Unexecuted Warrants and the Dog that Didn't Bark

By Sherry Colb

My FindLaw column this week discusses the case of a man who sued the District of Columbia for issuing a warrant for his arrest without probable cause. The man was never actually arrested, so the column takes up the question -- currently before the D.C. Circuit Court of Appeals -- whether the issuance of an invalid arrest warrant either inflicts or threatens injury sufficient to allow a litigant into federal court. I argue that it does and that the Fourth Amendment often concerns itself with government conduct whose injurious nature is far more abstract than the sorts of injuries that the law generally addresses.

In this post, I want to connect the essence of the Fourth Amendment -- and its guarantee of the right to "be secure against unreasonable searches and seizures" -- with the Arthur Conan Doyle mystery in which Sherlock Holmes figures out that a stranger could not have been the intruder because the dog did not bark (and the dog would have barked if a stranger entered the premises).  Holmes is able to focus on the absence of something (a bark) to solve a murder mystery, when everyone else is focused only on who or what was present on the premises (including the wrongfully accused stranger).

It is human nature to attend to what is present and to miss, often to our own detriment, what is absent, even when an absence is far more informative than any presence.

What does this have to do with the Fourth Amendment case of an arrest warrant that is never executed? Our tendency, in assessing whether a constitutional violation has taken place, is to look at what the police did to a particular individual. In the case of an unexecuted warrant, the police successfully sought a warrant to arrest a suspect against whom they lacked any probable cause. They never arrested him, however, and they therefore did not subject him to any seizure, reasonable or otherwise. What the police did therefore seems to fall short of anything properly actionable.

What is absent, however, when a warrant has issued for your unlawful arrest? It is "security" from unreasonable seizure. The Fourth Amendment gives the people the right to be secure against unreasonable searches and seizures. Once an illegal warrant has issued, there is no more security (until the point at which the warrant is withdrawn), just as there is no security -- as the Supreme Court has recognized -- when there is no enforcement mechanism available for ensuring that police comply with the dictates of the Fourth Amendment.

It is easy to miss the seemingly superfluous words in the Fourth Amendment text, "to be secure," but in their absence, the text could have protected "the right of the people against unreasonable searches and seizures." Security is a right that goes beyond not being victimized by a particular search or seizure. The plaintiff in the case I discuss was insecure, not unlike the person in a house at which the door has been removed. Though no one may yet have broken in, and though the occupant may not even know that the door is gone, the security that was, is no more. One expects not only to be free from unlawful governmental intrusions but also to be secure against them, to be confident that they are not about to take place.

If the government violates the law and thereby paves the way for more concretely violating an individual's rights, his security has been taken away. Even more so if, as the lower court held, he lacks any remedy for that violation. Though it is more of an absence than a presence, the lack of security is significant. It is arguably what the Fourth Amendment is all about.