A warrant is a document, sometimes referred to as a writ, that gives authority to law enforcement to search a residence or dwelling, business or vehicle or other structure where there is an expectation of privacy to perform some act such as a search for certain items or to make an arrest of a particular person.
An arrest warrant grants authority to a peace or law enforcement officer to make an arrest. The warrant identifies the crime for which the individual is alleged to have committed and it may restrict the hours in which the arrest may be made if the crime is a misdemeanor. Felony arrest warrants do not have time restrictions.
Arrest warrants are similar to bench warrants in that they both authorize an arrest of an individual. Bench warrants are usually issued by a court because a defendant in a criminal case failed to appear for a hearing or trial. Bench warrants may also be issued because you failed to appear in court to testify as a witness pursuant to a subpoena that was served on you. Courts also issue bench warrants for your arrest if you failed to respond to a jury summons or if you are deemed to be in contempt of court. Contempt of court includes violating a restraining order or being disruptive in court.
Bench warrants, however, are not necessarily effectuated at once like an arrest warrant. It may remain outstanding until you are stopped for a traffic violation at which point you will be arrested, handcuffed and brought to a jail or detention center. In many cases, you will not qualify for bail.
When a person is suspected of committing a criminal violation and had not been immediately arrested at the scene or after a chase, a police officer will go to a judge or magistrate alleging a credible factual basis to have the warrant issued. The office may go to the prosecutor first with information the officer feels is sufficient to support an arrest warrant. If convinced, the prosecutor may go the judge with or without the police officer, or the officer may go alone to the judge to ask for the warrant.
Arrest warrants must contain the following information:
- The defendant’s name or, if not known, a sufficient physical description or other name or alias by which the defendant may be identified with some certainty.
- A description of the offense for which the defendant has been charged.
- The time of issuance.
- City and county where it was issued
- Name of the court
- Amount of bail for bailable offenses (non-bail offenses are serious felonies involving violence in which other people risk harm if you were released)
- Time or hours within the defendant may be arrested (unless a felony)
- A command that the defendant be arrested promptly and brought before a judge or magistrate or state or local judicial officer if none is found.
- Signed by a judge or magistrate.
Misdemeanor arrest warrants may only take place between 6:00 am and 10:00 p.m. unless a judge indicates a nighttime authorization on the warrant to extend those hours. The time restriction, however, is not a bar to arrest if an officer makes the arrest in a public place or the person is already in custody on some other matter.
Once the arrest warrant is issued, police officers must promptly search for the defendant. If found, the officers may display the warrant to the defendant or if unavailable, advise the defendant of its existence and display the original or certified copy it to the defendant at a later time if requested, usually by the defendant’s attorney. However, there is no requirement that the officer display or even advise the defendant of the existence of an arrest warrant. In many cases, officers on duty are unaware of the warrant until a traffic stop is made or in some other situation in which identification of the person requested reveals that a warrant is outstanding.
If officers arrive at your home to arrest you, they may forcefully take you or break into your house but only if they have probable cause to believe you are inside. If they are arresting someone else in your home who is not a resident, the police must have a search warrant accompanying the arrest warrant.
Clerical errors such as the misspelled name of the defendant will not invalidate the warrant.
Requirement of Execution Within a Reasonable Time
Arrest warrants are supposed to be executed within a reasonable time. There are cases that have been dismissed if too long a time has passed since its issuance and no arrest has been made since the defendant’s right to a speedy trial has been violated.. This does not apply to homicide or other serious violent or sex crimes where there is no statute of limitations on when you must be prosecuted or the charges will be dismissed.
Motions to dismiss an arrest warrant for untimely prosecution are called “Serna Motions.” You have to prove that you have been prejudiced by the passage of time because evidence has been lost, witness’ memories have faded or relevant persons have passed away and that the lack of prosecution was due to law enforcement’s laxity or incompetence.
If Arrested in a Different County or State
It is not uncommon for a defendant to be arrested in a different county than the one from which the warrant was issued. In such cases, you must be advised of your right to be brought before a judge in the county where you were arrested. Your bail, if indicated in the warrant, will be the same. Once bail is posted, you have to appear before the judge who issued your warrant within 25 days. In misdemeanor cases where no bail is set, you can have the judge in the county where you were arrested set bail.
If there is no bail indicated (felony matter), or you do not post bail or demand to face a judge in the county where you were arrested, then you have to be transported to the county where your arrest warrant was issued within 5 court days of your arrest.
If arrested out-of-state, you may be considered a “fugitive from justice” if you were aware that an arrest warrant had been issued for you and you intentionally left the state to avoid capture. This status means that you face an enhanced penalty to the underlying charge unless you can demonstrate you had no knowledge of the warrant and your lack of knowledge was reasonable. If arrested outside the issuing state, you are entitled to an extradition hearing.
In the majority of cases, a judge issues an arrest warrant by way of a written affidavit given under oath presented by a police officer or assistant prosecutor. The affidavit must sufficiently identify a person and the crime for which he or she is accused of violating. There must be a sufficient factual basis constituting a reasonable belief, or probable cause, to believe this individual committed the crime.
For instance, a vague description of a person with a particular name may not suffice. Instead, the officer must have a sound basis such as eyewitness testimony from reliable witnesses that identified the person so named as the alleged perpetrator.
Arrest warrants may also be issued by a judge if a grand jury indicts a defendant. Grand jury hearings are held in secret with evidence presented only by a prosecutor. If a grand jury believes there is probable cause to believe a crime was committed and this person committed it, then it will indict the person. A judge will then issue a warrant for the person’s arrest.
There is no time limit on when an arrest warrant may be issued so long as it is within the statute of limitations, if applicable, for that offense although the long passage of time may be considered prejudicial. Police or prosecutors may wait to request the warrant until they feel there is sufficient evidence to convict the defendant. Time limits do not apply to homicide or other felony violent offenses and most felony sex crimes.
In many cases, there is eyewitness testimony or forensic proof (fingerprints on a murder weapon or DNA evidence on a body part). It may only take a matter of days or less for the prosecution to request an arrest warrant and for the judge to immediately issue it.
Most defendants are aware or should know that a warrant may be or has been issued against them if they committed a crime. If they retained an attorney, then their defense lawyer can check for them and advise them. In many cases, you may be unaware of the warrant’s issuance until you are stopped for a traffic violation or someone runs a background check on you for employment or to rent a unit.
If you were served personally or by mail with a summons to appear in court and you failed to appear, then most courts will assume you had knowledge that a warrant was issued for your arrest unless you can show that you never received the summons because your address changed with no forwarding address. Other reasonable excuses may be that you had been hospitalized or incapacitated or some other extenuating circumstance prevented you from receiving it. This becomes critical if you leave the state and are arrested since you will be considered a “fugitive from justice” and face increased jail or state prison time on top of the sentence for the underlying offense for which the warrant was issued.
You can have someone go the local Sheriff’s office to see if there is an outstanding warrant. If you do it yourself, you risk immediate arrest. An attorney can check for you as well. If you have retained an attorney and you have an outstanding arrest warrant, your attorney can often negotiate to arrange for bail, if not already indicated. Your attorney can also ask for a reduction of the bail amount or have you released O.R. with a future court date, or bring you in for booking and release once bail is posted.
The easiest and safest manner in checking for warrants is to do so online. Your county or where the crime was committed should have a warrant search option on its website. Should there not be one or it is not updated or not functioning, you can still google it by entering, for example, Los Angeles arrest warrants and a number of sites will appear relevant to your search.
Not all arrest warrants are valid but this does not mean that all charges will be dismissed. For example, if the arrest warrant was supported by an affidavit with fabricated testimony, then any evidence seized from you or in the place where you were arrested (home or office) may be excluded. This could result in there being insufficient evidence that is admissible to convict you and forcing the prosecution to decline prosecution. If there is some incriminating evidence that is admissible, it might result in a lesser charge against you.
This same rule applies if there is other police misconduct. For example, if police did not have probable cause to believe you were at your home when they arrived to arrest you but made a forcible entry anyway and seized incriminating evidence, that evidence is subject to being suppressed by your defense attorney for unlawful seizure.
Similarly, if you were arrested outside of the time limits on a misdemeanor charge, any evidence seized might also be suppressed on a motion by your attorney.