A question by my pal, Fritz, was raised by this story out of Chicago :
Court records show that the Army veteran was set to start a new job with the state, with solid pay and benefits, until Chicago police hauled him out of his house in his boxer shorts.
No judge had signed a warrant for [Frank] Craig’s arrest. Instead, police themselves had issued an “investigative alert” ordering Craig’s arrest for a robbery that occurred four months earlier.
The alert was based on detective work later judged so shoddy that it led to taxpayers reimbursing the innocent man half a million dollars for a false arrest that caused him to lose his job and the family home to foreclosure.
How, he wondered, could it be that police simply failed to obtain an arrest warrant and did as they pleased?
Critics say the internal police alerts, absent a bona fide warrant, sidestep constitutional protections. Officers act like judges, critics argue, in a process so open to abuse that the police-issued alerts are rarely allowed into the FBI’s fugitive database used by police across the country.
An Illinois appellate judge who was once a police officer recently called for alerts to be banned.
“It’s so easy for (police) to get a warrant. They should just do it right,” said that judge, Marcus Salone.
They should, but they won’t. They won’t in Chicago. They won’t in New York. They won’t where you live. The reason is quite simple: they won’t because there is no incentive to do otherwise. No matter how nice the authority conferred by an arrest warrant, there is no remedy for failure to arrest without one.
Obviously, an arrest for a crime that occurs in front of the cops has an exigency component that explains why they don’t stop, call a judge and await a warrant as the suspect gets away. Similarly, following a suspect in hot pursuit presents another situation where a warrant might get in the way.
But in the case of Frank Craig, arrested months after the alleged crime occurred, there is no impediment whatsoever to obtaining an arrest warrant. There is also no penalty for not obtaining one. An arrest without a warrant is still an arrest. Complain as one might, it doesn’t mean that the person is unarrested, or falsely arrested. The arrest isn’t nullified and the defendant goes free. The defendant doesn’t get a walk. The penalty for police ignoring the opportunity to obtain a warrant of arrest is a big, fat, nothing.
If the police arrest a person in his home without a warrant, any evidence they find may be suppressed, and the statements may be suppressed, but if the cops aren’t looking for evidence or don’t care about a blurted confession, then that doesn’t matter. They got the body, and that’s what they came for.
The problem is an old one, a right without a remedy. The Fourth Amendment may require a warrant for unreasonable searches and seizures, but the only remedy is suppression. This isn’t going to help the defendant who is arrested without a warrant in the defense of his criminal case.
The courts say the Constitution doesn’t necessarily require a warrant to arrest someone. That’s particularly true of cases of hot pursuit when police witness a crime. But the leeway gets murkier the more time elapses between the crime and the arrest, especially when police want to arrest the suspect in his or her home.
Murkier? Well, yes and no. Is it wrong? Is it unjustifiable? Is Judge Salone right that it’s just so easy to get a warrant these days that it’s inexcusable for police to arrest without one? Of course, but until the law provides a remedy for a warrantless arrest, it’s all talk. Cheap talk at that.
What people fail to appreciate is that we have a plethora of rights and responsibilities that the Constitution and the law impose on government. We just have no penalty for ignoring them. And so they are ignored. That’s how incentives work, with the police taking the route that is easiest for them when there is no down side to doing so.
But then, if there was a remedy, what would it be? Should murderers walk free because they were arrested without a warrant? Should anyone arrested without a warrant get payment from the government for the violation of their rights? What is the prejudice? Where is the harm? How do we distinguish between the person who deserves to be busted no matter what and the person for whom a warrant should have been first obtained?
These are hard questions, and would give any judge a headache. It’s so much easier to just say “meh” and let the police arrest at will and deal with the consequences later. After all, Frank Craig’s bad arrest netted him a half million dollars. Isn’t that good enough?
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“”It’s so easy for (police) to get a warrant. They should just do it right,” said that judge, Marcus Salone.”
It should not be so easy to obtain a warrant. It should NOT be a rubber stamp, which makes it worthless as the paper it is pressed on. It should require scrutiny and diligent investigations so it can be properly issued.
You are absolutely right, but I think he was referring to the mechanics, not the rubber stamp.
I’ve always believe the suppression remedy is terrible. It punishes the wrong people- the public. The justice system is supposed to be about punishing the guilty and not the innocent. And the policy about letting 10 guilty people go free so that one innocent isn’t jailed is still good.
So let’s say a cop violates search and seizures rules in a case. If that is suppressed, sure it makes the DA’s job harder, and maybe the guy gets off. But what’s it to the cop? Their innate sense of getting the bad guy? That’s a poor motivator.
The proper punishment is punishing the action actor- the cop who violated the rule. Qualified immunity needs to disappear. At a minimum, they should be fired. But they should also be prosecuted.
Yes, I know that’s not likely, but that’s the proper motivation and punishment. Evidence should not be suppressed. That hurts the public’s trust in the justice system, and pushes them towards removing more protections because nobody wants a guilty persone to get away.
But punishing the appropriate actor, bad cops are removed, but bad people are still taken off the street.
I know, just a fantasy.
I think just the opposite as a former cop.
The mechanics of getting a warrant are rather difficult, but the warrants themselves are way too often rubber-stamped by the judge. Even if the warrant isn’t initially issued the *judge* will often suggest what the police need to do to get the warrant, and it might just “magically” happen.
Police often don’t get warrants because they are too lazy (or busy) to draft a good affidavit, contact a judge, have the warrant issued, then execute it.
The process of executing a warrant is also more difficult than a warrantless search because there are inventory requirements, etc. Cops would rather make a search, make their reports and go home. A long, complicated search is more difficult than a quick unwarranted search. Judges way too often rubber-stamp a warrant, even sloppy requests, so that the warrant might not issue is only a secondary consideration in the minds of most cops.
One last thing, if a cop gets a warrant and finds nothing it is rather embarrassing to most cops. A warrantless search that yields nothing is often forgotten.
“One last thing, if a cop gets a warrant and finds nothing it is rather embarrassing to most cops.”
And therein lies a problem, ego and reputation trumping the law.
“The penalty for police ignoring the opportunity to obtain a warrant of arrest is a big, fat, nothing.”
Don’t worry. According to Scalia’s majority opinion in Hudson v. Michigan, the “increasing professionalism” of police institutions will motivate police administrators to use internal disciplinary measures to punish police for violating constitutional rights. It’s not as if police unions and sympathetic judges will undermine the few police chiefs that actually try to keep their officers honest. Who needs an Exclusionary Rule when you’ve got your local PBA?
Your kidding right?
That was sarcasm.
…an arrest for a crime that occurs in front of the cops has an exigency component that explains why they don’t stop, call a judge, and await a warrant…
In this day and age, with our modern technology, this statement is completely false. Back on Nov. 15th, I was involved in a minor traffic accident. It was while the cops were writing the man who hit me a ticket that I noticed that the Arizona Department of Public Safety (highway patrol) now has printers in their cop cars hooked up to their mobile data terminals (those laptops you see in the front of the cop cars). You have computers, you have radios, you have cell phones, and now you have printers. A cop can call his supervisor, who calls a judge, who gets a warrant. Done and proper, even in a case of “hot pursuit”.
As for limiting the abuse, we must make it a felony to arrest a person or search his property without obtaining a proper warrant. One of our biggest problems in this regard is the little word “unreasonable” in the Fourth Amendment. We need to edit that out. The issue of the judges rubber stamping a cop’s request needs to be properly addressed as well. This is going to take revamping the judicial system to pry it away from the control and influence of the politicians.
Huh! You only THINK it was sarcasm (this IS). The progressive (not invoking it here) city of Milwaukee is Chiefed (a new verb) by the most watchful protector of the public and an example to all other Chiefers. Sheriff Taylor WAS the previous standard in holding his officer accountable (the single bullet theory) but 3,000 bullets is the new “1”. According to god Holder, it’s all about citizen safety and you can’t be safer than in a cage (think FEMA camp).