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"Pocket Warrants" and Unicorns, neither are real.

August 22, 2018

There is no such thing as a “pocket warrant.” Anyone arrested based solely on a “pocket warrant” needs to seek immediate legal representation to have a skilled attorney conduct serious constitutional scrutiny because that type of arrest was most likely illegal and/or unconstitutional and should be suppressed.

 

A “pocket warrant” is common street vernacular for a “probable cause” pickup request. For instance, in the City of Tampa, a “pocket warrant” refers to an electronic notation in the city’s computer database that police want to arrest a person and have reason to believe that that person has committed a felony offense. Unfortunately, the “pocket warrant” is not a warrant and does not carry the force of law contrary to popular belief.

 

Ratified in 1789, the Fourth Amendment states:

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

It is presumed that ratification of the Bill of Rights was in direct result to British troops unfair treatment of the American colonists. Although the historical references are scant, it appears that these troops would simply show up and go into colonial homes and search for illegal contraband without any reason or justification for the search; thus, the phrase “probable cause” was born meaning that there is some objective justification to believe that a crime is, has, or is about to occur. After America won its war for independence, the colonies struggled with adopting a new government and the Constitution was enacted, but it was imperfect regarding the citizen’s personal protections of their freedom and liberty. Many of the citizens wanted personal protections that were not contained within the Constitution and they demanded action. The “Bill of Rights” solved that problem and particularly, the Fourth Amendment, resolved the search and seizure and arrest issues. Jump forward approximately 230 years, thousands of court cases interpreting the amendment, and what is actually happening around any town in America regarding the interaction between law enforcement and private citizens, and you will still struggle in action.

 

Under a strict Fourth Amendment analysis, law enforcement officer may not make an arrest or search a house without a warrant. The warrant has to be issued by a “neutral and detached” magistrate. It must be based upon “probable cause.” The “probable cause” facts must be sworn to under oath and the person or place must be described with particularity.

 

The Supreme Court explained:

 

It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment “reached farther than the concrete form” of the specific cases that gave it birth, and “apply to all invasions on the part of the government and its employés of the sanctity of a man's home and the privacies of life.” (internal citation omitted)

 

Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Payton case was dealing with a routine, non-emergency, warrantless arrest at a person’s home. The Court concluded that the government was not allowed to make a warrantless arrest at a person’s home without some “exigent circumstances.” “Exigent circumstances” is a term of art that typically refers to some type of emergency. For instance, the accused is going to destroy evidence, or the officers are “in fresh pursuit” and the suspect ducks into a residence to hide. Although not exhaustive, those might be considered “exigent circumstances” that would relieve law enforcement from the requirement of obtaining an arrest warrant.

 

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court explained that “probable cause” determination in the warrant context must be made by “neutral and detached” Article 3 judges and magistrates based upon sworn allegations. See also Collins v. Virginia, --- U.S. ---, 138 S.Ct. (29 May 2018). It rejected prosecutors and law enforcement officers issuing their own warrants. Coolidge, supra.

 

The short of it is this: unless there is instant “probable cause” where the officer personally witnesses the criminal offense and makes a contemporaneous arrest, then a Fourth Amendment arrest warrant is most likely required. As Coolidge explained, law enforcement officer and prosecutors are not “neutral and detached magistrates” and are incapable of issuing warrants.

 

Additionally, the Court has been reluctant to ease the warrant restriction without some fantastic reason. Take for instance the case of Birchfield v. North Dakota, 579 U.S. ---, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield dealt with, amongst other things, blood draw evidence preservation to be tested and used in possible driving under the influence prosecutions. At the 20 April 2016 oral arguments, the justices were utterly unimpressed with the arguments from the different states regarding the excuses offered as to why the states could not get search warrants to draw blood. In fact, the justices flat rejected the idea of not getting a warrant under those circumstances. How is this any different? If a blood draw warrant can be obtained anywhere between 20 minutes and an hour, why cannot TPD get an arrest warrant based upon supposed facts that establish “probable cause?” And in Birchfield, nearly all the justices agreed on the blood draw warrant requirement (while some differed regarding a field breath test for alcohol). Id. The answer is two-fold. First, getting a warrant requires a little work and is not tedious. Second, with the warrant process, there is always the possibility that the judge/magistrate might not issue the warrant, but if the arrest warrant is issued – then it is presumed that there is valid probable cause to arrest the suspect.

 

A “pocket warrant” has none of those protections, is illegal and unconstitutional under a Coolidge, supra, analysis.

 

If you or a loved one has been arrested via a “pocket warrant” or have any Florida criminal matter that you want reviewed, then do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 for a review of the situation. This type of law enforcement nonsense is not going to stop until citizens push back. The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.

 

Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013, and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer

 

 

 

 

 

 

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