Arrest Warrant

• Author: James R. Asperger
• Pages: 120-121

Page 120

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

Page 121

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)...