Warrantless Arrest

There is a critical legal distinction between the probable cause needed for an arrest and the reasonable suspicion needed for a temporary detention. Reasonable suspicion allows an officer to briefly stop and question a person. It does not authorize a full custodial arrest.

We often see cases where officers blur these lines. They might stop a client based on a vague description and then transport them to the station without ever developing the higher level of proof required for an arrest. We argue that this transformation from a stop to a warrantless arrest was illegal. If the officer handcuffed the suspect and put them in the back of the car without probable cause the arrest is invalid even if they found evidence later. We use the timing of the discovery to suppress the evidence.

Police officers often rely on information relayed by other officers. The collective knowledge doctrine allows the arresting officer to rely on the knowledge of their colleagues. However this is not a blank check.

We challenge the source of the information. If the dispatch was based on an anonymous tip that was never corroborated the police cannot use it to justify a warrantless arrest. We trace the flow of information. We demand to know who the original source was and whether they were reliable. If the initial information was flawed the subsequent arrest is fruit of the poisonous tree. We dismantle the chain of communication to show that the arresting officer acted on bad intelligence.

Under the rule established in Payton v. New York the police are prohibited from making a non-consensual entry into a home to make a routine felony arrest. Police often try to circumvent this by tricking the suspect to come to the door.

We litigate these doorway arrests. If the police surrounded the house and ordered the suspect out with a megaphone that is a constructive entry. If the suspect opened the door and the police reached inside to grab them that is a violation. We analyze the body camera footage to determine exactly where the feet of the officer were planted. If they crossed the plane of the doorway without a warrant or consent the warrantless arrest is unconstitutional and any evidence found inside the home is inadmissible.

The only exception to the warrant requirement for in-home arrests is exigent circumstances. This applies when there is an immediate threat to life or a risk that evidence will be destroyed or a suspect is in hot pursuit.

We challenge the government claim of exigency. Police often create their own exigency. They might knock loudly and announce their presence and then claim they heard shuffling noises that sounded like evidence destruction. We argue that this police-created emergency cannot justify a warrantless entry. We demand proof that there was no time to get a telephonic warrant. In the modern era warrants can be obtained in minutes. We argue that the failure to do so was a choice to bypass the judiciary.

The case of Riverside v. McLaughlin set the strict 48-hour standard. We file writs of habeas corpus for clients who are lost in the system. We argue that administrative delays or the unavailability of a magistrate are not valid excuses.

If a client is detained over a long weekend without a probable cause determination we move for their immediate release. While a violation of this rule does not always result in the dismissal of charges it can lead to the suppression of statements made during the period of unlawful detention. We argue that any confession obtained after the 48-hour mark is the product of coercive delay.

The first appearance is the first opportunity for the defense to challenge the basis of the warrantless arrest. The judge reviews the police affidavit to see if it supports the charges.

We attack the affidavit. We look for conclusory statements. If the officer simply wrote that the defendant committed a crime without detailing the specific facts the judge should find no probable cause. We argue for immediate release on recognizance. We point out the weaknesses in the case at this earliest stage to prevent the prosecutor from filing formal charges. We use this hearing to lock the government into a version of events that we can attack later.

We analyze the spatial relationship between the arrest and the search. If the suspect was handcuffed and placed in a patrol car the police generally cannot go back and search their vehicle without a warrant or a specific reason to believe it contains evidence of the crime of arrest.

We cite the Supreme Court decision in Arizona v. Gant. We argue that once the suspect is secured there is no safety risk that justifies a warrantless search of the car. We move to suppress any drugs or guns found during such an illegal sweep. We compel the officers to explain why they felt a search was necessary when the suspect was already incapacitated.

When police arrest a driver they often impound the car and conduct an inventory search. This is intended to protect the property of the owner but it is often used as a pretext to search for evidence.

We challenge the validity of the impoundment. If the car was legally parked and a passenger was available to drive it there was no community caretaking function served by towing it. We argue that the impoundment was a sham designed solely to bypass the warrant requirement. We review the police department policy on towing. If the officer deviated from standard procedure it proves the search was investigative rather than administrative.

We litigate the definition of presence. Did the officer see the crime or hear it or smell it? If the officer arrived at a bar fight after it was over and arrested our client for misdemeanor battery based on bystander accounts the arrest is illegal in many jurisdictions.

We file motions to dismiss based on the invalidity of the arrest. We argue that the officer lacked the statutory authority to take the suspect into custody. While the officer could issue a citation they could not effect a full custodial arrest. We use this technical violation to invalidate the arrest and any search that followed.

Police often try to cure this defect by claiming a citizen arrest. They argue that the victim arrested the suspect and turned them over to the police.

We challenge the validity of the citizen arrest. Citizens must strictly follow the statute. They must clearly communicate their intent to arrest. Often the police simply tell the victim to sign a form. We argue that the police manipulated the victim to bypass the warrant requirement. We depose the citizen accuser to show they had no idea they were making an arrest. If the citizen arrest was invalid and the police arrest was invalid the entire custody is unlawful.