Know your rights: Warrantless Arrests and the Law

Not too long ago, our law office successfully represented a young defendant who was arrested by local police officers who entered his apartment late at night, while he was asleep, to arrest him for a misdemeanor offense that had allegedly been committed earlier during the daytime. The officers were not present when the alleged misdemeanor offense occurred and did not bother to obtain a warrant to arrest the young man based on “probable cause.” The case was “nolle pros’d” (the state dismissed the charge) shortly after our law office filed a proper motion.

In Connor v. State, 641 So. 2d 143 (Fla. 4th DCA 1994), police responded to a “911 hang-up” call made from the defendant’s home. The officers spoke to Mr. Connor inside of his garage, while he played pool with a group of his friends. In an effort to show that the last number he had called on his telephone was not “911,” Mr. Connor held the handset next to the ear of one of the police officers.

The officer claimed he thought he was being assaulted, and swung at the defendant, which resulted in a heated confrontation between Mr. Conner and the officers, one of whom also talked to the defendant’s mother.

Mr. Conner attempted to close the garage door to end the conversation and told the officers to leave his house. While doing so, the police saw defendant push and slap his mother. He then ran into the house. The officers ran after him, forced their way into the house and arrested him. He was charged with misdemeanors of battery and resisting arrest without violence and two counts of felony battery on a police officer based on the altercation that took place inside the home. He was convicted of resisting arrest without violence and acquitted of all other charges.

Following Welsh v. Wisconsin, 466 U.S. 740 (1984), Supreme Court law that invalidated a warrantless arrest for a misdemeanor made by police officers who gained access to defendant’s home without consent, the appellate court in Conner reversed the conviction upon concluding that neither the misdemeanor of resisting arrest without violence nor the alleged “battery” on the mother were serious enough offenses to authorize a warrantless entry into defendant’s home. The court noted that there was no suggestion that Mr. Conner would not have been available later after the police officers had presented their story to a neutral judge and obtained an arrest warrant. As the Supreme Court wrote in Welsh,

“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. … When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.”

Welsh, 466 U.S. at 750. As the Court explained in Welsh, approval of warrantless home entries for minor offenses should be rare.

Therefore, even if you are “caught red-handed” committing what amounts to a minor misdemeanor, in the absence of an emergency, police officers cannot impulsively carry out a warrantless arrest, just to save the time of writing out a sworn statement telling a neutral judge their story of “probable cause” to arrest.

When police officers abuse their authority, you must be represented by a criminal defense lawyer with in-depth knowledge of the law and the courage to “speak truth to power.”