It is contrary to the Fourth Amendment for a law enforcement officer (“LEO”) to arrest a suspect based upon a “probable cause pickup request” (“PCPR”). The PCPR is referred to on the street as a “pocket warrant.” Anyone arrested based on a “pocket warrant” needs to seek immediate legal representation to investigate and determine if the arrest was constitutional.
Any analysis of an arrest begins with a review of the Fourth Amendment ratified in 1789, the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Id. “For the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351-2, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Emphasis added).
Regarding “routine felony arrests (without a warrant)”, the United States Supreme Court in Payton v. New York, explained:
It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment “reached farther than the concrete form” of the specific cases that gave it birth, and “apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.” (internal citation omitted)
Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). (emphasis added) “Seizures” in this context could very well mean an arrest (as the ultimate seizure of a person). The Payton case dealt with a routine, non-emergency, warrantless arrest of a suspect based upon probable cause at a person’s home. Id. Warrantless arrests are analyzed under a reasonableness standard and are typically assumed to be “unreasonable” unless and until the government can demonstrate probable cause and a valid exception to the warrant requirement.
But generally, warrantless arrests on the street are unconstitutional unless supported by probable cause. See Edwards v. Baer, 863 F.2d 606 (8th Cir. 1989); Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir. 1986); and United States v. Clark, 754 F.2d 789, 791 (8th Cir. 1985). There are many instances were a warrantless arrest is simply unreasonable.
The “pocket warrant” or PCPR is lazy law enforcement work at its finest. The idea is that the law enforcement believes that it has developed facts that establish “probable cause” to authorize and constitutionally justify an arrest. And instead of drafting a warrant, swearing to the information, and going before a judge, the LEO simply enters the information into a computer database and calls it a shift. Keep in mind, any LEO armed with the sworn affidavit can appear in front of the judge to get the arrest warrant.[i] There is no real reason other than pure laziness to not follow the constitutional procedure.
The creation of the Fourth Amendment was no accident. It was a necessary government concession at the time of our country’s founding. And for good reason. Scholars presume that ratification of the Bill of Rights was in direct result to British troops unfair treatment of the American colonists. Although the historical references are scant, it appears that these troops would simply show up at the home of a colonist, enter the residence without permission, and search for contraband without any reason or justification for the search; thus, the phrase “probable cause” was born.
In its most basic sense, “probable cause” (or “PC” as it is called) simply means that there is some constitutionally objective justification to believe that a crime is, has, or is about to occur. After America won its war for her independence, the new citizens struggled and grappled with these issues while adopting our new government.
Fast forward approximately 230 years from the ratification of the Fourth Amendment and thousands upon thousands of court cases interpreting the amendment later, and we find ourselves in a nearly identical posture as those colonists did back in Eighteenth Century. The constitutional struggle to balance personal freedoms and liberties, and the government’s right to maintain law and order.
Under a strict Fourth Amendment analysis, a law enforcement officer may not make an arrest or search a house without a warrant. The warrant must be issued by a “neutral and detached” magistrate. It must be based upon “probable cause.” The “probable cause” facts must be sworn to under oath and the person or place must be described with particularity.
As indicated above, the Payton case was dealing with a routine, non-emergency, warrantless arrest at a person’s home. The Court concluded that the government was not allowed to make a warrantless arrest at a person’s home without some “exigent circumstances.” “Exigent circumstances” is a term of art that typically refers to some type of emergency. For instance, “exigent circumstances” could be that the accused is going to destroy evidence, or that the officers are “in fresh pursuit” and the suspect ducks into a residence to hide. Although not exhaustive, those examples might be considered “exigent circumstances” which would relieve law enforcement from the requirement of obtaining an arrest warrant before entering the house to arrest the suspect (but the constitution will still require (regardless of the exigencies or not) that the LEO have already established “probable cause” for the arrest). “Probable cause” cannot be later developed after the arrest, but must be fully present at the time of the arrest for the arrest to be constitutional.
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971),[ii] the Court explained that “probable cause” determination in the warrant context must be made by “neutral and detached” Article 3 judges and magistrates based upon sworn allegations. The Court absolutely rejected the idea that prosecutors and law enforcement officers could constitutionally issue their own warrants and forbid that non-judical practice. Coolidge, supra.
The long and short of it is this: unless there is some situation that instantly creates “probable cause” which the officer personally witnesses that crime occur, and attempts to make a contemporaneous arrest, then an arrest warrant authorized under the Fourth Amendment is most likely required. As Coolidge explained, LEO’s and prosecutors are not “neutral and detached magistrates” and are incapable of issuing warrants.
Additionally, the Court has been reluctant to ease the warrant restriction without some fantastic reason (and lack of resources or expediency are not acceptable). Take for instance the case of Birchfield v. North Dakota, 579 U.S. —, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield dealt with, inter alia, blood draw evidence[iii] preservation to be tested and used in possible driving under the influence prosecutions.
At the 20 April 2016 oral arguments,[iv] the justices were thoroughly unimpressed with the arguments from the different states regarding the excuses offered as to why the states could not get search warrants to draw blood. In fact, the justices flat rejected the idea of not getting a warrant under those circumstances.
How is a non-judicially supervised PCPR or “pocket warrant” (which is not a warrant) constitutionally valid? If a blood draw warrant can be obtained anywhere between 20 minutes and an hour, why cannot law enforcement get a real, bona fide arrest warrant based upon supposed facts that establish “probable cause?” And in Birchfield, nearly all the justices agreed on the blood draw warrant requirement (while some differed regarding a field breath test for alcohol). Id.
The answer is two-fold. First, getting a warrant requires a little amount of work and is not tedious or overburdensome. In fact, the justices marveled that in today’s day-and-age, warrants could be secured in seconds electronically in some jurisdictions (with rotating judges on duty 24 hours a day). Second, with the warrant process, there is always the possibility that the judge/magistrate might not issue the warrant, but if the arrest warrant is issued – then it is presumed that there is valid probable cause to arrest the suspect. The arrest will be presumed “reasonable.” A PCPR or “pocket warrant” has none of those protections, is illegal and unconstitutional under a Coolidge, supra, analysis.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
If you or a loved one has been arrested on a PCPR or “pocket warrant,” please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter. As a three-time, board-certified criminal trial defense attorney, I have the experience to represent you accurately and effectively. Over my 20-years, I have handled countless criminal trials and appeals so that I thoroughly understand the issues involved.
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[i] Many states have some version of the “fellow officer” rule. Florida recognizes the legal principal called the “Fellow-Officer” rule. See §901.18, Fla. Stat.; Voorhees v. State, 699 So.2d 602 (Fla. 1990). Under the “Fellow-Officer” doctrine, a probable cause determination (and only a probable cause determination) can transfer from one officer to another to make an arrest within a reasonable amount of time. This rule only applies for immediate “probable cause” determinations. Otherwise, a warrant is required.
[ii] See also Collins v. Virginia, — U.S. —, 138 S.Ct. (2018).
[iii] “Blood draw evidence” refers to the procedure where law enforcement takes a potentially intoxicated driver from the scene of a suspected driving under the influence offense and forces the accused to submit to a blood draw to preserve any evidence of wrong doing.
[iv] https://www.oyez.org/cases/2015/14-1468 (The link to listen to the oral arguments at the United States Supreme Court from Birchfield v. North Dakota case.)