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11/04/2022

Judge David Stras on "Wanted" Posters
Michael Ramsey

Circuit Court originalism from Judge David Stras (8th Circuit), concurring in part and concurring in the judgment in Furlow v. Belmar, involving a Fourth Amendment challenge to the St. Louis County (Mo.) Police Department practice of "issuing electronic notices (“Wanteds”) authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance."  Judge Stras' opinion begins:

Think of the iconic wanted posters of the old west. They contained just a few basic pieces of information: the name of the outlaw, his image, a reward for his capture, and the crime he committed. See, e.g., Barbara Fifer & Martin Kidston, Wanted!: Wanted Posters of the Old West (2003); Leanna S. Schooley & Tom Kellam, Wanted in America (2019). The posters for Jesse James and John Wilkes Booth followed this formula. See Photographs of John Wilkes Booth and Jesse James Wanted Posters, in Sophie Tanno, $5,000 for Jesse James ‘Dead or Alive’ and $100,000 for Lincoln’s three killers: The fascinating wanted posters for America’s biggest 19th century criminals, DailyMail (July 24, 2019, 9:25 AM), https://bit.ly/3SVNPng. And sometimes, like during the manhunt for Jesse James, the poster would contain three words no outlaw would want to see: “DEAD OR ALIVE.” See id.

Although the old west is a bygone era, wanted posters still exist today. Except now officers send out electronic messages and place the information in a computer database. The question is whether these “wanteds,” as St. Louis County calls them, violate the Fourth Amendment. Based on the long common-law tradition of warrantless felony arrests supported by probable cause, I would conclude that the answer is no.

And from later on:

... [W]anteds in some form have been a staple of American life since the Founding. In the 1780s, officials issued proclamations announcing the identity of fugitives and a reward for their capture. During Shays’ Rebellion, for example, a proclamation from Massachusetts Governor James Bowdoin declared a reward for the capture of the rebels and “enjoined and required” all “judges, justices, sheriffs, and constables” to “use their utmost endeavours [sic] to apprehend and secure” them. Photograph of a 1787 Proclamation Offering a Reward for the Apprehension of Daniel Shays and Others, in America’s Historical Imprints, at 1 Early American Imprints, No. 20623; see also Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle 19 (2002); Thomas Chittenden, A Proclamation, in Public Papers of Governor Thomas Chittenden 679–81 (John A. Williams ed., 1969) (reproducing a proclamation by the Governor of Vermont to assist in the capture of the rebels). And later, in the old west, sheriffs “spread[] the news of wanted fugitives to their known haunts and along likely paths of escape” through mail, telegraphs, and posters. Fifer & Kidston, supra, at 5. The person making the arrest often did not have personal knowledge of the crime the outlaw committed. See id. at 6 (explaining that local law-enforcement agencies used wanted posters to ask surrounding jurisdictions for “help in capturing and holding fugitives until one of their [own] officers could arrive”). Even so, no one really questioned the constitutionality of the practice.

According to an early Massachusetts case, the common law may have provided the reason. In Commonwealth v. Carey ... the Massachusetts Supreme Judicial Court declared that

if a constable or other peace-officer arrest[s] a person without a warrant . . . [and] suspects [a felony] on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of [a] felony, the arrest is not unlawful.

66 Mass. (12 Cush.) 246, 251 (1853) (emphasis added). That basic rule, combined with the fact that the constable or peace officer “ha[d] a right to summon others to assist him in making the arrest,” gave us all the ingredients for what eventually became the collective-knowledge doctrine. See Commonwealth v. Phelps, 209 Mass. 396, 410 (1911). The Supreme Court agreed a few years later when it declared that probable cause could come from either an officer’s “own knowledge of facts, or on facts communicated to him by others.” Carroll, 267 U.S. at 161 (relying on both Massachusetts cases).

In conclusion:

[T]he longstanding common-law rule is that officers can arrest suspected felons if they have probable cause, regardless of whether they have a warrant. See Watson, 423 U.S. at 419; see also Rohan, 59 Mass. at 284. And second, an officer can rely on a wanted poster, bulletin, or flyer if another officer had probable cause to issue it. See Hensley, 469 U.S. at 230–31; see also Whiteley, 401 U.S. at 568.

RELATED:  For an earlier related originalist Fourth Amendment opinion by Judge Stras, see here.