Appeals Court Says St. Louis County’s Warrantless Arrests Are Likely Unconstitutional… But Somehow Still Pretty Much OK
Law enforcement needs probable cause to effect arrests and engage in searches. In most cases, a warrant is also required. It's a bit of paperwork that allows the government to bypass Fourth Amendment protections to serve the greater good, i.e., the invasion of privacy (a search) or the removal of personal freedom (an arrest).
For far too many cops, obtaining a warrant is a hassle they'd rather not deal with, even if it's rarely an actual hassle. So, they find ways to route around this rights-related roadblock. Drug dogs are called to scenes so an animal can tell cops it's ok to engage in a search. Pretextual stops use real or perceived traffic infractions as fishing licenses for bigger criminal charges. Exigent circumstances or officer safety concerns are other Constitution-evading outlets for cops who simply can't fathom having to pass some boilerplate past a judge to stay on the right side of the Constitution.
Probable cause is the baseline standard. Warrants are a requirement. The Eight Circuit Appeals Court, recognizing the baseline standard, has released a confusing and confounding decision [PDF] that says warrantless arrests are both constitutional and unconstitutional. It all depends on things the court can't clearly define, but affirms it definitely knows a Fourth Amendment violation when it sees one. (h/t Short Circuit)
The issue at the center of the case is the St. Louis County PD's wanteds" system. Via this system, officers can issue electronic notices notifying other officers of criminal suspects to be arrested. These notices are called wanteds."
This is, importantly, not the same thing as securing a warrant for arrest by presenting probable cause to a magistrate. Instead, officers are utilizing their own discretion to issue arrest notices while claiming it's the same thing as probable cause. The process is simple, subjected to zero oversight, and contains massive potential for abuse.
To issue a Wanted, an SLCPD officer, without any judicial oversight, concludes that probable cause exists to believe that the subject has committed a crime." Armed with this independent conclusion, the officer notifies a computer clerk (known as a CARE operator"), who enters the Wanted in the Regional Justice Information System (REJIS") database. To have the Wanted entered into the system, the SLCPD officer need only identify the target's name, physical descriptors, personal data, address, charges being investigated, and the issuing officer's name and contact information. If all is in order, the Wanted is entered into the REJIS database. The CARE operator is wholly without information to assess the existence of probable cause to issue the Wanted.
Officers can, of course, arrest people without securing a warrant. But that usually only happens when an officer is witnessing a crime being committed, like when a search turns up contraband or someone makes the crucial mistake of engaging in criminal acts while being observed by a cop.
The wanteds" system used by St. Louis PD officers isn't even close to the same thing, as the Eighth Circuit notes. The defendants argued it was pretty much the same thing. According to the cops, the determinations expressed by officers when feeding names into the database are the equivalent of probable cause and any resulting warrantless arrest is subject to the collective knowledge" doctrine, which allows cops who didn't witness criminal acts to arrest someone for criminal activity witnessed by others.
The court says it's a false equivalent. One officer's subjective claims do not add up to probable cause for an arrest.
The evidence here belies any claim that the Officers were acting as part of a team involved in an investigation. Rather, the Wanteds rested on a single officer's probable cause determination and authorized any officer to arrest the suspect. The evidence establishes that seizures pursuant to Wanteds occur following routine traffic stops conducted by officers who, by chance, search the Wanteds database (as demonstrated by Furlow) and when an officer happens to check for Wanteds in the area (as seems to be the case in Torres' seizure). Because the Wanteds System routinely imputes a single officer's finding of probable cause to officers potentially anywhere in the country-without any showing of a joint investigation-this Wanteds System cannot be saved under the collective knowledge doctrine.
The court also refuses to humor the SLCPD's other attempts to salvage the entirety of the Wanteds" program. Getting a warrant is simply not that difficult and this attempt to bypass the judicial system is what's unwarranted.
The SLCPD's expression of doubt that a neutral magistrate will issue an arrest warrant unless officers speak with the suspect prior to making the warrant application defies logic. The only requirements for issuance of an arrest warrant are: (1) probable cause to believe a crime has been or is being committed, and (2) probable cause to believe the person to be arrested is the person who committed the crime. It necessarily follows that if a neutral magistrate declines to issue a warrant, then the officer's determination of probable cause is unsupported.
How do we know the SLCPD's claims are terrible? Because thousands of law enforcement agencies do the thing the SLCPD claims is impossible to do in order to justify its officer-generated Fourth Amendment bypass.
The Officers also suggest that seeking a warrant in every case in which a Wanted is issued would be inconvenient and unduly burdensome. The Officers offer no explanation as to why the vast majority of police agencies in the country function without resort to a wanteds system" like the SLCPD's system. The claim that seeking a warrant is unduly burdensome is overstated.
Even if the SLCPD was correct that the judicial system's involvement was burdensome," it still wouldn't matter. If the SLCPD wants the ability to deprive people of their freedom, it has to do the paperwork legwork, no matter how much of an alleged hassle it is.
The Supreme Court has not enumerated an exception to the Fourth Amendment's warrant requirement based on the inconvenience of obtaining a warrant before proceeding with an arrest.
This would all lead someone to assume the Eighth Circuit has declared the SLCPD's Wanteds" system unconstitutional. But that assumption would be wrong. Despite all of its constitutionally-based criticism, the Appeals Court still finds a way to partially bless a system so apparently essential to public safety, nearly no other law enforcement agency uses it. Exceptions apply, says the Eighth Circuit, and so the plaintiffs lose their challenge.
The Wanteds System is broad enough to encompasses situations that do not violate the Constitution, including those involving an arrest immediately after an officer has entered a wanted, circumstances involving evanescent evidence, sand incidents involving a fleeing felon. Because of the existence of these constitutional applications, the plaintiffs' facial challenge to the Wanteds System fails.
So, nearly completely unconstitutional but not universally constitutional. Exceptions apply. And if those exceptions apply, it makes more sense for the SLCPD to ditch a system that encourages Fourth Amendment violations and utilize systems used elsewhere - ones that only allow officers to issue APBs, etc. when the call-out for an arrest is supported by these warrant exceptions.
Maybe that makes sense, but the conclusion seems at odds with the reasoning used to arrive at it. What's completely inexplicable is the concurring opinion by Judge Stras, which suggests cops should be free to use something that has its roots in the vigilante justice of the Old West, which tended to view all rights as expendable when it came to (often violently) apprehending alleged criminals.
Think of the iconic wanted posters of the old west. They contained just a few basic pieces of information: the name of the outlaw, his image, a reward for his capture, and the crime he committed. See, e.g., Barbara Fifer & Martin Kidston, Wanted!: Wanted Posters of the Old West (2003); Leanna S. Schooley & Tom Kellam, Wanted in America (2019). The posters for Jesse James and John Wilkes Booth followed this formula. See Photographs of John Wilkes Booth and Jesse James Wanted Posters, in Sophie Tanno, $5,000 for Jesse James Dead or Alive' and $100,000 for Lincoln's three killers: The fascinating wanted posters for America's biggest 19th century criminals, DailyMail (July 24, 2019, 9:25 AM), https://bit.ly/3SVNPng. And sometimes, like during the manhunt for Jesse James, the poster would contain three words no outlaw would want to see: DEAD OR ALIVE."
The question is whether these wanteds," as St. Louis County calls them, violate the Fourth Amendment. Based on the long common-law tradition of warrantless felony arrests supported by probable cause, I would conclude that the answer is no.
Um... maybe we shouldn't encourage cops to act like bounty hunters and apprehend people based on nothing more than a couple of sentences typed into a database. Just because something used to work pretty well doesn't mean it should be allowed to continue. Lots of posters were put up to identify and apprehend escaped slaves, but no one's suggesting that tradition should be carried on just because it can be done electronically. I mean, I would hope not.
In the end, the Wanteds" system survives. The Appeals Court has made it clear that only certain uses are acceptable. And while that helps, it's unlikely to change anything about the SLCPD's day-to-day use of the system. This challenge failed. And it will take another challenge - one that's more successful - to actually start deterring abuse of a system that makes a mockery of the Fourth Amendment.