Criminal Law

Arrest Warrants

By Micah Schwartzbach, Attorney
Most arrests occur without arrest warrants—do arrest warrants even matter?

Arrests happen all the time in the United States, but rarely do they occur by way of arrest warrant. The U.S. Supreme Court has established that the Constitution rarely requires them, even when officers have enough time to get them. (U.S. v. Watson, 423 U.S. 411 (1976).)

Arrest Warrant Basics

An officer typically obtains an arrest warrant by submitting an affidavit to a judge or magistrate. (Depending on state law, an officer might even be allowed to complete a warrant application by phone.) To get a warrant, the officer has to provide information that establishes probable cause to believe that the named person committed a particular crime.

Arrest warrants typically need specify only:

  • the name of the person to be arrested
  • the charged crime, and
  • the name of the court issuing the warrant.

The Supreme Court has held that the privacy interest in one’s home is strong enough to require an officer to get a warrant before intruding. In other words, before coming in, a “neutral and detached” judge or magistrate must determine that there’s probable cause for the arrest. But homes and other private premises aside, officers generally don’t need arrest warrants in order to make arrests. (Payton v. New York, 445 U.S. 573 (1980).)

Search Warrants vs. Arrest Warrants

Search warrants—warrants that authorize the police to search a particular place or thing—differ from arrest warrants in important ways.


Among the key differences between search and arrest warrants is timing. A search warrant, like an arrest warrant, must rest on a finding of probable cause; in the case of a search warrant, that’s probable cause to believe that someone has committed a crime and that the place to be searched holds evidence of it. A search warrant has to be issued quickly enough so that probable cause hasn’t evaporated.

Suppose an officer applies for a search warrant, describing facts suggesting that a gun used in a robbery was in the home to be searched. If the most recent indication that the gun was in the house is an observation made three months ago, there might no longer be probable cause to believe it’s in the home. If there isn’t still probable cause to believe the evidence is still on the premises, there isn’t a basis for the search warrant.

An arrest warrant, on the other hand, isn’t nearly as time sensitive. That’s because once the government has probable cause to believe that someone committed a crime, there’s very little that can “undo” that probable cause. Probable cause for the person’s arrest lasts indefinitely, unless evidence eliminating it comes to light.

Seizing Evidence

The “search” in “search warrant” assumes that officers will find and seize incriminating evidence, whether that be drugs, weapons, cash, electronic files, or virtually anything else. But the absence of the term “search” in “arrest warrant” doesn’t mean that officers can’t nab evidence in the course of apprehending someone.

Officers typically have less of a justification for moving around a home when they’re making an arrest than when they’re searching. Regardless, if they’re properly executing an arrest and stumble across something incriminating, they can seize it pursuant to the “plain view” doctrine. If, for example, officers enter Boyd’s home and arrest him pursuant to a warrant and notice a plastic bag of apparent methamphetamine on the table next to him, they can probably seize it.

Result of a “Bad” Arrest

Suppose officers don’t have a warrant for Boyd’s arrest but nevertheless bust into his home and slap handcuffs on him. The officers weren’t aware of any exigent (emergency) circumstances—like Boyd yelling at his roommate, “Flush the stash!” Their entry into the home to make the arrest is illegal.

But an arrest being “bad” in this way doesn’t have any effect on the basis for believing the suspect committed the crime in question. So, the illegal arrest won’t stop the prosecution from bringing Boyd to trial. If necessary, officers could always re-arrest him after they’ve retrieved a warrant.

But there’s at least one potential consequence of an invalid arrest: Any evidence the officers seize during the arrest—like the methamphetamine described above—probably won’t be admissible in the prosecution’s case against the suspect.

Arrest Warrants and State Law

The rules discussed above come from interpretation of the U.S. Constitution. But states are free to make their own rules about issues like arrest warrants; even if the Constitution doesn’t require an arrest warrant, a state statute might.

“In-home” exception aside, all states allow an officer to make an arrest for a felony without a warrant, even if the officer didn’t witness the crime. But many states—California for one—don’t permit an officer to carry out a warrantless arrest for a misdemeanor if the crime wasn’t committed in the officer’s presence. This requirement often means that the officer need only have “reasonable grounds” to believe that the suspect committed a misdemeanor in his or her presence.

Questions for Your Attorney

  • When are arrest warrants required in my state?
  • If the manner of the arrest or the arrest warrant itself was faulty, do I have any recourse?
  • Is there any way that illegally seized evidence could be admissible in my case?

Updated November 6, 2015

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