Expeditious Authorization of Magistrates' Complaints
Warrants in Federal Escape CasesCase Authority
An arrest warrant is generally required to arrest escapees.
in a limited number of cases, consent or exigent circumstances may justify
entries into private premises to make these arrests, in all other cases
warrantless entries are prohibited. The prohibition of warrantless entries
the absence of consent or exigent circumstances was clearly enunciated by
United States Supreme Court in Steagald v. United States, 451 U.S.
211 (1981), and Payton v. New York, 445 U.S. 573, 587 (1980).|
"Exigent circumstances" justifying entries on probable cause
a warrant are narrowly drawn and strictly enforced. Numerous appellate
have defined what constitutes exigent circumstances for probable cause to
premises to arrest fugitives. See Dorman v. United States,
F.2d 385, 392 (D.C. Cir. 1970); United States v. Acevedo, 627 F.2d
(7th Cir.), cert. denied, 449 U.S. 1021 (1980); United States v.
Prescott, 581 F.2d 1343 (9th Cir. 1978); United States v. Reed,
F.2d 412, 424 (2d Cir.), cert. denied, 439 U.S. 913 (1978); United
States v. Brown, 540 F.2d 1048, 1055 (10th Cir. 1976), cert.
429 U.S. 1100 (1977); Salvador v. United States, 505 F.2d 1348, 1352
Cir. 1974); United States v. Skye, 492 F.2d 886, 892 (6th Cir. 1974);
United States v. Davis, 461 F.2d 1026 (3d Cir. 1972); Vance v.
Carolina, 432 F.2d 984, 991 (4th Cir. 1970). The exigent circumstances
(1) The violent nature of the offense with which the suspect is to be
(2) whether the suspect is reasonably believed to be armed; (3) a "clear
of probable cause to believe that the suspect committed the crime; (4)
reason" to believe that the suspect is on the premises; (5) a likelihood
suspect will escape if not swiftly apprehended; (6) peaceful circumstance of
entry; and (7) entry to be in the daytime. In addition, "hot pursuit" will
justify a warrantless entry. United States v. Santana, 427 U.S. 38,
(1976); Warden v. Hayden, 387 U.S. 294, 310 (1947). The courts
hold that all of these exigencies must exist to justify warrantless entry to
arrest a fugitive. But see United States v. Adams, 621 F.2d
44 (1st Cir. 1980), holding there is no pass/fail checklist for determining
exigency and that the ultimate test is whether there is such a compelling
necessity for immediate action "as will not brook the delay of obtaining a
Because the exigent circumstances exception to the warrant
is available in only a few cases, and because there is no certainty that
will be given every time an entry is sought to arrest a fugitive, it is
that the investigating officers be armed with a warrant.
In those cases where an officer seeks to enter an escapee's own
premises to arrest him/her, entry is permitted with an arrest warrant and
reasonable belief that the fugitive is inside; it is not necessary for the
officer to also obtain a search warrant. See Payton v. New
When, however, entry is sought into the premises of a third party
arrest a fugitive escapee, a search warrant must be obtained.
Refusal to authorize the issuance of the arrest warrant for a
escapee until after he/she has been apprehended denies the law enforcement
the legal process which is recognized as sufficient for entry into the
of the fugitive to arrest him/her. In addition, refusal to promptly issue
warrants for federal escapees seriously curtails the very necessary
of local law enforcement agencies in the search for and apprehension of
escapees. Thus, prosecutors should authorize complaints and arrest warrants
promptly upon completion of the investigation and presentation of the matter
the United States Attorney's Office by the investigative agency.
After the federal escapee has been apprehended on the arrest
the United States Attorney may re-evaluate the case and may determine that
escape prosecution does not merit proceeding further. In such event, the
complaint may be dismissed and the escapee returned to prison. If the
States Attorney determines that the escape prosecution should continue,
should obtain an indictment within thirty or sixty days pursuant to 18
§ 3161(b), depending on the availability of the grand jury in the
[cited in USAM 9-69.500; USAM 9-69.502]