3.3 When Warrant Is Required

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

3.3 WHEN WARRANT IS REQUIRED

3.301 Constitutional Requirements. The United States Supreme Court has held that nothing in the Fourth Amendment prohibits the police from making warrantless felony arrests upon probable cause in a

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"public place" ¹⁷ even though an officer had adequate opportunity to procure a warrant after developing probable cause for arrest. ¹⁸ In other words, the Court does not condition the authority of officers to make warrantless felony arrests in public places upon the existence of exigent circumstances. ¹⁹ The Fourth Amendment likewise does not forbid warrantless arrests for misdemeanors if they are committed in the officer's presence, even where the offense is punishable only by a fine. If probable cause exists and the misdemeanor offense is committed in the officer's presence, the Fourth Amendment is satisfied. ²⁰ Even if state law does not authorize a custodial arrest for the misdemeanor offense, a warrantless arrest does not necessarily violate the Fourth Amendment. ²¹

On the other hand, the Court has held that an arrest warrant (including a warrant for a misdemeanor arrest) is required, in the absence of exigent circumstances or consent, in order to enter a dwelling (which includes the curtilage of the home) in which the suspect lives to effectuate the arrest. ²² The Court has held that an arrest warrant carries with it the right to enter the suspect's dwelling without consent when there is reason to believe the suspect is within. ²³ The Court has yet to describe completely the nature of the "exigent circumstances" that would justify making a non-consensual entry into the suspect's dwelling without an arrest warrant. The Court has held, however, that the gravity of the offense is an important factor to be considered in deciding whether an exigency exists. While no exigency is created simply because the offense is a serious one, application of the exception will be rarely sanctioned when the offense is a minor one, such as fleeing the scene of an automobile accident. ²⁴ The ban against warrantless entries into a home in

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order to make an arrest does not apply when the police are in hot pursuit. ²⁵ Furthermore, when police have an objectively reasonable belief that an occupant has been hurt or that injury is imminent, police may enter a residence under the "exigent circumstances" exception regardless of their subjective motives. ²⁶

Finally, the Court has held that when the police want to make a non-consensual...