Do Arrest Warrants Have a Diligence Requirement?

The Fourth Circuit recently handed down a ruling, United States v. Ordonez-Zometa, that raised a really interesting question: Does the Fourth Amendment require officers to exercise diligence in executing an arrest warrant?  That is, if there’s an arrest warrant out for a person, are officers required to make the arrest when they can, or soon after that?  And if they can delay making the arrest, how long a delay is allowed?

What makes this particularly interesting to me is that I went in thinking there was no such diligence requirement; the Fourth Circuit said there is such a requirement; but when I looked back into the history of the caselaw, I tended to think the Fourth Circuit’s diligence requirement may just be a vestige of long-overturned caselaw that no one realized is now obsolete.

Here are the details, for the law nerds interested in the puzzle to be solved here.

In the new ruling, officers obtained an arrest warrant for Ordonez-Zomet in a homicide investigation.  The next day, they executed the arrest while he was in a car, leading to a seizure and search of the car and evidence.  As I understand the claim, Ordonez-Zometa is arguing that it was a Fourth Amendment violation for the officers to wait until Ordonez-Zometa was in a car to carry out the arrest warrant.  That was problematic, the notion seems to be, because it gave officers the power to seize and later search the car under the search incident to arrest exception.

In an opinion by Judge King, the Fourth Circuit started off by saying yes, there is a diligence requirement, but that it was not violated here:

The record demonstrates that the district court did not err in denying his suppression motion on the basis of undue delay. To be sure, police officers should act with diligence in the execution of an arrest warrant. See United States v. Weaver, 384 F.2d 879, 880 (4th Cir. 1967). And, here, they did just that: The warrant for Ordonez-Zometa’s arrest was issued at 7:12 p.m. on March 12, 2019, and it was executed less than 24 hours later — at 6:50 p.m. on March 13, 2019. See J.A. 110, 1920. That should end the inquiry. Cf. Weaver, 384 F.2d at 880-81 (upholding execution of an arrest warrant after a delay of more than two weeks).

Further, the court adds, you can’t really evaluate the reasons for undue delay because modern Fourth Amendment law doesn’t usually allow an inquiry into an officer’s subjective thoughts:

In this appeal, Ordonez-Zometa urges our Court to look past the objective facts to examine and second-guess the officers’ decision-making — specifically, why the officers chose to execute the arrest warrant when and where they did so. But this proposition runs headlong into the well-settled principle of Fourth Amendment law of objective reasonableness. This Court does not, and should not, inquire into the strategic motivations of arresting officers. See Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011); see also Brigham City, 547 U.S. at 404.

To be sure, we have cautioned against law enforcement intentionally withholding the execution of an arrest warrant in hopes of gaining access to a location they could not otherwise search. See Weaver, 384 F.2d at 880. But that principle does not license us to disregard the rule that a Fourth Amendment analysis does not turn on the subjective motives of the officers involved. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005) (recognizing discretion police possess in deciding when and how to execute warrants). Indeed, the courts have “almost uniformly rejected invitations to probe subjective intent.” See al-Kidd, 563 U.S. at 737 (internal quotation marks omitted). And for good reason: “the Fourth Amendment regulates conduct rather than thoughts.” Id. at 736 (citing Bond v. United States, 529 U.S. 334, 338 n.2 (2000)).

I found this discussion fascinating because I’d generally been of the understanding that there is no diligence requirement for arrest warrants. As I have thought of it, arrest warrants do two things.  First, they establish probable cause that justifies an arrest, negating the need for a post-arrest hearing into probable cause that would otherwise be needed promptly, under Gerstein v. Pugh.  And second, they permit entry into a person’s home to arrest them when there is reason to believe the person is home, under Payton v. New York. But arrests generally don’t require warrants.  So I’ve been of the impression that there’s no constitutional duty to carry out an arrest when an officer has the opportunity to do so.  Officers can do that, but they don’t need to.

I was curious: Where did this apparent requirement come from?

The Fourth Circuit cites only one case: United States v. Weaver, 384 F.2d 879 (4th Cir. 1967), which was indeed pretty confident about the point.  Weaver said:

Police officials are required to use diligence in the execution of arrest warrants. They may not hold one unexecuted for an unreasonable period of time in the hope that they may ultimately find the defendant in a house or other building which they would like to search, but which they could not lawfully search except as an incident of a lawful arrest. Agents are not required to neglect all other investigatory and enforcement activity in order to execute every arrest warrant, however, and sixteen days’ delay in executing an arrest warrant upon one whose residential address was not definitely known is far from unreasonable on its face. Moreover, such agents are entitled to proceed with some circumspection, so that the fact of their search for a defendant is not disclosed to him at a time when he may flee successfully.

Okay, but where did Weaver get that?  In Weaver, Judge Haynsworth adds three footnotes with a string of citations—no pin cites, no parentheticals, no nothing.  Just cites.  Here are the cites:

[1] Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L.Ed. 877; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Gilbert v. United States, 9 Cir., 291 F.2d 586; Taglavore v. United States, 9 Cir., 291 F.2d 262.

[2] See United States v. Wilson, 2 Cir., 342 F.2d 782; United States v. Simmons, 2 Cir., 338 F.2d 804; Carlo v. United States, 2 Cir., 286 F.2d 841; United States v. Joines, 3 Cir., 258 F.2d 471; Seymour v. United States, 85 U.S.App. D.C. 366, 177 F.2d 732.

[3] Cf. United States v. Santiago, 2 Cir., 327 F.2d 573.

I read the cases cited, and here’s the interesting upshot:  My sense is that these cases reflect a set of assumptions that the modern Supreme Court has rejected.

It turns out that, in the 1930s, the Supreme Court used to care a lot about the subjective intent of officers when they executed searches and seizures.  One such subjective rule was announced by the Supreme Court in 1932 in United States v. Lefkowitz: “An arrest may not be used as a pretext to search for evidence.”

Some background is needed here. In Lefkowitz, officers went to carry out an arrest warrant for Lefkowitz for Prohibition offenses in his office and then ransacked his entire office, taking away lots of documents as evidence of the crime.  The Supreme Court held that searching the office exceeded the search incident to arrest doctrine.

A key problem in Lefkowitz was that, under Gouled v. United States (1921), the government had no power to get search warrants for mere evidence like those documents.  The Justices saw what happened in Lefkowitz as a way to get around the limits of the mere evidence rule of Gouled.  Think about it: The government was trying to use an arrest warrant to search incident to arrest, and searching for things that a search warrant would not itself allow! You can’t do that, Lefkowitz ruled: You can’t use an arrest as a pretext to search for mere evidence.

The Lefkowitz pretext rule created a subjective test.  To know if mere evidence could be seized as part of a search incident to arrest, you had to ask if the arrest itself was a pretextual effort to get to the mere evidence.  In other words, was the government arresting the person to arrest them, or where they arresting the person to gather mere evidence of crime that would be found in a search incident to arrest?

Now at this point you’re probably wondering: Okay, Kerr, what the heck does this have to do with the diligence requirement?

What seems to have happened is that delay in carrying out an arrest warrant was considered evidence that the officers were using an arrest warrant as a pretext to search for mere evidence.  If officers were waiting, the thinking ran, they were waiting until they could line up a search incident to arrest that could get to the mere evidence they wanted.  And so you get cases like Judge Medina’s opinion in Carlo v. United States, 286 F.2d 841(2d Cir. 1961), where he would explain the doctrine as follows:

Law enforcement officers have a right to wait in the hope that they may strengthen their case by ferreting out further evidence or discovering and identifying confederates and collaborators. But every time there is delay in the making of the arrest and there is a search made as incidental to the arrest, the law enforcement officers take the risk that they will be charged with using the arrest as a mere pretext for the search. See United States v. Lefkowitz, 1932, 285 U.S. 452, 467, 52 S.Ct. 420, 76 L.Ed. 877; Henderson v. United States, 4 Cir., 1926, 12 F.2d 528, 51 A.L. R. 420; Worthington v. United States, 6 Cir., 1948, 166 F.2d 557, 566; Clifton v. United States, 4 Cir., 1955, 224 F.2d 329, 330; United States v. McCunn, D.C. S.D.N.Y., 1930, 40 F.2d 295, 296; United States v. Chodak, D.C.D.Md.1946, 68 F. Supp. 455. In other words, the delay in making the arrest is one of the factors to be taken into consideration when the time comes for a judicial determination of the question of whether or not the search was “reasonable.” The mere fact that the arrest was not unlawful does not give law enforcement officers carte blanche to rummage about at will in any home or other place where an arrest is made and then seek to justify their conduct by a blanket statement that the “search” made by them was incidental to an arrest. All the attendant circumstances, including the delay in making the arrest and the reasons for such delay must be taken into consideration.

Note what happened. Lefkowitz in 1932 led to Carlo in 1961, which in turn was the basis for Weaver in 1967 which then led to Ordonez-Zometa in 2025.

But something here was lost.  Weaver missed that, a few months earlier, the Supreme Court had eliminated the doctrinal premise of Lefkowitz in Warden v. Hayden by overturning the mere evidence rule on which Lefkowitz was based.  After Warden v. Hayden, a search warrant can be obtained for mere evidence.  And that means that Lefkowitz‘s pretext rule no longer makes sense; there is no limit that requires a rule to police the limit anymore.

Plus, as Fourth Amendment nerds will know, the modern Supreme Court tends to reject subjective pretext tests in search and seizure cases.  As I have written at length, I think there’s still a lot of subjectivity in Fourth Amendment law.  But the doctrine is a lot more objective than it used to be, making the Lefkowitz pretext rule especially out of place.

If I’m right about this, the notion that there is a diligence requirement for arrest warrants is a historical anachronism.  It’s a vestige of a Fourth Amendment world that no longer exists, mostly reflecting the lost world of Lefkowitz and its concerns about protecting the mere evidence rule.

I say “mostly” because there is a bit more history to the idea of a diligence requirement.  You’ll see occasional mentions in pre-Lefkowitz cases of the preference to act on arrest warrants without too much delay.  But my sense is that this may be another historical anachronism.

A brief aside. Fourth Amendment nerds may remember my November 2024 post, Why Do Search Warrants “Command” that Searches Occur?, the upshot of which was that warrants say that they command that the officer execute the search as a vestige of the era of private prosecution and private investigation.  At common law, it was typically the victim who had obtained the search warrant and then needed the constable to execute it.  Warrants had to order the constable to execute the warrant because the constable had no particular incentive to do it otherwise.

My sense is that something similar explains the occasional early statements about not delaying too much in executing arrest warrants.  In an era of private investigation and private prosecution, the victim would go to the court to get the arrest warrant.  They then needed the constable to make the arrest.  Unlike a search warrant, though, the arrest warrant couldn’t be carried out at a known and predictable place. The constable might have no idea where the person to be arrested was located.  But the victim needed the constable to carry out the warrant for the victim, which made it useful for courts to sometimes suggest that constables shouldn’t just ignore the warrant.  Basically, it wasn’t the constable’s case, but the constable shouldn’t just ignore the warrant and give the victim no way to make the arrest. (Private parties could make arrests, too—what we now know as “citizen’s arrest”—but the rules were somewhat stricter.). But as far as I can tell, there was no formal requirement of diligence as a matter of search and seizure law.

That’s my sense of things, at least.

The post Do Arrest Warrants Have a Diligence Requirement? appeared first on Reason.com.

Source: https://reason.com/volokh/2025/07/02/do-arrest-warrants-have-a-diligence-requirement/