The Inadequacy of an Arrest Warrant

by Sherry F. Colb

My column for this week is about a Second Circuit case, decided at the end of January, United States v. Allen.  In Allen, the court held that when police arrest a suspect who is standing inside the threshold of his home, the arrest counts as a "home arrest," even though the police are standing outside the suspect's home.  This is a question that has not yet come up before the Supreme Court, but I argue (as does the majority opinion) that an arrest of this sort invades the privacy of the home in the ways that home arrests generally do and that, accordingly, police should have to obtain an arrest warrant (as they generally do, prior to performing home arrests) before conduct a "threshold" arrest. As I concluded in my column, the Second Circuit made the right decision in this case by honoring the invaded vulnerability that occurs when police tell a person who is inside his home (and as is often the case, is not wearing shoes and has a child in the home) that he is under arrest and must leave his place of safety and privacy.

In this post, I want to suggest that even though the Second Circuit got it right, there is nonetheless something unsatisfying about the solution: if police decide to perform a home arrest (including an across-the-threshold home arrest) rather than arrest a suspect in public, they must first obtain an arrest warrant. Consider the fact that all an arrest warrant does is attest to the fact that police have probable cause to arrest the suspect. Without probable cause to arrest, police would be wrongfully denying the suspect his liberty by arresting him. In the case of a home arrest, however, police are doing more than depriving a suspect of liberty; they are also invading the private space of his home, his refuge from the outside world. It therefore seems that even though an arrest warrant is better than nothing, it fails to address the particular thing that makes a home arrest more troubling than a street arrest -- the invasion of the home.

One way in which Fourth Amendment doctrine could address the home invasion would be by requiring that police not only obtain an arrest warrant (attesting to probable cause to arrest) but that they also obtain a search warrant (attesting to probable cause to believe that the object of their search -- the suspect to be arrested -- is in fact located inside his home at the time they intend to go and arrest him).  Such a warrant would help avoid the scenario in which the police show up at the house, find that no one answers the door, and then break in and look around until they satisfy themselves that the suspect is not in fact home at the time.

Yet even a search warrant might seem less than adequate. It ensures perhaps that the suspect is indeed at home, but it does not help justify the choice to arrest a suspect at home rather than on the street. To the extent that the choice to do the former rather than the latter constitutes an extra deprivation (beyond the liberty loss inherent in an arrest), police should perhaps have to make some showing of necessity or good reason to justify the choice to arrest a person at home. Absent such a showing, it might indeed seem unreasonable to choose to arrest a person in the home, where the person has more to lose (privacy in addition to liberty), even if there is a warrant that attests to the fact that (1) police have reason to arrest him (somewhere) and (2) he is likely to be at home at the particular times selected.

In a Columbia Law Review article I published some years ago, The Qualitative Dimension of Fourth Amendment Reasonableness, I made a version of this argument, suggesting that the Court's way of trying to protect against substantively more invasive police activity (such as a home arrest) through the instrument of the purely procedure arrest warrant ultimately fails to fulfill its objective. I continue to believe that we could stand to have a more substance-sensitive Fourth Amendment jurisprudence. Nonetheless, given that we generally do not, I still applaud the Second Circuit for expanding the scope of the arrest warrant requirement to extend to what I agree are properly called "home arrest" situations, where police show up at the threshold of a person's home and place the person under arrest while he stands, helpless, inside of his home.