Arrests with a Warrant and Without a warrant (Chapter 6) Black’s Law Dictionary defines an arrest warrant as “a writ or precept issued by a magistrate, justice, or other competent authority, addressed to a sheriff, constable, or other officer, requiring him to arrest the body of a person therein named, and bring him before the magistrate or court to answer, or to be examined, concerning some offense which he is charged with having committed.”1 There are different types of arrest warrants. Among these are bench warrants, issued when a person does not appear for a hearing; telephonic warrants, issued after a telephone communication between the issuing judge and the officer applying for it; and John Doe warrants, issued when the person to be arrested is well described in the warrant but not identified by name. Warrant forms vary from state to state and even from one city to another, but they typically include the following: which court is issuing it, the name of the person to be arrested, the offense charged and some specifics of the offense, an order for the officer to bring the arrested person before the issuing court, the date the warrant was issued, (pg158) and the judge’s or magistrate’s signature. (Figure 6.2 shows an example of an arrest warrant from the state of Tennessee.) This section looks at when a warrant is needed, what happens when one is issued, the contents of a warrant, what happens when a warrant is served, the time of day arrests can be made, the possession and expiration of a warrant, and legal authorizations other than a warrant (pg160). When Is a Warrant Needed? Most arrests are made without a warrant. Nonetheless, there are specific instances when a warrant is needed, including the following: 1. A warrant is needed if the crime is not committed in the officer’s presence. When crimes are not committed in the presence of an officer, the victim reports the crime to the police and then the police investigate. Examples include the following: ◆ Report by a victim of a robbery. ◆ Report by a victim of a sexual assault. ◆ Report by a wife of her husband’s murder. After investigation, the police present an affidavit to the judge or magistrate and ask for an arrest warrant to be issued. If the judge or magistrate concludes probable cause exists, the warrant is issued and then executed by the police. This sequence, however, is subject to exceptions, particularly in cases where exigent (emergency) circumstances make it necessary for the police to take prompt action to prevent the suspect’s escape. 2. A warrant is needed if the suspect is in a private residence and there is no reason for an immediate arrest. The police may not enter a private home to make a routine warrantless arrest (Payton v. New York, 445 U.S. 573 [1980]). In this case, after two days of intensive investigation, detectives assembled sufficient evidence to establish probable cause to believe that Payton had murdered the manager of a gas station. They went to Payton’s apartment to arrest him without a warrant. The warrantless entry and arrest were authorized by New York law. They knocked on the metal door, and when there was no response, they summoned emergency assistance and then used crowbars to open the door and enter the apartment. No one was there, but in plain view was a .30-caliber shell casing that was seized and later admitted into evidence at Payton’s murder trial. Payton was convicted; he appealed, alleging that the Fourth Amendment requires police officers to obtain a warrant if making a felony arrest in a private residence when there is time to obtain a warrant. The Supreme Court agreed, saying that a warrant is needed in these types of cases (routine arrests in the absence of consent) and that state laws authorizing warrantless arrests in routine felony cases are unconstitutional. (See the Case Brief for more details on this case.) 3. A warrant is needed in home entries for minor offenses. In the case of a minor offense, a warrantless entry into a home to make an arrest is seldom justified. For example, suppose an officer suspects a person of driving while intoxicated, a nonjailable offense in the particular state. The officer goes to the suspect’s home to make an arrest before the alcohol can dissipate from the suspect’s body. The officer cannot enter the home without a warrant or consent. Given the state’s relatively tolerant view of this offense, an interest in preserving the evidence cannot overcome the strong presumption against the warrantless invasion of homes. Thus, in determining whether there are exigent circumstances, a court must consider the seriousness of the offense (Welsh v. Wisconsin, 466 U.S. 740 [1984]). However, home entry in felony or misdemeanor cases is justified if there is valid consent or if state law or state court decisions allow it. The Service of a Warrant An arrest warrant is directed to, and may be executed by, any peace officer in the jurisdiction. In some states, a properly designated private citizen can also serve a warrant. The rules for serving warrants within and outside of a state differ. Arrests Without a Warrant Although arrest warrants are preferred by the courts and desirable for purposes of protecting police from liability lawsuits, they are, in fact, seldom used in police work. About 95 percent of all arrests are made without a warrant. Police officers have a general power to arrest without a warrant in five situations: ◆ Felonies committed in the presence of officers. ◆ Misdemeanors committed in the presence of officers. Crimes committed in public places. ◆ When exigent (emergency) circumstances are present. ◆ When there is danger to the arresting officer. Felonies Committed in the Presence of Officers (pg166) The authority to arrest for felonies committed in the presence of officers is generally based on old common law principles, which have since been enacted into law in various states. For example, suppose that an officer on patrol sees a robbery being committed. She can make the arrest without a warrant. (See Figure 6.3.) The term in the presence of a police officer refers to knowledge gained firsthand by the officer through any of his or her five senses—sight, hearing, smell, touch, or taste. Therefore, the police may make a warrantless arrest if probable cause is established by any of these means: ◆ Sight. The officer sees Fred stab Jim or Steve breaking into a residence. ◆ Hearing. The officer hears a shot or a cry for help from inside an apartment. ◆ Smell. The officer smells gasoline, gunpowder, gas fumes, or marijuana. ◆ Touch. The officer examines doors or windows in the dark or touches a car muffler or engine hood to determine if a motor vehicle has just been used. ◆ Taste. The officer tastes a white powder to identify it as sugar, salt, or something else. Taste is the least used of the five senses—and the least reliable. Misdemeanors Committed in the Presence of Officers The rule in most states is that misdemeanors committed in the presence of officers also give the police authority to make an arrest. Under the old common law, however, the police could not make an arrest if the misdemeanor was merely reported to them by a third party. In states that still observe this common law rule, the officer must obtain an arrest warrant or have the complaining party file a complaint, which can then lead to the issuance of a warrant or summons. However, this common law rule requiring a warrant for these types of cases is now subject to so many exceptions that police del Carmen, Rolando V.; Hemmens, Craig. Criminal Procedure: Law and Practice (Page 158). Cengage Learning. Kindle Edition. 
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