Discussion Question

Why do you think a judicially issued warrant is required to make an arrest if the officer does not witness the criminal conduct? Why is a warrant not required when the officer witnesses the criminal conduct? Do officers ever make arrests without personally witnessing criminal conduct? How close in time must the criminal conduct be to the arrest to justify an arrest without a warrant? Do officers ever exceed their authority when making an arrest? What should be the repercussions of making an arrest without a warrant when a valid warrant should be required? 

• An arrest warrant is required when law enforcement officers do not personally witness criminal conduct in order to meet the requirements of the 4th amendment and guard against the violation of an individual's constitutional rights. This is meant to protect individuals from being arrested without probable cause, which is commonly defined as "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true," that they committed a crime. An arrest warrant is not required when a law enforcement officer personally witnesses criminal conduct because the requirement for probable cause is met when the officer sees the crime being committed. Since arrest warrants are generally based on sworn statements from law enforcement officers, this expedites the arrest process by not requiring the officer to leave the scene of a crime, go before a judge to state what they witnessed, and then go back out to locate the individual who they witnessed committing a crime earlier. Arrests without a warrant must occur within a reasonable amount of time from when the criminal conduct was witnessed. For practical reasons, the arrest doesn't have to occur instantaneously after criminal conduct is witnessed, but law enforcement officers probably can't wait a month to make a warrantless arrest either. Law enforcement officers commonly make arrests for crimes that they have not personally witnessed when they are acting pursuant to an arrest warrant. In other instances, law enforcement officers may also make an unconstitutional arrest without witnessing criminal conduct themselves and without obtaining an arrest warrant for a variety of reasons. Since the probable cause is a subjective determination (during the appeals process, even judges disagree as to whether or not probable cause existed in any given situation), there is always the potential for there to be disagreement as to whether or not law enforcement officers exceeded their authority in an individual case. In addition to whether or not the probable cause requirement was met, law enforcement officers may also exceed their authority by using excessive force when making the arrest. When officers make an arrest without a valid warrant when one is required, the arrest is will be found invalid and all evidence resulting for the arrest may be thrown out. Additionally, in some instances, the arresting officer or police department may be sued by the arrestee in civil court for false arrest.

Practice Question

 Jane witnesses Frederick committing a crime. She chases after Frederick, but he is too fast and escapes. What process must Jane follow in order to effectuate an arrest of Frederick? 

• Assuming that Jane is a law enforcement officer, in order to arrest Frederick she must go before a judge to get an arrest warrant once she has given up her pursuit and he has escaped. The judge will hear Jane's evidence and then make a determination as to whether or not Fredericks's conduct that Jane witnessed constitutes probable cause that he committed a crime. If the judge determines that probable cause to arrest Frederick does exist, they will issue an arrest warrant empowering Jane to arrest Frederick. Once the arrest warrant has been issued by the judge, Jane can arrest Frederick within the scope of the arrest warrant (which may designate the time, place, or manner that the arrest may take place).

Academic Research

• Garrett, Reggie, Why Arrest Them All and Let the Courts Sort it Out is Not the Answer (May 22, 2014). Available at SSRN: https://ssrn.com/abstract=2440596 or http://dx.doi.org/10.2139/ssrn.2440596 
• Roberts, Anna, Arrests As Guilt (April 23, 2018). Alabama Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3167521 
• Harmon, Rachel, Why Arrest? (September 20, 2016). Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307 (2016). ; Virginia Public Law and Legal Theory Research Paper Series 2016-55. Available at SSRN: https://ssrn.com/abstract=2673553 or http://dx.doi.org/10.2139/ssrn.2673553 
• Mughal, Munir Ahmad, Arrest and Detention (November 14, 2011). Available at SSRN: https://ssrn.com/abstract=1959322 or http://dx.doi.org/10.2139/ssrn.1959322 
• Gershowitz, Adam M., Justice on the Line: Prosecutorial Screening Before Arrest (March 30, 2018). University of Illinois Law Review, Forthcoming; William & Mary Law School Research Paper No. 09-362. Available at SSRN: https://ssrn.com/abstract=3037172 or http://dx.doi.org/10.2139/ssrn.3037172 
• Clancy, Thomas K., What Constitutes an 'Arrest' within the Meaning of the Fourth Amendment (2003). Available at SSRN: https://ssrn.com/abstract=1602054