§ 9.05 ARREST WARRANTS: CONSTITUTIONAL LAW

• Jurisdiction: North Carolina

§ 9.05. Arrest Warrants: Constitutional Law

[A] Overview

[1] General Rules

All custodial arrests must be founded on probable cause. An arrest not founded on probable cause constitutes an unreasonable seizure of the person, in violation of the Fourth Amendment.

The law regarding arrest warrants is less categorical. As a constitutional matter, a police officer: (1) may arrest a person in a public place without a warrant, even if it is practicable to secure a warrant; but (2) may not arrest a person in her home without an arrest warrant, absent exigent circumstances or valid consent; and (3) absent exigent circumstances or valid consent, may not arrest a person in another person's home without a search, and perhaps an arrest, warrant. These rules are discussed in detail below.

[2] How Arrest Warrant Issues Arise

An arrest that is invalid because it was executed without a required warrant does not render unlawful the continued custody of the suspect and, therefore, does not by itself void a conviction.²⁸ Instead, the constitutionality of a warrantless arrest arises as an issue in a criminal prosecution in an evidentiary context, that is, when the arrest results in the seizure of evidence that the government wishes to use against the arrestee at her criminal trial.

For example, if the police seek to justify a warrantless search of D's home for evidence on the basis that it was an incident to D's lawful arrest in the residence, or if the police claim that the evidence was in lawful "plain view" at the time of D's arrest, then the lawfulness of D's arrest that gave rise to the search and/or seizure is brought into question. In such circumstances, the absence of an arrest warrant, if one is constitutionally required, serves as the basis for potentially excluding the seized evidence.

[B] Arrest in a Public Place: The No-Warrant Rule²⁹

In United States v. Watson,³⁰ federal postal inspectors arrested W in a restaurant for possession of stolen credit cards. The agents possessed probable cause for the arrest, but they acted without an arrest warrant, under authority of a federal statute, similar to those in nearly all states, that permits warrantless arrests on the basis of probable cause that the suspect "has committed or is committing a felony."

The Supreme Court upheld the constitutionality of the statute in the context of felony arrests in public places. The Court largely grounded its ruling on its reading of history. The majority observed that warrantless felony arrests were permitted at common law, and that this rule "survived substantially intact" thereafter in nearly every state, as well as in the federal system. The Court particularly noted the 1792 passage by Congress of a statute providing federal marshals with, in the words of the original statute, "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law." Since sheriffs at that time had authority to arrest felons without a warrant, this legislation demonstrated that contemporaries of the drafters of the Constitution saw no inconsistency between the Fourth Amendment and legislation authorizing warrantless felony arrests.

Justice Powell concurred in the opinion, but with reservations. He conceded that the Court's holding "create[d] a certain anomaly." The anomaly is that seizures of persons in public places are subject to less judicial scrutiny than searches and seizures of property, which generally require a warrant. As he observed:

There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few "jealously and carefully drawn" exceptional circumstances. . . . [¶] Since the Fourth Amendment speaks equally to both searches and seizures, and since an arrest, the taking hold of one's person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. Indeed, as an abstract matter an argument can be made that the restrictions upon arrest perhaps should be greater. A search may cause only annoyance and temporary inconvenience to the law-abiding citizen. . . . An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent. . . . [¶] But logic sometimes must defer to history and experience.

The dissenters questioned the Court's reliance on common law authority. They noted that only the most serious crimes were identified as felonies at common law. In contrast, many modern-day felonies were common law misdemeanors and, therefore, required an arrest warrant. The holding in Watson, therefore, "result[ed] in contravention of the common law."

[C] Arrest in the Arrestee's Home: The Warrant-Requirement Rule³¹

[1] In General

The Supreme Court ruled in Payton v. New York³² that the Fourth Amendment prohibits warrantless, nonconsensual entry into a suspect's home in order to make a "routine" (non-exigent) felony³³ arrest.³⁴

In Payton, police officers had probable cause to arrest D1 for a felony. They came to Di's home to arrest him without a warrant. They heard music playing inside the home, and knocked, but received no reply. After a brief wait, they broke in with the assistance of a crowbar. Nobody was inside, but they seized evidence in plain view. In a companion case, again with probable cause but without a warrant, the police knocked at D2's door, his three-year-old son opened it, and the officers, observing D2 inside, entered and arrested him without a warrant.

The Supreme Court, per Justice Stevens, held that the Fourth Amendment prohibited the warrantless entries in these two cases. The Court stated that, absent exigent circumstances, which it did not define, nonconsensual entry into a suspect's home in order to make an arrest requires an arrest warrant and "reason to believe the suspect is within."³⁵ If the officer is armed with a warrant, however, she has implicit authority to search anywhere in the home that the person named in the warrant might be found, until she is taken into custody.³⁶

The Payton Court justified the warrant requirement primarily on the ground that "physical entry of a home is the chief evil against which the wording of the Fourth Amendment is directed." The purpose of the arrest warrant, in other words, is not to protect the suspect from unreasonable seizure, but rather is to safeguard the integrity of the home from entry, and the occupants' privacy therein, in the absence of a prior determination of probable cause by a magistrate.³⁷

Justice Stevens pointed out that general warrants and writs of assistance were the immediate evils that motivated the adoption of the Fourth Amendment.³⁸ However, he said, "[i]t is . . . perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant." A broader purpose of the Amendment is to protect against...