When a police officer observes someone engaged in what he believes to be a crime, he’s generally authorized to make an arrest. Whether his probable cause determination was correct can be tested later, but in the moment, he can act without a prior probable cause determination and an arrest warrant issued by a neutral magistrate.

But what about St. Louis’ “Wanteds” system?

Using the so-called “wanteds” system, police officers who wish to interview a subject can issue a statewide wanted alert for that person’s arrest by any other officer. The notice is issued by officers without approval of a neutral magistrate.

A cop wants to interview someone, so he enters the person’s name into the system. Should another cop, whether in St. Louis County or even parts of Illinois that use the system, input a name and a “wanted” comes up, he will arrest the person in response.

“The idea behind these orders, and this is undisputed, is that whenever a St. Louis County police officer wants to interview a suspect, he or she can issue an order that allows any other officer, not only in St. Louis County, not only in St. Louis City, but across the border in Illinois in several counties and elsewhere in Missouri, to take that person into custody so that they can be questioned by the issuing officer and I think that’s actually where the wanted system runs afoul,” [plaintiff’s attorney, Eric Alan Stone of Paul Weiss] said.

Was there probable cause to arrest? Who knows, but even more important, who decides? Under the Fourth Amendment, a police officer would have to present the basis for arrest, the probable cause, to a judge and obtain an arrest warrant before taking someone into custody who committed no crime in his presence. Under this system, all that’s needed is a name with a “wanted” alert. The basis for the alert is unknown, and indeed, may not be for anything more than the desire of a cop to interview someone. But the receiving cop who performs the arrest will act upon the “wanted” nonetheless, oblivious to the basis for the arrest.

What if there is no probable cause whatsoever for the person being arrested under the “Wanted” and he resists because he’s a good guy who has no reason to expect to be arrested, fails to comply quickly enough or just generally pisses the arresting officer off, and the arresting officer decides to use force? It can happen and the consequences can be disastrous.

“This is the only place we know of in the country where a police officer issues an order by which some other officer can take someone into custody so the first police officer can come question them,” Stone said, “as opposed to so they can then be arraigned, charged, and criminally prosecuted.”

While it may be true that this “Wanteds” system is more formalized than others, the broader problem has long existed. Remember those FBI Wanted posters in the post office? Cops issue BOLOs regularly for other cops to act upon. Under the “fellow officer rule,” the personal knowledge of the officer issuing the wanted is imputed to the arresting officer, who can rely upon it when making the collar.

The panel asked Stone about the difference between a wanted notice and the FBI issuing a person-of-interest alert, as it had in the New York subway shooting that occurred on Tuesday.

“There’s no dispute that where there is a person on the run, who was accused of shooting six people in a subway station, that that person can be taken into custody,” he said. “But the record evidence in this case is 15,000 Wanteds were issued for every claim in the book, the vast majority of which (did not affect) public safety.”

The utility of the rule is fairly clear when circumstances remain exigent, such as a suspect who has fled the scene. But when there is no longer any exigency, and there is ample time to obtain an arrest warrant, the failure to do so should override whatever basis for probable cause the officer claims. After all, the Fourth Amendment doesn’t merely require that probable cause to seize exists, but that it’s determined by a neutral magistrate and not left to the cop’s whim. The courts, however, do not necessarily see it that way.

The difference with the St. Louis “Wanteds” system is that it’s not limited to people suspected of committing a crime, but anybody a cop wants to talk to, even if there is no allegation of wrongdoing against them. Still, they can be arrested based on the “Wanted,” which not only means their constitutional rights are violated by a wrongful seizure, but that they suffer the consequences of an arrest.

“Being arrested is not only an inconvenience, it’s a life changing event,” Stone told the court. “There is a reason we require an arrest warrant before we take somebody into custody.”

Once put into the “Wanted” systems, the alerts can remain there for years without notice to the person wanted or any mechanism to challenge the “wanted” and avoid the arrest. The case is before the Eighth Circuit.