The Fourth Amendment states, in part, that warrants should not be issued unless there is “probable cause, supported by Oath or affirmation…describing the…persons or things to be seized.” In 1806, the U.S. Supreme Court, based on mere assumption, first held that the Framers intended the Fourth Amendment to protect citizens from arbitrary arrests by the government. Today, however, the law is well-settled as indeed having originated from the Constitution.
Submission of the Warrant to a Neutral Magistrate
In order to place others under arrest, law enforcement officials must generally first convince a neutral magistrate or judge that the targeted individual should be arrested and taken into custody. This “convincing” is done through the submission of a warrant to the judge.
Although the law varies among states, in general, to ensure that an arrest warrant is granted, the police must show that there is probable cause, i.e., sufficient information to reasonably believe that illegal activity has occurred or is taking place. In order to meet this requirement, law enforcement must typically set forth, at minimum, the following facts:
- The name of the individual to be arrested
- That the named individual participated in a crime
- When and where the crime occurred
Such facts are usually submitted on an affidavit accompanying the warrant, after which a neutral magistrate evaluates such facts for accuracy and reliability. Affidavits that are based primarily on an officer’s conclusions rather than objective facts typically do not provide the sufficient basis for probable cause. Among other grounds, warrants may also be invalidated where officers have been untruthful regarding alleged facts in the affidavit.
Generally, once an arrest warrant has been signed by a neutral magistrate or judge, law enforcement may legally arrest the named individual and take her into custody.
ceptions to the Warrant Requirement
In numerous circumstances, law enforcement officers are not required to obtain arrest warrants prior to placing others under arrest. In general, police may arrest without a warrant if there is a sufficient risk that the individual to be arrested may flee or escape apprehension prior to the granting of an arrest warrant. Arrests may also be permissible without a warrant if there is a risk or likelihood that someone’s life is in danger or that evidence will be destroyed. It should also be noted that the law further varies depending on where the individual is arrested, e.g., in public, the individual’s home or the home of another.