Arrest Warrants

Police often question people without arresting them, and Terry v. Ohio (1968) established that police may even stop and frisk a person for weapons without a warrant. Moreover, many jurisdictions have widened traditional common-law rules that allow for warrantless arrests of individuals for misdemeanor offenses involving breach of the peace and committed within the presence of officers to include all offenses committed in officers' presence. When in the absence of such exceptions or exigent circumstances, however, police officers are expected to obtain an arrest warrant before making an arrest. To do so, the officers must establish probable cause, following a similar procedure for obtaining a search warrant under the Fourth Amendment. An officer must appear before a neutral magistrate and describe with particularity the person the officer intends to arrest.

It is possible for an officer who does not know an individual's name to request a “Joe Doe” warrant, but the warrant must specify other precise descriptors, such as residence and occupation, until the officer is able to secure the defendant's identity. One fascinating possibility in the area of arrest warrants is that of describing an arrestee solely on the basis of a DNA profile.

Precedents since Chimel v. California (1969) are clear that an arrest warrant does not authorize police to search an entire residence where the warrant is served, although arrest warrants generally grant police the authority to search the person him- or herself (primarily to protect against weapons), as well as the area within the defendant's immediate reach.

Generally, courts exclude evidence from arrests for which police did not have probable cause or for which they did not secure a warrant. As in other applications of the exclusionary rule, however, courts generally make some leeway for “good faith” cases, especially when mistakes are the result of judicial clerks rather than of law enforcement officials themselves. Similarly, some courts have ruled that the discovery of an outstanding arrest warrant dissipates, or eliminates, the taint and thus the unconstitutionality of an initial illegal detention. By contrast, in Davis v. Mississippi (1969), the Supreme Court invalidated the use of fingerprint evidence that police had secured through the use of dragnet detentions. Similarly, in Steagald v. United States (1981), the Supreme Court ruled that police could not use arrest warrants to search the homes of third parties absent consent or exigent circumstances.

Unlike regular search warrants, arrest warrants generally do not become “stale” if not executed immediately. Police often check for outstanding arrest warrants against individuals whom they stop for other reasons.