Dangerous Warrants

52 Pages Posted: 2 Oct 2017 Last revised: 6 Jun 2018

See all articles by Nirej Sekhon

Nirej Sekhon

Georgia State University College of Law

Date Written: 2017

Abstract

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a "warrant preference" on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms "non-compliance warrants": summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.

This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

Keywords: fourth amendment, warrants, arrest, police, police discretion, criminal procedure, law enforcement

JEL Classification: K14, K42, K49

Suggested Citation

Sekhon, Nirej, Dangerous Warrants (2017). Washington Law Review, Vol. 93, 2018, Forthcoming, Georgia State University College of Law, Legal Studies Research Paper No. 2017-16, Available at SSRN: https://ssrn.com/abstract=3045486

Nirej Sekhon (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States
404-413-9166 (Phone)

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