§ 9.06 Beyond Warrants: Executing an Arrest

• Jurisdiction: North Carolina

§ 9.06 Beyond Warrants: Executing an Arrest⁵⁶

[A] Arrests in the Home: When and How Entry of the Residence Is Permitted

The Fourth Amendment "require[s] that police actions in execution of a warrant be related to the objectives of the authorized intrusion."⁵⁷ This means that a valid arrest warrant "carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."⁵⁸ In the absence of such a reasonable basis, the police may not justify entry of a home on the basis of an arrest warrant.

Even if an officer has reason to know the suspect is inside a residence, the pre-constitutional common law provided that an officer was not generally permitted to enter a home by force to execute a warrant, unless he knocked, announced his purpose for entering, requested admittance, and was not granted entry. As discussed more fully elsewhere,⁵⁹ the Supreme Court ruled in Wilson v. Arkansas⁶⁰ that this common law "principle forms a part of the reasonableness inquiry under the Fourth Amendment." Specifically, a police officer — even one armed with a warrant — may not ordinarily enter a residence without satisfying this so-called "knock-and-announce" requirement. Although Wilson involved entry to conduct a search, this rule presumably applies to arrests as well.

[B] Force in Making an Arrest

The Fourth Amendment prohibits unreasonable seizures of persons (and property). As a consequence, police officers must not only possess probable cause to make an arrest, but they must not use excessive — i.e., unreasonable — force in seizing a person, whether to arrest or temporarily detain her. This statement of generality, however, obscures considerable detail and evolution in the Supreme Court's approach to the issue.

The Court's first significant Fourth Amendment decision in the "excessive force" field concerned deadly force. Until the fourteenth century, agents of the Crown were permitted to use deadly force to kill fleeing felons, regardless of the felony, and regardless of whether such force was necessary in order to prevent the escape. Eventually a necessity component was added to the rule, but it remained the case that deadly force was permissible to prevent any felon, even a nonviolent one, from avoiding arrest.⁶¹

In Tennessee v. Garner,⁶² the Supreme Court held that this common law rule, codified in many states, is unconstitutionally broad.⁶³ In Garner, O, an officer, was dispatched to a home on a "prowler inside call." He observed G fleeing in the direction of a six-foot-high chain-link fence. By use of his flashlight, O could tell that G was young, 5'5'' to 5'7'' tall, and apparently unarmed. He ordered G to halt; when the youth began to scale the fence, O shot him in the back of the head, killing him.

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