An arrest warrant is generally required to arrest escapees. Although 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 in the absence of consent or exigent circumstances was clearly enunciated by the United States Supreme Court in Steagald v. United States, 451 U.S. 204, 211 (1981), and Payton v. New York, 445 U.S. 573, 587 (1980).
"Exigent circumstances" justifying entries on probable cause without a warrant are narrowly drawn and strictly enforced. Numerous appellate courts have defined what constitutes exigent circumstances for probable cause to enter premises to arrest fugitives. See Dorman v. United States, 435 F.2d 385, 392 (D.C. Cir. 1970); United States v. Acevedo, 627 F.2d 68, 70 (7th Cir.), cert. denied, 449 U.S. 1021 (1980); United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978); United States v. Reed, 572 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. denied, 429 U.S. 1100 (1977); Salvador v. United States, 505 F.2d 1348, 1352 (8th 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. North Carolina, 432 F.2d 984, 991 (4th Cir. 1970). The exigent circumstances are: (1) The violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a "clear showing" of probable cause to believe that the suspect committed the crime; (4) "strong reason" to believe that the suspect is on the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended; (6) peaceful circumstance of the 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, 42 (1976); Warden v. Hayden, 387 U.S. 294, 310 (1947). The courts generally 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 41, 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 warrant."
Because the exigent circumstances exception to the warrant requirement is available in only a few cases, and because there is no certainty that consent will be given every time an entry is sought to arrest a fugitive, it is important 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 York, supra.
When, however, entry is sought into the premises of a third party to arrest a fugitive escapee, a search warrant must be obtained. Steagald, supra.
Refusal to authorize the issuance of the arrest warrant for a federal escapee until after he/she has been apprehended denies the law enforcement agents the legal process which is recognized as sufficient for entry into the premises of the fugitive to arrest him/her. In addition, refusal to promptly issue arrest warrants for federal escapees seriously curtails the very necessary assistance of local law enforcement agencies in the search for and apprehension of federal escapees. Thus, prosecutors should authorize complaints and arrest warrants promptly upon completion of the investigation and presentation of the matter to the United States Attorney's Office by the investigative agency.
After the federal escapee has been apprehended on the arrest warrant, the United States Attorney may re-evaluate the case and may determine that the escape prosecution does not merit proceeding further. In such event, the complaint may be dismissed and the escapee returned to prison. If the United States Attorney determines that the escape prosecution should continue, he/she should obtain an indictment within thirty or sixty days pursuant to 18 U.S.C. § 3161(b), depending on the availability of the grand jury in the district.
[cited in JM 9-69.500; JM 9-69.502]