Chapter 5 The Arrest

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 5 The Arrest

Once probable cause to arrest a murder suspect has been established and the necessary warrant obtained, several decisions must be made by the investigation/prosecution team. These decisions may be similar to considerations in other criminal cases, or they can be very different. The prosecutor must keep in mind the constitutional (and judicial) preference for a warrant at this critical phase of the proceedings, if for no other reason that a warrantless arrest triggers the rule of County of Riverside v. McLaughlin,¹ holding that a judicial determination of probable cause must be made within 48 hours of a warrantless arrest. Failure to hold an initial appearance within that prescribed period may result in the release of the defendant.

The initial decision to be faced is whether the arrest must be made immediately or whether it can or should be delayed. In the case of a serial killer or other violent offender who presents an immediate and ongoing threat to another specific person or to the public, every effort must be made to apprehend and arrest at once to prevent further loss of life. On the other hand, in the case of a single homicide, perhaps committed by an outraged spouse in the heat of passion, there may be no such need for speed in the arrest process. In these cases, the prosecutor and investigators can consider such tactical factors as the location of the arrest, the timing of the arrest, and even the setting of a postarrest interrogation in order to collect additional evidence or otherwise maximize their case. Even in the circumstance requiring an immediate arrest, tactical opportunities can arise that may yield the same benefits for the prepared law enforcement team.

For example, in a case in which the murder weapon is believed to be inside the killer's vehicle, arresting the suspect while he is still in that vehicle will greatly simplify the search and seizure issues relating to the weapon. If evidence of motive for the killing is expected to be found in the killer's residence, there could be similar advantages to arresting the suspect in his home. As discussed below, prudence dictates that where probable cause can be articulated, a search warrant be obtained for the home, to be served at the time of arrest

Generally speaking, there is almost always some advantage to be gained from a search of a murderer's residence. Following a murder in Arkansas, the search of the defendant's trailer yielded a handwritten diary that provided not only the motive for the killing (the victim/girlfriend had jilted the defendant) but also materials that provided rebuttal material for an insanity defense asserted at trial. (Even the fact that a residence is clean and neat could help to rebut an insanity defense, since many mental disease diagnoses include as a symptom the inability to keep up with one's daily affairs in an organized fashion.)

Location, Location, Location

By this point in the homicide investigation, the prosecutor and investigators usually have not only identified the killer but have a good idea of where additional evidence might be found that could be useful at trial. By timing the arrest at a point when the defendant can be found at that location, the law enforcement team may gain access to this area—the killer's residence, the home of an accomplice, a commercial storage locker, a boat or an RV, or the suspect's car—and find and seize additional evidence, either in plain view or with additional warrants. When time permits, of course, the best scenario is one in which both an arrest warrant for the defendant and a search warrant for evidence believed to be on the premises have been secured in advance.

The Suspect's Residence as the Scene of the Arrest

Much of the current law applicable to an arrest of a subject in his home arises from the Supreme Court's decision in Payton v. New York.² In Payton, New York detectives had focused upon the defendant as being the murderer of a gas station attendant. Two days after the murder, the detectives went to Payton's apartment without a warrant to make the arrest. After forcing entry, the officers found a shell casing that was admitted as evidence at trial. (Payton was not home, but was arrested later.) The Court held that the Fourth Amendment prohibited the police from entering the suspect's home to make a felony arrest without an arrest warrant. The Court also stated, however, that a valid arrest warrant founded on probable cause "implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe that the suspect is within."³

It naturally follows that investigators must be prepared to state why they believed that the suspect was "within" his home if they have entered his residence armed only with an arrest warrant. If the suspect was not home at the time of the entry, any evidence seized may be subject to suppression if that belief was unreasonable, unless the police also had a search warrant for the premises in hand. As with any entry into a residence, police should always take any opportunity to ask for consent to search. Regarding the issue of consent, if the defendant is present on the scene and refuses consent to search, the premises should be secured and a warrant obtained even if a spouse or cotenant does consent to the search. Where the suspect objects, the consent of another will not validate the warrantless search.⁴

Exigencies justifying warrantless entries into a residence generally include

• an objectively reasonable belief that an occupant is seriously injured or imminently threatened with injury,⁵
• prevention of the imminent destruction of evidence,⁶
• the protection of the safety of police officers,⁷
• hot pursuit,⁸ or
• the imminent destruction of the building.⁹

In the absence of such exigencies, a warrantless entry into a suspect's home will not be upheld.¹⁰

In the event that there is probable cause for a search of the residence, but not for an arrest warrant, all is not lost. The Court has held that when a search warrant has been authorized and is being executed, the resident of the premises may be detained while the search is being conducted.¹¹ Similarly, where evidence is reasonably believed to be within a residence, the premises may be temporarily "seized" or "sealed" by police while a warrant is obtained, and occupants may be prevented from entering the residence for a limited period until the warrant is obtained and executed.¹² In such cases, the evidence seized at the scene may provide a basis for an arrest where none existed previously.

While on the scene to execute an arrest warrant, the police may conduct a limited "protective sweep," if they have specific facts to believe that someone else posing a danger may be present.¹³ During such a sweep, evidence seen in plain view may be seized, even if the discovery of such evidence is not completely inadvertent.¹⁴

Prosecutors and investigators should also remember that the "knock and announce" rule cannot be discarded simply because the case involves a homicide. The common-law requirement that the police must announce their presence and provide residents an opportunity to open the door is embodied in the Fourth Amendment.¹⁵ While there are exceptions to this rule under exigent circumstances,¹⁶ the police are generally required to knock, announce their presence, and wait more than just a few seconds prior to forcing entry into a residence.

Most metropolitan police departments use a tactical or SWAT team to enter a residence prior to the execution of a warrant. The "entry" report is often written by the officer who first enters a structure. These officers should be trained in advance to note all circumstances of the entry (whether entry to a locked porch was required before approaching the front door, whether the front door was locked with one or more locks, whether the door was glass, wooden, steel, or another material, and the length of time that passed before entry was forced) so that the entry report does not merely read "Entry to the residence was forced at 1126 hours." Having the details of the entry can be crucial, especially when the officers do not have a "no-knock" warrant but observe exigent circumstances that lead them to make a "no-knock" entry.¹⁷

Remember that even where the Payton rule is violated by a warrantless...