“Warrantless Arrest” – When are cops allowed to make one?

A police officer is authorized to arrest you without an arrest warrant when you commit an offense in the presence of the officer and when a peace officer has probable cause to believe that you committed a felony. Technically, police officers can also make a warrantless arrest if they have probable cause to believe you committed a minor crime punishable by a small fine. However, they rarely make arrests in these situations.

In most cases, police must have a valid arrest warrant to enter your home and arrest you. Exceptions to this rule do exist though. For example, if police are in hot pursuit of you, and you run into a home, the police can go ahead and enter the home and make an arrest.

In situations not discussed above, police must have a valid warrant to make an arrest. A judge will issue a warrant if they determine that there is probable cause that you committed a crime.

Judges issue arrest warrants based on:

• evidence presented to them by a peace officer and/or a District Attorney, or
• following a grand jury indictment.

When can law enforcement arrest me without a warrant?

A warrantless arrest is when police make an arrest without a warrant. California law says that a police officer can make a warrantless arrest in two main situations.

1) You commit any crime in the officer’s presence

The first instance where police may make a warrantless arrest is when you commit a crime in the officer’s presence.

For example, a police officer is on night duty and walking through a neighborhood with several popular bars. The officer looks into one establishment and sees you throw a bottle at another patron. Here, the officer can lawfully arrest you for assault and battery.

2) You commit a felony

Police are also authorized to make a warrantless arrest when they have probable cause to believe you committed a felony. This is true even if you did not commit the crime in the officer’s presence.

For example, a police officer is on patrol and sees a woman running out of a home. She is crying, with blood on her face and shirt, and is shouting “he hit me.” The officer looks inside the home and sees the woman’s husband enraged with blood on his knuckles. Here, the officer can lawfully arrest the husband for an act of domestic violence, namely corporal injury to a spouse per Penal Code 273.5 PC (which can lead to felony charges under California criminal law).

Note that police officers cannot make a warrantless arrest for a misdemeanor (e.g., DUI or disorderly conduct) when the crime is committed outside their presence. State law requires an arresting officer to have a valid arrest warrant in these situations.

Probable cause

Even when a law enforcement officer makes a lawful warrantless arrest, criminal procedure laws and the Fourth Amendment require the officer to inform a judge that they had probable cause to make an arrest. If they fail to do so, you cannot legally remain in custody.¹

What about arrests for minor crimes?

The United States Supreme Court has ruled that police can make a warrantless arrest if they have probable cause to believe you committed a minor crime punishable by only a small fine.²

In making their ruling, the court acknowledged that making the lawfulness of an arrest contingent upon the seriousness of a crime poses a difficulty for law enforcement. The difficulty is that the police would have to know the penalty for every crime.

For this reason, and matters of practicality, police rarely make warrantless arrests for minor crimes.

Can police, without a warrant, enter my home to arrest me?

The law says that police generally need an arrest warrant to enter your home and arrest you.³ However, it is legal for an officer to remain near your home during the time it takes another officer to get a warrant.

Note, though, that police can make an in-home arrest without a warrant if there are “exigent circumstances” that make it impracticable for the police to get a warrant.

Examples of exigent circumstances

Examples of situations in which there are exigent circumstances include when police:

1. are in hot pursuit and fresh pursuit of you, and you run into a home,
2. believe someone in the home is in danger and make an arrest to protect the alleged victim, and
3. are let into a home by someone answering the door.

When can a judge issue an arrest warrant in California?

Judges will issue an arrest warrant if they are presented with probable cause that you (the suspect) committed a crime.⁴

Judges issue arrest warrants based on:

• evidence presented to them by a law enforcement agency and/or a District Attorney,⁵ or
• following a grand jury indictment.

Contents of an arrest warrant

In order to be valid, a California arrest warrant must include:

• your name,
• the crime which you are accused of committing,
• the time of issuance,
• the city or county of issuance,
• the signature and title of the judge, and
• the name of the court.⁶

Additional reading

For more in-depth information, refer to these scholarly articles:

• Step outside, Please: Warrantless Doorway Arrests and the Problem of Constructive Entry – New England Law Journal.
• Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of Due Process of Law – Mississippi Law Journal.
• A Summary and Analysis of Warrantless Arrest Statutes for Domestic Violence in the United States – Journal of Interpersonal Violence.
• Warrantless Misdemeanor Arrests and the Fourth Amendment – Missouri Law Review.
• Criminal Law – Warrantless Arrests – Minor Offenses are Insufficient to Establish Exigent Circumstances Justifying a Warrantless Home Entry – Rutgers Law Journal.