arrest warrants means probable cause to believe that a crime was committed and that the person to be arrested committed it. Unlike a search warrant, an arrest warrant may be issued on the basis of a grand jury indictment, provided that the grand jury is "properly constituted" and the indictment is "fair upon its face." The Court's willingness to let a grand jury's judgment substitute for that of a neutral and detached magistrate is attributable to that grand jury's relationship to the courts and its historical role in protecting individuals from unjust prosecution. An information filed by a prosecutor, by contrast, will not justify the issuance of an arrest warrant, for the prosecutor's role is inconsistent with that of a neutral and detached magistrate.

The particularity requirement, expressly applied to arrest warrants by the warrant clause, mandates that the warrant contain sufficient information to identify the person to be arrested. It is intended to preclude the use of a general or "dragnet" arrest warrant.

If a person is illegally arrested without a warrant, such an arrest will not prevent the person from being tried or invalidate his conviction. Any evidence obtained as a result of the arrest, however, including statements made by the person arrested, may be excluded under the fruit of the poisonous tree doctrine as applied in wong sun v. united states (1963).

James R. Asperger


Lafave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment. Vol. 2:215–260. St. Paul, Minn.: West Publishing Co.

More From