Warrants Case Analysis

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Defendants affected by the decision that a search warrant justifies an arrest without an arrest warrant, prior to the search itself, should continue to raise this issue and preserve it for possible review in the Supreme Court. It may not succeed, but it is worth preserving.

The problem with the court of appeals’ decision is that it rests on an at least partially insupportable foundation. The bulk of the court’s justification for its decision is the quotation from U.S. v. Winchenbach, 197 F.3d 548, 553 (1st Cir. 1999), that, “The impartial determination that supports the issuance of a search warrant justifies a greater intrusion than that supporting the issuance of an arrest warrant.”

Effectively, the court is stating that a reasonable person would prefer to be arrested than have his house searched. However, not only is there no evidence to support this conclusion, but common sense dictates that many, if not most, people would far prefer to have their house searched than be arrested.

	Links Wisconsin Court of Appeals Related Article Search warrant permits arrest also

Furthermore, there is arguably no “lesser” or “greater” intrusion to speak of, and instead, comparing the two intrusions is a hopeless comparison of apples and oranges.

The only other support that the court gives is its conclusion that the U.S. Supreme Court decision in Payton v. New York, 445 U.S. 573 (1980), which prohibits a warrantless arrest in the home, is essentially grounded, not on the freedom from arrest, but the “physical integrity of the home.”

This argument has far more support than the one comparing degrees of intrusion. The court in Winchenbach noted, “warrantless felony arrests outside of the home routinely have survived constitutional attack as long as probable cause exists. From a Fourth Amendment standpoint, there is no valid reason why the same principle should not apply to arrests within a suspect’s residence so long as the police are there lawfully. In that event, ‘a warrantless arrest there is no more objectionable than a warrantless arrest on the street.’” Winchenbach, 197 F.3d at 554 (cites omitted).”

Defendants who seek to challenge warrantless arrests such as the one in the case at bar may win the argument on whether a search or an arrest is the greater intrusion. Ultimately, however, they will lose unless they find a way around the other support for the rule given in Winchenbach.

– David Ziemer

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David Ziemer can be reached by email.