When Do Police Need an Arrest Warrant?

By Ephrat Livni, Esq. on June 30, 2016 | Last updated on March 21, 2019

It's easy to imagine after watching a few seasons of police procedurals on TV that you basically get criminal procedure, especially arrests. But you probably don't because even lawyers who practice in court every day have to check legal texts when preparing to challenge an arrest.

But understanding arrest is important for all because it can happen to anyone, even those of us who try hard to avoid trouble. So let's consider arrests generally and arrest warrants in particular. When do police need a warrant and what must it specify?

What's in a Warrant? When Can a Judge Issue One?

An arrest warrant is a document issued by a judge, based on evidence presented by law enforcement in sworn affidavits. The proof must amount to probable cause for arrest, be specific and sworn upon, making arrest reasonable under the circumstances. Once the judge grants a warrant, it allows police to execute the arrest.

Probable cause is not precisely quantifiable, and the contours of this complicated concept are always being redefined by criminal case law. But basically it means that police must be able to articulate specific and verifiable facts in support of arrest and swear to their veracity. What is enough differs slightly, or even a lot, depending on each case's specifics.

Still, whether or not a warrant is issued, police may arrest a suspect with probable cause. That is true even if no judge has reviewed the facts for sufficient evidence. It doesn't mean police can just do anything -- there is a reasonableness requirement. Spontaneous arrests must also be based on articulated facts amounting to probable cause and officers must swear to them afterward in reports, depositions and in court (as opposed to pre-arrest affidavits when there's a warrant).

When to Challenge an Arrest

The Fourth Amendment of the U.S. Constitution guarantees the right of the people to be free from unreasonable searches and seizures of their property and persons. Arrests, whether based on a warrant or an officer's spontaneous assessment of probable cause on the streets, can be challenged during criminal proceedings and may be excluded if the evidence proves insufficient retrospectively.

That's why it's important to mount a spirited defense with a capable attorney. A thorough lawyer who examines all the evidence and is willing to challenge even the most minute details can get a case dismissed based on substantive evidentiary issues as well as technical errors.

Consult With Counsel

If you are accused of a crime of any kind, talk to a lawyer. Many criminal defense attorneys consult for free or a minimal fee and will be happy to assess your case.

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