Arrest Warrants

2011-11-08 11:35:30

Law enforcement officials in America and in England in the period preceding the American Revolution did not have broad inherent authority to search and seize; such actions required authorization, and the warrant system was the primary means to confer that authority. Those were simple times and warrantless searches and seizures were virtually nonexistent. Only one type of warrantless seizure may have been common: the arrest of a suspected felon. Such arrests were rarely made except in hot pursuit of the felon. The common law also permitted warrantless arrests for misdemeanors committed in the officer’s presence.

There existed at common law the legal process of obtaining an arrest warrant for criminal offenses. An arrest warrant was a command to the sheriff of the county or the marshal of the court to apprehend the suspect and bring him or her to court. This warrant was issued upon a showing of probable cause that the person had committed a felony. It was issued by the court after examining the requesting party under oath and reducing that examination to writing concerning whether a crime had been committed and the party’s grounds for suspicion. The person suspected of the crime had to be named.

A similar legal process to obtain a warrant continues to this day. The contemporary authority of the police to arrest with or without warrants varies from state to state based on each state’s law. Some of those considerations are whether the crime is a misdemeanor or felony and whether the crime occurred in the officer’s presence.

In the twentieth century, the Supreme Court in two separate cases addressed the question of whether the Fourth Amendment required law enforcement officials to obtain a warrant before arresting a suspect. The Court made a distinction between arrests in the home and arrests in public. For arrests in a person’s home, the Court in Payton v. New York, 445 U.S. 573 (1980), mandated that an arrest warrant was required and that that warrant carried the implicit authority to enter the home to arrest the suspect.

For arrests occurring in public, however, the Court in United States v. Watson, 423 U.S. 411 (1976), established that no warrant was required. The distinction between the two situations was based on the Court’s view that the physical intrusion into a person’s home is the ‘‘chief evil’’ that the Fourth Amendment is designed to prevent and that an intrusion into a home to arrest invades its sanctity and privacy. Thus, as Payton said, the ‘‘Fourth Amendment draws a firm line at the entrance of the house.’’ Accordingly, absent exigent circumstances, a warrant is needed. In contrast, Watson relied heavily on the prevailing common law view that no warrant is needed for an arrest occurring in public.


References and Further Reading

  • Clancy, Thomas K., What Constitutes an ‘‘Arrest’’ within the Meaning of the Fourth Amendment, Vill. L. Rev. 48 (2003): 129
  • ———, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, Memphis L. Rev. 25 (1995): 483
  • Coke, Edwardo. Institutes of the Laws of England. 1797, 177
  • Davies, Thomas Y., Recovering the Original Fourth Amendment, Mich. L. Rev. 98 (1999): 547
  • Grano, Joseph D., Rethinking the Fourth Amendment Warrant Requirement, Am. Crim. L. Rev. 19 (1982): 603
  • Hale. The History of the Pleas of the Crown. 1847, 85–104
  • Wasserstrom, Silas J., The Incredible Shrinking Fourth Amendment, Am. Crim. L. Rev. 21 (1984): 257

Cases and Statutes Cited

  • Payton v. New York, 445 U.S. 573 (1980) 
  • United States v. Watson, 423 U.S. 411 (1976) 

See also Arrest; Seizures