Chapter 4: Arrest and Search with Warrants

Chapter 4: Arrest and Search with Warrants

Overview of Warrants

  • Arrest Warrant

    • Definition: An order issued by a judge directing law enforcement officers to arrest an individual identified as one who has committed a specific criminal offense.

    • Purpose: To seize the person.

  • Search Warrant

    • Definition: An order issued by a judge directing law enforcement officers to search a particular location for evidence connected with a specific criminal offense.

    • Purpose: To seize the evidence.

Components of Warrants

  • A warrant must have three essential components:

    1. Must be issued by a neutral and detached magistrate.

    2. Probable cause is required.

    3. Must satisfy the Fourth Amendment requirements of particularity.

    • This protects an individual’s liberty and privacy by ensuring specificity:

      • “Who issued it, why issued it, and be specific.”

The Warrant Clause of the Fourth Amendment

  • Text: “… and no Warrants shall issue, but upon probable cause, supported by the Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Meeting the Particularity Requirement for Arrests

  • There are two ways to satisfy the Fourth Amendment's particularity requirement:

    1. Supply the suspect's name (if known).

    2. Provide a specific description of the suspect.

Executing an Arrest Warrant

  • When to Knock and Announce Presence:

    • Officers must knock and announce their presence before entering, but exceptions exist.

  • Property Damage:

    • Police are allowed to inflict as much damage as is necessary, ensuring the least intrusion into the subject's privacy.

    • A court will evaluate whether the damage was reasonable, excessive, or malicious based on the evidence to be seized.

    • Police can search anywhere the items sought could reasonably be hidden, including inside walls and under floors.

    • Malicious damage that shocks the consciousness means police are liable for the damage.

  • Police Use of Deadly Force:

    • Transitioning policies were influenced by landmark cases.

    • 1972: NYPD’s policy replaced the fleeing felon rule with the “defense of life” rule.

    • Conditions for Using Deadly Force:

    • Only permissible when there is an imminent threat of death or serious bodily injury to the officer or a third person.

    • Tennessee v. Garner (1985):

    • The Supreme Court ruled the fleeing felon rule unconstitutional.

    • “Deadly force may not be used unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

Consequences of Arresting the Wrong Person

  • Focus Question: What can go wrong if the police arrest the wrong person? What are the negative consequences of an invalid warrant?

    • Legality of an arrest alone does not matter.

    • Police can apologize and release the person with no repercussions.

    • A person unlawfully arrested has limited recourse for civil compensation.

    • Critical issues arise with the constitutionality of an arrest:

    • If an arrest is unlawful, evidence seized as a result may be excluded from court based on the doctrine of "fruits of the poisonous tree."

What is an Arrest?

  • Definition: An arrest occurs when a police officer detains a person or deprives them of freedom due to an alleged criminal offense.

  • Fourth Amendment Definition: Defined as a “seizure.”

  • A reasonable seizure is based on probable cause.

Executing a Search Warrant

  • Time Restrictions:

    • There are specific timeframes for when a warrant may be served and how long police can conduct a search.

  • Scope and Manner of the Search:

    • Considerations include the size of the items to be seized and the permissible level of damage.

    • Procedure following the service of the search warrant includes documenting an inventory of seized items.

Search Warrant Focus Questions

  • Search Time Restrictions:

    • Police generally cannot search a house at nighttime unless specified by a special search warrant.

    • Standard search warrants restrict execution to daytime hours (6:00 AM - 10:00 PM).

  • Search Entry Requirements:

    • Police must complete the search in one attempt; re-entry necessitates obtaining a new search warrant.

  • Limits of Search Scope:

    • Example: Police cannot search a jewelry box for a TV; the size pertains only to the items authorized for seizure.

Detainee Search During a Warrant Execution

  • Interference by Residents:

    • If residents interfere with the search, they can be detained and subjected to a pat-down for officer safety.

    • Guests not residing at the property may leave.

  • Media Presence During Searches:

    • Wilson v. Layne (1999):

    • Ruled that it is a violation of the Fourth Amendment for police to allow media presence during the execution of a warrant unless it aids in the execution.

Media Presence and Its Implications

  • Police may seek media presence during searches for public relations but risks violating privacy rights if not justifiable.

Electronic Surveillance

  • Focus Question: Does the Fourth Amendment apply if an informant uses a police-planted listening device?

    • Answer: No, as the recordings will not be excluded if the interception is consensual.

The Foreign Intelligence Surveillance Act (FISA)

  • Overview:

    • Established in 1978 to regulate electronic surveillance related to foreign intelligence.

    • Title III and ECPA pertain to domestic surveillance.

Foreign Intelligence Surveillance Court

  • A secretive court created under FISA that reviews applications for warrants related to national security surveillance.

    • Noted for its secret nature concerning the volume and content of its warrant applications.

Legislative Updates and Sunset Clauses

  • Protect America Act and USA Freedom Act:

    • Controversial legislation related to FISA, allowing warrantless interception of certain communications.

    • Protect America Act expired in February 2008, while the USA Freedom Act expired in December 2019.

    • The USA Freedom Act came into effect on June 2, 2015, after the Patriot Act expired.

  • Definition: A sunset clause is a provision that allows laws to cease effectiveness after a specified date unless extended by legislative action.

Types of Electronic Surveillance

  • Techniques include:

    1. Wiretapping

    2. Hacking into computer transmissions

    3. Tracking movements of persons

    4. Video surveillance

  • Legal Requirement: Police necessitate a search warrant to conduct these activities.

    • If conducted by a private party, remedies for unlawful surveillance may differ.

Review: Sources for Probable Cause

  • Firsthand Knowledge:

    • Information obtained directly by officers or their colleagues.

  • Informants:

    • Information from victims, witnesses, accomplices, or others familiar with the incident.

    • Credibility and reliability of informants are fundamental.

    • Hearsay cannot serve as probable cause unless it is corroborated. Officers must justify informant's credibility and their knowledge of the crime.

  • Anonymous and Telephone Tips:

    • These can contribute to probable cause if they meet the totality-of-the-circumstances test.

    • For example, if an informative tip with rich detail leads to discovering a suspect and related evidence, it can establish probable cause without a warrant.