An arrest constitutes a seizure and must therefore satisfy the Fourth Amendment’s requirement that all searches and seizures be reasonable. In order to be reasonable, all arrests must be supported by probable cause to believe that a crime has been committed and that the person to be arrested has committed it. A further, more difficult question is whether the determination of probable cause must be made prior to the arrest by a magistrate issuing an arrest warrant or whether police may lawfully make the arrest without a warrant so long as a magistrate subsequently finds probable cause.
The rules dictating the necessity of a warrant are best understood as not protecting the arrestee’s freedom from seizure, but rather any legitimate privacy interests in the physical area that police must enter to make the arrest. Viewed from that perspective, it is not surprising that the rules governing warrants vary depending on the location of the arrest.
In United States v. Watson, 423 U.S. 411 (1976), the Supreme Court upheld the constitutionality of warrantless arrests made in public places. The Court’s opinion in Watson relied heavily on a history that permitted such arrests. The common law authorized police to make warrantless arrests for misdemeanors that occurred in the officer’s presence and for all felonies. The traditional common law rule became prevailing contemporary practice under federal and state laws. In light of the national consensus, the Court declined in Watson to impose a different rule under the Fourth Amendment. The Court had no opportunity in Watson to address the constitutionality of warrantless arrests for misdemeanors committed outside a police officer’s presence. However, such arrests are rare because most state statutes prohibit officers from making custodial arrests for misdemeanors unless they are committed in their presence.
Suspects who are arrested without a warrant are entitled under Gerstein v. Pugh, 420 U.S. 103 (1975), to a ‘‘prompt’’ judicial determination of probable cause following their arrest. In Riverside v. McLaughlin, 500 U.S. 44 (1991), the Court explained that probable cause hearings provided within forty-eight hours of arrest are presumed to be prompt, absent a contrary showing. After forty-eight hours, the burden shifts to the government to demonstrate extraordinary circumstances justifying the delay.
Despite the Court’s allowance of warrantless arrests in public places, strategic or practical considerations may nevertheless persuade police to obtain an arrest warrant. For example, police may be uncertain whether their evidence amounts to probable cause. A judicial determination in advance of arrest mitigates the risk of an unlawful arrest based on the lack of probable cause. Obtaining arrest warrants and maintaining a computerized database of them also facilitates future arrests of wanted suspects during happenstance encounters such as traffic stops.
In contrast to arrests in public places, the Supreme Court has construed the Fourth Amendment to require warrants when police must search a home to make the arrest. In Payton v. New York, 445 U.S. 573 (1980), the Court held that the Fourth Amendment prohibits the warrantless entry into a suspect’s home to make an arrest. The Court explained that its holding was not intended to protect the suspect’s freedom of movement, implicated by the arrest, but rather the suspect’s privacy interests in the home, implicated by the police’s nonconsensual entry.
Typically, police are required to obtain a search warrant to justify entry into a person’s home. A search warrant is specific about location and requires the issuing magistrate to find probable cause that the person or thing to be seized is likely to be found on the premises to be searched. An arrest warrant, in contrast, only requires probable cause to believe that the suspect has committed a crime; the magistrate makes no determination about the suspect’s current location. Despite the general rule requiring search warrants, the Court held in Payton that a suspect’s privacy interests are sufficiently protected if the police enter an arrestee’s home with an arrest warrant and reason to believe that the arrestee is currently home.
If police seek to arrest a suspect in the home of a third party, however, yet another rule applies, and police must obtain a search warrant. In Steagald v. United States, 451 U.S. 204 (1981), the Court held that an arrest warrant for a suspect who lives elsewhere is insufficient to justify entering a third party’s home to make the arrest. To protect the third party homeowner’s privacy interests, police must obtain a search warrant based on probable cause to believe that the arrestee will be found on the premises.
Although the three rules established in Watson, Payton, and Steagald are relatively straightforward, their application can raise trickier issues. For example, it may be unclear whether the arrest is in a public place. In United States v. Santana, the defendant was standing directly in her open doorway at the threshold of her home. The Supreme Court noted that the doorway was private in the same sense as a defendant’s yard, but nevertheless held that the defendant was in a ‘‘public place’’ for purposes of applying Watson and could be arrested without a warrant. Currently, lower courts remain divided on the question of whether the Watson rule or Payton rule applies when police arrest the suspect in a commercial establishment that is not open to the general public.
Another issue that complicates the application of the rules is the defendant’s ability to challenge a violation of them. A person who challenges a police search must have a reasonable expectation of privacy in the area searched (see Rakas v. Illinois, 439 U.S. 128, 1978). Accordingly, if police violate Steagald by entering a third party’s home to arrest a wanted suspect, the suspect will not be permitted to challenge the unlawful search if he or she lacks reasonable privacy expectations in the third party’s home. Because the Steagald rule is intended to protect privacy rights and not the suspect’s liberty, any challenge of the search would need to be made by a person who enjoys privacy rights in the home. If no such person has an incentive to complain, the Fourth Amendment violation may never be challenged at all.
ALAFAIR S. BURKE
References and Further Reading
Cases and Statutes Cited