How Arrest Warrants Are Obtained and Executed

An arrest warrant is a legal document issued by a criminal court which enables police officers to arrest and hold a criminal suspect. This article will explain how a case begins with a criminal complaint, is followed by the issuance and execution of an arrest warrant and also covers matters concerning false arrests.

Arrest Warrants Protect Constitutional Rights and Liberties

The criminal justice system in the US has certain constitutional protections for the freedom of its citizens. One of those protections guarantees that civilians cannot be arrested without reasonable or “just cause.” Police officers are required to obtain an arrest warrant, usually issued by a criminal court judge, before they are able to arrest a suspect in accordance with the Fourth Amendment to the US constitution. State constitutions will generally have a similar requirement.

Other than special circumstances, police officers will typically need an arrest warrant before they can arrest a criminal suspect. In public places, police officer may arrest a person if there are reasonable grounds for arrest, such as being caught in the process of committing a robbery. However, the police may not arrest a person in a private place (such as one’s home) without an arrest warrant unless special circumstances exist.

The arrest warrant must be obtained from and issued by a criminal court, usually after an indictment or criminal complaint. The criminal court will require the police officers to provide evidence of “probable cause” that a crime took place and that the person to be arrested is suspected of committing the crime. The term “probable cause” means that the facts and circumstances surrounding the crime would lead a reasonable person to believe that the crime was committed by the suspect.

The Criminal Complaint

Criminal actions often begin with the filing of a criminal complaint against a person suspected of committing a crime. A criminal complaint is a written document outlining a specific crime that occurred and why the defendant named in the warrant is suspected of committing the crime. The person filing the complaint will present it to a magistrate or judge and swear under oath as to the truth of its contents. If the magistrate or judge agrees with the complainant that probable cause exists, an arrest warrant will be issued. A police officer may then be given the warrant to have the suspect arrested. Federal and state criminal courts have different rules governing the process of obtaining an arrest warrant but many states follow the federal rules.

The Indictment

If the crime committed is a felony, federal and state criminal courts may require the prosecution to obtain an “indictment” by grand jury before a trial will be held. The grand jury decides whether probable cause exists to charge the suspect with the felony crime. Evidence against the suspect, who is not required to appear during this process, is presented by a prosecutor to a grand jury. If the grand jury agrees with the prosecutor that probable cause exists, the suspect will be “indicted” or formally charged with the felony crime. After an indictment, the prosecutor may then request that the judge or magistrate issue an arrest warrant for the suspect.

Execution of an Arrest Warrant

The Fourth Amendment protects the people against wrongful arrest and deprivation of personal freedom. It requires that arrest warrants contain specific information which includes all of the following:

  • the suspect’s name and/or adequate physical description to enable an arresting officer to positively identify the correct person;
  • a sufficient description of the crime of which the suspect is alleged to have committed including relevant details;
  • a specific request that calls for the immediate arrest of the suspect and subsequent appearance before judge or magistrate;
  • a signature from a judge or magistrate issuing the arrest warrant.

The “execution” of an arrest warrant refers to the process of actually arresting the criminal suspect. Typically an arrest warrant will be provided by the prosecutor’s office and given to a police officer, federal agent or local sheriff. The officer making the arrest should have the warrant on hand to show to the suspect, if requested, and inform the suspect the reasons for the arrest (in addition to any Miranda Warning.)

When armed with an arrest warrant, a police officer may arrest a criminal suspect when found. In a public place, the police officer may arrest the suspect immediately. When a suspect is in a home or other private place, a police officer may not enter the home with unjustified force. Absent special circumstances, the Fourth Amendment requires that the “knock and announce rule” be followed. The arresting officer must announce his presence at the door to notify the suspect that his presence is required. If the suspect does not answer the door or refuses to surrender to the officer peacefully, the police officers may enter the home using reasonable force to make the arrest. The special circumstances where the knock and announce rule would not apply include where a police officer reasonably believes that the notice and announcement would:

  • place the officers or other people in danger (e.g. the suspects are armed and dangerous);
  • result in evidence being destroyed (e.g. flushing illegal drugs down the toilet) or
  • result in the suspect attempting to flee if notified of the officer’s presence.

Defective Arrest Warrants and Unlawful Arrests

If an arrest warrant is deemed to be defective the arrest is considered to be unlawful. An arrest warrant may be considered “defective” when it is ultimately determined not to be properly supported by probable cause, not properly executed or does not contain sufficient information (such as not listing the specific crime of which the suspect is charged.) This does not mean that the case against the defendant is dismissed. A defective warrant means that any evidence gathered by the police officers for the prosecution during or as a result of the illegal arrest will be suppressed. Such evidence may not be presented at trial in the case against the defendant. For example, any illegal drugs or firearms found in the suspect’s home as a result of the illegal arrest may be suppressed. The same applies to any statements that the suspect may have made at the time of the arrest that the prosecution wishes to use at trial.

An experienced criminal defense lawyer will be able to provide the best advice as to whether an arrest warrant was lawful. A criminal attorney will also be able to challenge a false or unlawful arrest as well as provide information about expungement of the arrest after a successful appeal.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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