Jonathan S. Willett, Attorney at Law
1331 17th St., Suite 608 Denver, CO 80202  Tel 303-832-5648
Criminal Law March 26, 2015
Criminal Law

Criminal Remedies for Victims of Stalking

Most states recognize the crime of stalking as "a clear pattern of conduct in which the offender follows, harasses, or ...(more)


Rule 11 Requirement that Courts Warn Defendants of No Right to Withdraw Guilty Pleas

Pursuant to Federal Rule of Criminal Procedure (FRCP) 11, prosecutors may promise to move to dismiss other charges or recommend ...(more)


Whether a DUI Conviction Makes an Alien Eligible for Expedited Deportation

The Immigration and Nationality Act (INA) permits deportation of an alien convicted of an "aggravated felony," which can include "a ...(more)


Random Sobriety Checkpoints to Detect Drunk Drivers

The Fourth Amendment generally protects the right of people to be free from "unreasonable searches and seizures." In order for ...(more)


Criminal Law in the News

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New Law Would Block 'Affluenza' Criminal Defense Strategy

Criminal trial follows Black Friday fight

No prison time for convicted Ala. rapist, judge reaffirms

Appeal in Michael Skakel murder case could stretch into 2015

Warrantless Arrests for Minor Criminal Offenses Under the Fourth Amendment

The Fourth Amendment prohibition against unreasonable searches and seizures generally requires police officers to obtain a warrant based upon probable cause before performing an arrest. Intended to protect against unreasonable searches and arbitrary arrests, the warrant requirement has traditionally been strictly enforced to prevent violations of constitutional privacy interests.
However, the U.S. Supreme Court has held that an officer may arrest an individual without a warrant if there is probable cause to believe that the offender has committed even a very minor criminal offense in the officer's presence.
Valid Searches and Seizures Without Warrants
There are several established exceptions to the warrant requirement, including when police officers have probable cause to believe that the person to be arrested has committed a felony or misdemeanor in their presence. In fact, a great number of arrests have historically taken place without warrants.
In order to arrest a person or otherwise take them into "custody" without a warrant, a police officer must have the same level of probable cause that is required for the issuance of an arrest warrant. Further, an officer performing a warrantless arrest must be able to base probable cause on conditions that existed prior to the stop, rather than on conditions discovered thereafter.
The Probable Cause Standard Applies to All Arrests
In a 2001 case, the U.S. Supreme Court considered whether the custodial arrest of an individual committing a minor traffic offense without a warrant constituted an unreasonable seizure in violation of the Fourth Amendment. Ultimately, the Court held that warrantless misdemeanor arrests are not unreasonable under the Fourth Amendment if based upon probable cause.
Specifically, the defendant in Atwater v. Lago Vista was arrested without a warrant for violating a Texas law that required front-seat passengers and small children riding in the front of a car to wear a seatbelt. Upon observing that the defendant was driving with her two small children in the front seat, all without a seatbelt, the police officer in the case pulled the defendant over and arrested her. In upholding the arrest as valid under the Fourth Amendment, the Court reasoned that the arrest was reasonable because the officer had probable cause to believe that the defendant had violated the law.
No Breach of the Peace Limitation
The Court in Atwater also struck down the defendant's claim that "founding-era common-law rules" restricted a police officer's authority to make warrantless arrests for misdemeanors except in cases of "breach of the peace" (e.g., non-felony offenses that involve violence). Rather, the Court concluded that there was disagreement at common law over an officer's warrantless misdemeanor arrest power, and held that such arrests are not necessarily limited to instances of breach of the peace.
The Court supported its final conclusion, that warrantless misdemeanor arrests do not demand the kind of constitutional attention requested by the defendant, with the following factors:
  • Anyone arrested without formal process is entitled to a magistrate's review of probable cause within 48 hours
  • Many jurisdictions have imposed restrictive statutes limiting warrantless arrests for minor offenses
  • It is in the interest of police officers to limit such arrests, because of the costs to the police if the arrest is found to be unreasonable is simply "too great to incur without good reason"
  • Preference for individualized review of Fourth Amendment claims when a defendant makes a viable argument that an arrest was unusually harmful to privacy or physical interests

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