Issuing a Federal Warrant

Issuing a Federal Warrant

The constitutional cases above fix the floor beneath every arrest. An officer needs probable cause, and an officer who wants to cross the threshold of a suspect's home to make a routine arrest needs a judge's warrant first. Those holdings say little about mechanics: what document the judge reads, what the judge must find, and what the judge does once satisfied. In federal prosecutions Rule 4 of the Federal Rules of Criminal Procedure answers those questions, and it is the home of the issuance, form, execution, and return rules taken up in the sections that follow.¹ This section begins at the front of that sequence, with the decision to issue a warrant, which Rule 4(a) governs.

Rule 4(a) provides that if the complaint, or one or more affidavits filed with the complaint, establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute it.² The complaint is the written statement of charges that opens the case, and an affidavit is a sworn written statement of facts, usually from the investigating agent, filed to support it. The rule therefore sets up a documentary showing. The judge reads the papers and asks whether they establish the two things the rule names: that a crime occurred, and that this defendant committed it. The words probable cause carry the same meaning the constitutional cases give them, so Rule 4(a) neither raises nor lowers the Fourth Amendment measure. What it adds is the procedure, a written application put before a judge before the arrest, through which officers obtain the warrant the home-entry cases require.

The rule's verb deserves attention. Once the papers establish probable cause, the judge must issue the warrant, so on the text the judge's discretion is spent in deciding whether the showing suffices, and the rule leaves no further room to withhold the warrant once that threshold is met.³ The warrant goes to an officer authorized to execute it, and who qualifies, and how the warrant is carried out, are questions for the execution sections later in this chapter. A judge may also issue more than one warrant on the same complaint, so a single showing can support warrants placed in the hands of different officers.⁴

Placing this decision with a judge, in writing, and before the arrest serves purposes that can be read off the structure of the rule. The officers who built the case want the arrest, so the first review of whether the evidence suffices belongs to someone with no stake in the result. Once an arrest has turned up evidence, any later look at the case is colored by hindsight, because a court asked afterward whether the officers had enough tends to see what the arrest produced. Requiring the showing to appear in the complaint or its affidavits also fixes a record of what the judge actually relied on, so a later challenge can be measured against the papers themselves and the officers cannot improve that record after the fact.

The second affidavit fails for the same defect that sank the bare conclusions discussed earlier in this chapter: a judge can weigh facts but cannot weigh a conclusion. Exam stems often recite that a complaint was filed and an agent swore out an affidavit, and then ask whether the judge had to issue a warrant. Students lose this issue when they treat the filing itself as the trigger, because the duty arises only when the filed papers themselves establish probable cause on both the offense and the defendant's part in it. The working move is to read what the complaint and affidavits actually say and ask whether those facts reach both halves of the showing. The next section develops that showing, and the one after it turns to issuance by telephone or other reliable electronic means.

Probable Cause on the Complaint

Rule 4(a) makes the judge's duty turn on what the filed papers show, so the working question is what those papers must contain. The rule names two propositions, that an offense has been committed and that the defendant committed it, and it allows the showing to come from the complaint or from one or more affidavits filed with it.⁶ The judge therefore reads the complaint and affidavits together, and each half of the showing needs facts the judge can find there. The two halves are separate because an arrest seizes a particular person: a document proving that a crime occurred somewhere does nothing to justify seizing the person named in the warrant until it also ties that person to the crime. A search warrant asks different questions, namely whether the items sought are connected with criminal activity and whether they will be found in the place to be searched, and it does not require that any particular person be implicated.⁷ An arrest showing can therefore be complete even though nothing suggests that evidence will turn up in a place the suspect controls.

The measure for each half is probability rather than certainty. The government must establish a fair probability that a crime has been committed and that the person to be arrested committed it, and the inquiry is practical, resting on the everyday considerations on which reasonable people act instead of on technical rules.⁸ Probable cause cannot be converted into a percentage; it requires a substantial chance of criminal activity, short of proof that the activity occurred.⁹ That modest threshold explains why a complaint can succeed on a showing that could never support a conviction, and why the judge need not be persuaded of guilt. It still requires facts, because a probability can only be assessed from something.

A probability can be judged only from facts, so the papers must set out facts and not just the agent's conclusion. The warrant procedure places the deliberate judgment of a judicial officer between citizen and police so that someone can assess the weight and credibility of the information the complaining officer offers, and a statement that the agent believes the defendant is guilty leaves nothing to assess.¹⁰ In Wong Sun v. United States the information in the officers' hands was so sparse that, in the Court's view, no arrest warrant could have issued on it consistently with Rules 3 and 4 of the Federal Rules of Criminal Procedure.¹¹ Beck v. Ohio, a warrantless-arrest case, shows the same defect in a different record: the officer who testified said only that the suspect's appearance and prior record were known and that an unnamed person had told the officer something unspecified, and the Court refused to treat those thin facts as probable cause because that would allow anyone with a criminal record to be arrested at will.¹² The application is ex parte, meaning the defendant is absent, and the rules against hearsay do not govern it, so an affidavit may lawfully relay what others told the agent.¹³ The judge's check is then scrutiny of the facts reported, and when the source is an informant the papers must show why the source is reliable and how the source knows what is reported.¹⁴ A judge who approved papers lacking those facts would be doing no more than ratifying the bare conclusions of someone else.¹⁵

The judge who reads the papers must also be a neutral reader, and the papers, once filed, fix the record. The Fourth Amendment forbids issuing a warrant without probable cause, so a valid arrest warrant may issue only on a complaint or affidavit that sets out facts establishing it.¹⁶ An officer building a case wants the arrest, and the warrant process places the inferences from the evidence with someone who has no such stake.¹⁷ Coolidge v. New Hampshire applied that point to a search warrant issued by the state's Attorney General, who was directing the investigation and would prosecute the case, and held the warrant invalid because the Fourth Amendment requires a neutral and detached magistrate.¹⁸ The record point follows from the same structure. A complaint that falls short cannot be repaired by an agent who later testifies to additional facts, although sworn testimony actually given to the judge when the warrant was sought may be received where no statute bars it, and search-warrant cases apply the same principle.¹⁹ The reason is incentive: if thin papers could be supplemented after the fact, the agent would have little reason to put the strongest facts before the judge at the outset, and the review meant to come before the arrest would shrink into the after-the-event, hindsight-colored review that the warrant process exists to avoid.²⁰

Once the papers carry both halves, Rule 4(a) directs the judge to issue the warrant to an officer authorized to execute it, and it permits more than one warrant on the same complaint.²¹ The showing is made once, in the complaint and affidavits, so the additional warrants need no new showing, and the arrangement suits a prosecution in which the defendant may have to be sought in more than one place or by more than one officer. Which officers qualify and where a warrant may be carried out are questions for the execution sections later in this chapter.

Exam stems often describe a detailed affidavit about a crime and then ask whether the judge must issue a warrant for a named defendant. Students lose this issue when they stop after confirming that an offense occurred, because the second half, that this defendant committed it, is a separate showing the papers must make.

Issuance by Electronic Means

Rule 4(a) makes the judge's duty depend on what the filed papers show, and nothing in that rule requires the judge to read them in a courthouse. Rule 4.1 supplies the authority for remote review: a magistrate judge may consider information communicated by telephone or other reliable electronic means when reviewing a complaint or deciding whether to issue a warrant or summons.²³ Rule 4(d) points to the same rule from the warrant side, authorizing a magistrate judge to issue a warrant or summons on information communicated in that way.²⁴ The reason for the option is practical. Investigations do not keep court hours, and an agent who has developed probable cause at night, or far from the nearest judge, would otherwise have to choose between waiting and acting without the warrant that a nonemergency home arrest requires. Remote issuance lets the judge perform the same review from a distance, so that choice never has to be made.

A judge who is not in the same room as the applicant loses the protections a courtroom supplies automatically, so Rule 4.1 replaces each of them with a formal step. The oath comes first: the judge must place under oath, and may examine, the applicant and any person on whose testimony the application is based.²⁵ The oath makes the speaker answerable for the truth of what is said, and the power to examine lets the judge ask the follow-up questions that a reader of a bare affidavit could never ask, so a telephone review can be as probing as an in-person one. A record is the next safeguard. The testimony and any exhibits must be recorded and filed, which preserves what the judge actually heard and lets a later challenge be measured against it, much as the written complaint and affidavits fix the record in an ordinary application.²⁶

The last safeguard concerns the document itself. The applicant must prepare a proposed duplicate original of the complaint, warrant, or summons and read or otherwise transmit its contents verbatim to the judge.²⁷ If the applicant reads the contents, the judge enters them into an original; if the applicant transmits them by reliable electronic means, the transmission the judge receives may serve as the original.²⁸ The verbatim requirement closes a gap that remote issuance would otherwise open. The applicant holds one copy and the judge holds another, so unless the two match word for word, the officers could carry out a warrant whose terms differ from the ones the judge approved. The judge's signature and a notation of the date and time of issuance complete the process and fix when the warrant came into existence.

Remote issuance carries one further rule, and it limits the remedy. Absent a finding of bad faith, evidence obtained from a warrant issued under Rule 4.1 is not subject to suppression on the ground that issuing the warrant in this manner was unreasonable under the circumstances.²⁹ The text addresses one ground only, the claim that the agent should have gone before the judge in person or that the circumstances did not justify a remote application. The reason is structural. An after-the-fact inquiry into whether a telephone call was really necessary would invite hindsight review of a convenience decision that has no bearing on whether probable cause existed, and it would cost the government evidence gathered under an otherwise valid warrant. A finding of bad faith reopens the remedy, so the protection covers good-faith use of the method only.

Exam stems about telephone warrants tend to test two opposite errors. The first is to assume that remote issuance relaxes the standard, so that a phone call can support a warrant on less than a sworn, factual showing; in fact the showing itself is unchanged, and Rule 4(a)'s probable cause requirement and the oath still apply. The second is to assume that any warrant obtained by phone is vulnerable because the agent could have appeared in person, which the suppression limit forecloses unless bad faith is found.