The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a fascinating new decision by Judge William Pryor, the U.S. Court of Appeals for the 11th Circuit answered an interesting Fourth Amendment question: Can a judge issue an order to arrest someone for violating a civil offense? In the case, United States v. Phillips, a Florida state judge issued an order that the suspect should be arrested because he had committed civil contempt for failure to pay his child support. The court ruled that the order was a valid warrant for Fourth Amendment purposes and that the arrest was therefore valid.
The case raises a lot of really interesting conceptual questions about the Fourth Amendment. Here's an overview, together with my thoughts at the end.
Phillips was a convicted drug dealer who was wanted for questioning in a shooting. It turned out that Phillips had also not paid his child support. A Florida judge issued a "a writ of bodily attachment for unpaid child support" ordering that Phillips should be arrested and detained in the county jail until he paid $300 (presumably, the owed child support). The order was based on a finding by the judge, based on a preponderance of the evidence, that Phillips had committed civil contempt by failing to pay child support he was required to pay by a prior court order.
Two days later, the local police published a flier explaining that Phillips was wanted for questioning in relation to the shooting and that police should immediately detain Phillips on the writ if he was spotted. An officer saw Phillips and arrested him on the writ, and a search incident to arrest (or at least what appears to be a search incident to arrest) yielded a loaded handgun.
Phillips was then charged with being a felon in possession of a gun, and he moved to suppress the gun on the grounds that the arrest was improper. According to Phillips, the arrest was invalid because "the writ of bodily attachment" was not a valid Fourth Amendment warrant based on probable cause that he had committed a crime. It was based only on probable cause to believe that he had committed a civil offense—specifically, civil contempt—and so was not a valid warrant for Fourth Amendment purposes.
In the opinion, the court ruled that the writ of bodily attachment was a valid Fourth Amendment warrant and that it was proper to arrest Phillips based on cause to believe that he committed a civil offense. Here's the key section:
To determine whether an arrest is reasonable, "we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve." Virginia v. Moore, 553 U.S. 164, 168 (2008). If history does not provide a conclusive answer, we apply the "traditional standards of reasonableness 'by assessing, on the one hand, the degree to which [the arrest] intrudes upon an individual's privacy and, on the other, the degree to which [the arrest] is needed for the promotion of legitimate governmental interests.'" Id. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
History resolves this appeal. The parties agree that the key question is whether a writ of bodily attachment for unpaid child support is a warrant within the meaning of the Fourth Amendment. Because history tells us that it is, Officer Rodriguez had the authority to arrest Phillips. . .
The Fourth Amendment does not require warrants to be based on probable cause of a crime, as opposed to a civil offense. Nothing in the original public meaning of "probable cause" or "Warrants" excludes civil offenses. At the Founding, "probable cause" meant "made under circumstances which warrant suspicion." Locke v. United States, 11 U.S. 339, 348 (1813) (Marshall, C.J.). And "warrant" meant "[a] Precept under Hand and Seal to some Officer to bring an Offender before the Person granting it." Warrant, A New Law Dictionary 768 (Giles Jacob ed. 1739); accord 2 Warrant, A New and Complete Law-Dictionary 766 (Timothy Cunningham ed. 1765); 2 Warrant, American Dictionary of the English Language 904 (Noah Webster ed. 1828).
Writs of bodily assistance for unpaid child support satisfy these definitions. Florida courts issue the writ only after they find a person liable for civil contempt by a preponderance of the evidence-a standard of proof that is higher than probable cause, see United States v. Sokolow, 490 U.S. 1, 7 (1989). And a writ of bodily attachment is a "warrant," originally defined: it orders the contemnor's arrest and "direct[s]" that he "be brought before the court." Fla. Fam. L.R.P. 12.615(c)(2)(B).
That a writ of bodily attachment is based on civil contempt, as opposed to a crime, makes no difference. Civil warrants were common at the Founding and up through the ratification of the Fourteenth Amendment. See, e.g., U.S. ex rel. Deimel v. Arnold, 69 F. 987 (7th Cir. 1895) (writ of capias ad satisfaciendum); Curry v. Johnson, 13 R.I. 121 (1880) (writ of replevin); Semayne's Case, 77 Eng. Rep. 194 (1604) (writ of replevin); Davies, supra, at 585 & n.94 (writ of assistance); Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1370 (1983) (writ of assistance). Civil arrest warrants were (and still are) subject to the same standards as criminal arrest warrants. See West v. Cabell, 153 U.S. 78, 85-86 (1894).
The closest historical analog to the writ of bodily attachment for unpaid child support is the bench warrant. A bench warrant, or, more traditionally, a "capias," instructs the police to arrest someone to ensure that he appears in court. See Capias (Capias Ad Respondendum), Black's Law Dictionary (10th ed. 2014); Warrant (Bench Warrant), Black's Law Dictionary (10th ed. 2014). Courts have long issued bench warrants after holding someone in contempt. See William Waller Hening, The New Virginia Justice 570 (Richmond, Johnson & Warner, 2d ed. 1810); 4 Blackstone, supra, at *281-83. And the Federal Rules of Civil Procedure today expressly contemplate bench warrants for "civil contempt of a decree or injunction." Fed. R. Civ. P. 4.1(b).
This Court has held that arrests based on bench warrants satisfy the Fourth Amendment, see Simon v. United States, 644 F.2d 490, 494 (5th Cir. 1981), and our sister circuits agree with that proposition even when the bench warrant is based on civil contempt. The Seventh Circuit has held that a bench warrant for failure to pay child support does not present a problem under the Fourth Amendment. Armstrong v. Squadrito, 152 F.3d 564, 569-70 (7th Cir. 1998). And the Second Circuit has explained why bench warrants satisfy the probable-cause requirement of the Warrants Clause:
The decision of the [court] to issue a bench warrant constituted a finding made by a neutral magistrate that [the defendant] had failed to appear in a pending criminal matter. We recognize that its issuance did not amount to a judicial finding of probable cause to arrest in the traditional sense-with respect to the bank robberies (i.e., that a crime had been committed and that defendant had committed it). Nonetheless, the police, armed with the warrant, had authority to find and seize [the defendant] anywhere they could find him for his failure to appear in court. Thus, the presence of the police . . . was pursuant to a direction made by a neutral magistrate. Defendant's rights under the Fourth Amendment require no more.
United States v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982); accord United States v. Gooch, 506 F.3d 1156, 1159 & n.1 (9th Cir. 2007); People v. Allibalogun, 727 N.E.2d 633 (Ill. App. Ct. 2000). We agree with our sister circuits. Because bench warrants and writs of bodily attachment for unpaid child support are virtually indistinguishable, the long historical pedigree of the former convinces us that the latter also passes constitutional muster.
A few thoughts:
1) An interesting question lurking in the case is how much an originalist inquiry can settle the modern meaning of the Fourth Amendment. The court suggests it can. But for a lower court, this question is a bit tricky. On one hand, the Supreme Court has sometimes said that it looks to history to resolve the meaning of the Fourth Amendment where the answer is clear. That was Justice Antonin Scalia's approach in Moore that the panel cites. On the other hand, the Supreme Court has also sometimes interpreted the Fourth Amendment to reject common law search and seizure rules and practices established at the time of the Fourth Amendment's ratification. For example, in Payton v. New York, the court held that a warrant is required to enter a home to make an arrest even though the common law search and seizure rule was that no warrant was required. If the Supreme Court has issued mixed messages as to the role of history in interpreting the Fourth Amendment, what is a lower court to do? It's an interesting question.
2) The result in this case seems plausible, although I think the theory of extending the arrest power to civil offenses should be kept pretty narrow. Long-standing practice suggests that judges have a power to issue arrest orders for refusal to follow prior judicial orders. But in that context, the difference between a refusal that is merely a civil wrong and a refusal that amounts to criminal contempt strikes me as hard to see. I think of civil and criminal contempt as being procedurally and conceptually different but substantively dealing with the same act. When you're dealing with a concept like probable cause, and the underlying act is the same, I would think that there is no difference between a warrant for civil contempt and a warrant for criminal contempt. So maybe arrest warrants for civil offenses are allowed, but only in a very narrow context of civil offenses that are essentially copies of criminal offenses.
3) Limiting the holding as I suggest above avoids the troubling results you might get if you conclude that the Fourth Amendment allows arrests for any civil offense. The Fourth Amendment generally does not require warrants to make arrests, so I would think that a judicial arrest order with a warrant also implies a police officer arrest power without one. If that's right, I think a broad view of the civil arrest power raises problems. I've always thought that the legislature has to cross the civil/criminal line and make the offense criminal to give officers the full panoply of Fourth Amendment authorizations to enforce the offense. That approach gives legislatures a choice: Making the offense a crime gives the police powers to make arrests, but it also gives defendants extra rights that apply only in criminal cases, like the proof-beyond-a-reasonable-doubt standard. The legislature can't have it both ways. Or at least I haven't thought it can. I wonder if others read the opinion as suggesting to the contrary, or otherwise have views on the issue.
4) I wonder if there's another way to get to the same result in this case without having to decide the big issue of whether the government can make arrests for civil offenses. If criminal contempt and civil contempt go to the same conduct, a finding of probable cause as to civil contempt is the same thing as a finding of probable cause as to criminal contempt. If there is no difference, then there actually was a finding of probable cause about a crime. And in that case, the arrest was valid whether or not there was a warrant. Because public arrests don't require warrants, the officer had probable cause that the crime of criminal contempt was committed because it's implicit in the judicial issuance of the writ.
5) Looking at the cases the court cites, I was surprised at how this issue hasn't really been addressed before. There are precedents on bench warrants, for example, but they're really sparse. They're especially sparse on the use of bench warrants for non-criminal warrants.
6) Finally, a quibble: I disagree with the court's view that a finding of a preponderance of the evidence automatically means there was a finding of probable cause. The court cites Sokolow for the view that a preponderance "is higher than probable cause." But I don't think that's right: Sokolow said that reasonable suspicion was less than a preponderance, not that probable cause was less than a preponderance. The Supreme Court has emphasized that you can't turn a concept like probable cause into a percentage probability determination; that's just not how probable cause works. So I think you would need to look at the facts the judge relied on to issue the writ in this case to know whether it satisfied the Fourth Amendment rather than to rely on the issuance of the writ.