Do Arrest Warrants Have a Diligence Requirement?
The Fourth Circuit recently handed down a ruling, United States v. Ordonez-Zometa, that raised a really interesting question: Does the Fourth Amendment require officers to exercise diligence in executing an arrest warrant? That is, if there’s an arrest warrant out for a person, are officers required to make the arrest when they can, or soon after that? And if they can delay making the arrest, how long a delay is allowed?
What makes this particularly interesting to me is that I went in thinking there was no such diligence requirement; the Fourth Circuit said there is such a requirement; but when I looked back into the history of the caselaw, I tended to think the Fourth Circuit’s diligence requirement may just be a vestige of long-overturned caselaw that no one realized is now obsolete.
Here are the details, for the law nerds interested in the puzzle to be solved here.
In the new ruling, officers obtained an arrest warrant for Ordonez-Zomet in a homicide investigation. The next day, they executed the arrest while he was in a car, leading to a seizure and search of the car and evidence. As I understand the claim, Ordonez-Zometa is arguing that it was a Fourth Amendment violation for the officers to wait until Ordonez-Zometa was in a car to carry out the arrest warrant. That was problematic, the notion seems to be, because it gave officers the power to seize and later search the car under the search incident to arrest exception.
In an opinion by Judge King, the Fourth Circuit started off by saying yes, there is a diligence requirement, but that it was not violated here:
The record demonstrates that the district court did not err in denying his suppression motion on the basis of undue delay. To be sure, police officers should act with diligence in the execution of an arrest warrant. See United States v. Weaver, 384 F.2d 879, 880 (4th Cir. 1967). And, here, they did just that: The warrant for Ordonez-Zometa’s arrest was issued at 7:12 p.m. on March 12, 2019, and it was executed less than 24 hours later — at 6:50 p.m. on March 13, 2019. See J.A. 110, 1920. That should end the inquiry. Cf. Weaver, 384 F.2d at 880-81 (upholding execution of an arrest warrant after a delay of more than two weeks).
Further, the court adds, you can’t really evaluate the reasons for undue delay because modern Fourth Amendment law doesn’t usually allow an inquiry into an officer’s subjective thoughts:
In this appeal, Ordonez-Zometa urges our Court to look past the objective facts to examine and second-guess the officers’ decision-making — specifically, why the officers chose to execute the arrest warrant when and where they did so. But this proposition runs headlong into the well-settled principle of Fourth Amendment law of objective reasonableness. This Court does not, and should not, inquire into the strategic motivations of arresting officers. See Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011); see also Brigham City, 547 U.S. at 404.
To be sure, we have cautioned against law enforcement intentionally withholding the execution of an arrest warrant in hopes of gaining access to a location they could not otherwise search. See Weaver, 384 F.2d at 880. But that principle does not license us to disregard the rule that a Fourth Amendment analysis does not turn on the subjective motives of the officers involved. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005) (recognizing discretion police possess in deciding when and how to execute warrants). Indeed, the courts have “almost uniformly rejected invitations to probe subjective intent.” See al-Kidd, 563 U.S. at 737 (internal quotation marks omitted). And for good reason: “the Fourth Amendment regulates conduct rather than thoughts.” Id. at 736 (citing Bond v. United States, 529 U.S. 334, 338 n.2 (2000)).
I found this discussion fascinating because I’d generally been of the understanding that there is no diligence requirement for arrest warrants. As I have thought of it, arrest warrants do two things. First, they establish probable cause that justifies an arrest, negating the need for a post-arrest hearing into probable cause that would otherwise be needed promptly, under Gerstein v. Pugh. And second, they permit entry into a person’s home to arrest them when there is reason to believe the person is home, under Payton v. New York. But arrests generally don’t require warrants. So I’ve been of the impression that there’s no constitutional duty to carry out an arrest when an officer has the opportunity to do so. Officers can do that, but they don’t need to.
I was curious: Where did this apparent requirement come from?
The Fourth Circuit cites only
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