INCARCERATION WITHOUT A WARRANT

Katherine Oshirak

Research Paper Gillis Block 1

February 22, 2019

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Incarceration is the imprisonment of a person who has been suspected of breaking the

laws of the United States government, or of a state’s government. A warrant is an official

document from the court that gives law enforcement officers permission to carry out a given

lawful task, such as searching for evidence, or making an arrest. Though the term incarceration

should never be confused with arrest, both share an underlying principle: bringing a suspected

criminal to justice through direct confinement in prison. There are times when officers apprehend

suspects and incarcerate them, without first getting a warrant from a magistrate or judge. Except

in extenuating circumstances, officers of the law are not authorized to seize property or detain a

suspect without the consent of a judge by means of a warrant.

To further evaluate the meaning of incarcerating a suspect, one must begin with the

Fourth Amendment to the United States Constitution, which protects citizens from unlawful

search and seizure. In this amendment, “unlawful” indicates an act executed without a warrant. “

...And no Warrants (sic) 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.”1 The

law states it is illegal to seize property or detain a person without the permission of a warrant. It

is a right for American citizens to have concrete evidence supporting any claim against them, or

any claim in their favor. Furthermore, if the government suspects a person of a criminal act, then

it’s official representatives should gather enough supporting evidence to swear out a warrant of

arrest from a judge, and then lawfully arrest and detain the person in a jail. Therefore, unless

1
Congressional Research Service, “Fourth Amendment.” ​U.S. Constitution Annotated.
PDF file. Library of Congress: Government Printing Office, 2017.
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there is an immediate threat or danger present, there should be a warrant taken out prior to any

arrest or detention.

However, there are exceptions that permit an officer to arrest and detain a suspect without

the need for a warrant. The first is the concept of “consent once removed.” This refers to a

situation in which an officer asks for permission to search a person or area, and is given

voluntary consent. Regardless of how useful this method is, it can be misleading to the citizen

giving verbal permission. In a 2003 article in “The FBI Law Enforcement Bulletin”, Edward M.

Hendrie states “An officer who is working in an undercover capacity can use deception to obtain

valid consent to enter premises.”2 Hendrie contends that the government should not mislead

American citizens into giving approval for a formal investigation. Not only are these assumed

criminals potentially deceived by law enforcement, they are also misinformed on the entirety of

this doctrine. After consent is given once, law personale have the right to reuse that statement of

agreement to search the person in a future case. Having proven very effective, “consent once

removed” is simply a loophole around acquiring a search warrant. Incarceration is a serious act

that requires full attention and analysis of evidence, especially if the suspect is later proven to be

innocent.

In an emergency situation, officers will be faced with whether to quickly detain any

suspected criminal, without an arrest warrant, who presents a threat to society or to himself. An

emergency refers to any situation when officers have to act as aid and protect civil life in the

presence of an immediate danger. Though this may seem unlawful, the officers uses “probable

2
Hendrie, Edward M. "Consent once removed. (Legal Digest)." ​The FBI Law
Enforcement Bulletin​, February 2003, 24+. ​Student Resources in Context​ (accessed February 4,
2019).
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cause” to support their actions in the moment, and the arrest will be considered constitutional. In

other words, they have the power to detain a suspect because there is reasonable suspicion that a

crime has been committed. The issue then arises as to whether these actions reflect that of the

Fourth Amendment, and whether the suspect can be detained without the permission of a

warrant. John Decker, a professor of law, in his “Emergency Circumstances, Police Responses,

​ rites “when police officers act in response to an

and Fourth Amendment Restrictions”​ w

emergency, or in their community caretaking capacity, probable cause is not relevant and a

judicial warrant is not needed.”3 Decker confirms that incarceration of a person without a warrant

is acceptable in an emergency situation. He further elaborates that such responses are an

exception to the Fourth Amendment because the circumstances do not directly deal with search

and seizure.

Deputies of the law should not arbitrarily incarcerate a person warrantlessly, but in

situations where obtaining a warrant immediately is strenuous, such as emergencies, a warrant

may be gathered after the apprehension of a suspect. Law personale should still follow the

provisions contained in the United States Constitution, and any exceptions, such as “consent

once removed.” Probable cause gives officers latitude when responding to possible criminal

action. Regardless of the time of incarceration, officers will still be required to link the holding to

probable cause.

3
​Decker,
John F. “Emergency Circumstances, Police Responses, and Fourth Amendment
Restrictions.” Journal of Criminal Law and Criminology. Accessed February 18, 2019.
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Bibliography

Congressional Research Service, “Fourth Amendment.” ​U.S. Constitution Annotated. ​PDF file.

Library of Congress: Government Printing Office, 2017.

https://www.congress.gov/content/conan/pdf/GPO-CONAN-2017-10-5.pdf

Constitution, amend. IV.

Decker, John F. “Emergency Circumstances, Police Responses, and Fourth Amendment

Restrictions.” Journal of Criminal Law and Criminology. Accessed February 18, 2019.

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6997&conte

xt=jclc.

Hendrie, Edward M. "Consent once removed. (Legal Digest)." ​The FBI Law Enforcement

Bulletin,​ February 2003, 24+. ​Student Resources in Context​ (accessed February 4, 2019).

http://link.galegroup.com/apps/doc/A98253659/GPS?u=noke74748&sid=GPS&xid=b49

d9b42​.

Tyler, Glen A., Judge, 2nd Circuit of Virginia. Interview by author, 22 January, 2019, Naples,

Florida. Email correspondence.