ⓘ Arrest warrant

                                     

ⓘ Arrest warrant

An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individuals property.

                                     

1. Canada

Arrest warrants are issued by a judge or justice of the peace under the Criminal Code.

Once the warrant has been issued, section 29 of the code requires that the arresting officer must give notice to the accused of the existence of the warrant, the reason for it, and produce it if requested, if it is feasible to do so.

                                     

2. Czech Republic

Czech courts may issue an arrest warrant when it is not achievable to summon or bring in for questioning a charged person and at the same time there is a reason for detention.

The arrest warrant includes:

  • designation of section of criminal code, under which the person is charged
  • precise description of reasons for the issuance of the arrest warrant
  • brief description of the act, for which the person is charged
  • identification of the charged person

The arrest is conducted by the police. Following the arrest, the police must within 24 hours either hand the arrested person over to the nearest court or release the person.

The court must immediately interview the arrested person, who has the right to have an attorney present, unless the attorney is not within reach. The court has 24 hours from the moment of receiving the person from the police to either order remand or to release him. Reaching the maximum time is always reason for immediate release.

                                     

3. Germany

Detaining a person is only allowed under certain conditions defined by the Basic Law for the Federal Republic of Germany German: Grundgesetz fur die Bundesrepublik Deutschland. In article 104 Deprivation of liberty, the fundamental law determines that only a Haftrichter "arrest judge" may order confinement that exceeds 48 hours. The former is called vorlaufige Festnahme "provisional confinement", the latter is named Haftbefehl "order of arrest". Arrest warrants serve the enforcement of the proper expiry for instance in the Code of Criminal Procedure, but also in the civil procedure law and in the administrative law and the special administrative procedures after the Tax Code, the Finance Court order or the social court law.

Article 2 Personal freedoms

1 Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

2 Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.



                                     

4. United Kingdom

The procedure for issuing arrest warrants differs in each of the three legal jurisdictions.

Scotland

In Scotland, a warrant to apprehend may be issued if a defendant fails to appear in court.

Northern Ireland

In Northern Ireland arrest warrants are usually issued by a magistrate.

                                     

4.1. United Kingdom England and Wales

In England & Wales, arrest warrants can be issued for both suspects and witnesses.

Arrest warrants for suspects can be issued by a justice of the peace under section 1 of the Magistrates Courts Act 1980 if information in writing is laid before them that a person has committed or is suspected of having committed an offence. Such arrest warrants can only be issued for someone over 18 if at least one of the following is true:

  • The persons address is not sufficiently established to serve a summons there.
  • The offence the warrant relates to is an indictable offence, or is punishable with imprisonment.

Arrest warrants for witnesses can be issued if:

  • It is probable that a summons would not procure the attendance of the person in question.
  • It is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing, and
  • Any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at the summary trial of an information by a magistrates court,
  • A justice of the peace is satisfied on oath that
  • or if
  • A person has failed to attend court in response to a summons,
  • The court is satisfied by evidence on oath that he is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings,
  • It is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons, and that a reasonable sum has been paid or tendered to him for costs and expenses, and
  • It appears to the court that there is no just excuse for the failure.
                                     

4.2. United Kingdom Scotland

In Scotland, a warrant to apprehend may be issued if a defendant fails to appear in court.



                                     

4.3. United Kingdom Northern Ireland

In Northern Ireland arrest warrants are usually issued by a magistrate.

                                     

5. United States

For the police to make a lawful arrest, the arresting officers must have either 1 probable cause to arrest, or 2 a valid arrest warrant.

A valid arrest warrant must be issued by a neutral judge or magistrate, who has determined there is probable cause for an arrest, based upon sworn testimony or an affidavit in support of the petition for a warrant. The arrest warrant must specifically identify the person to be arrested. If a law enforcement affiant provides false information or shows reckless disregard for the truth when providing an affidavit or testimony in support of an arrest warrant, that may constitute grounds to invalidate the warrant.

These minimum requirements stem from the language contained in the Fourth Amendment. Federal statute and most jurisdictions mandate the issuance of an arrest warrant for the arrest of individuals for most misdemeanors that were not committed within the view of a police officer. However, as long as police have the necessary probable cause, a warrant is usually not needed to arrest someone suspected of a felony in a public place; these laws vary from state to state. In a non-emergency situation, an arrest of an individual in their home requires an arrest warrant.



                                     

5.1. United States Adequate showing of probable cause

Probable cause can be based on either direct observation by the police officer, or on hearsay information provided by others. Information the police bring to the neutral and detached magistrate must establish that - considering the police officers experience and training - the officer knows facts, either through personal observation or through hearsay, that would suggest to a reasonable, prudent person that the individual named in the warrant committed or was committing a crime.

From 1964 to 1983, a constitutionally adequate affidavit comprised exclusively or primarily of hearsay information had to contain information suggesting to the examining magistrate that 1 the hearsay declarant supplying the information to the police was a credible person, and 2 that the hearsay declarant had a strong basis of knowledge for the alleged facts. Since 1983, a constitutionally sufficient affidavit must support a conclusion by a reviewing magistrate that the "totality of the circumstances" suggest that there is a fair probability that the facts the police relied on for probable cause to arrest are valid; the magistrate balances "the relative weights of all the various indicia of reliability and unreliability attending an informants tip."

                                     

5.2. United States Neutral and detached magistrate

The individual issuing the arrest warrant need not be a judge or an attorney, but must be both capable of determining whether probable cause exists as well as be a neutral and detached official. While arrest warrants are typically issued by courts, they may also be issued by one of the chambers of the United States Congress or other legislatures via the call of the house motion and other political entities.

                                     

5.3. United States No known or reckless falsehoods

A warrant is invalid if the defendant challenging the arrest warrant can show, by a preponderance of the evidence, that:

  • Specific parts of the affidavit the police submitted are false.
  • Excluding the false statements, the remainder of the affidavit would not have established probable cause to arrest.
  • The police either knowingly falsified them or made them with reckless disregard as to their truth or falsity.
                                     

5.4. United States Description of arrestee

The arrest warrant must, to comply with the Fourth Amendment, "particularly describe" the person to be seized. If the arrest warrant does not contain such a description, it is invalid - even if the affidavit submitted by the police or the warrant application contained this requisite information.



                                     

5.5. United States Mittimus

A mittimus is a writ issued by a court or magistrate, directing the sheriff or other executive officer to convey the person named in the writ to a prison or jail, and directing the jailor to receive and imprison the person.

In police jargon, these writs are sometimes referred to as a writ of capias, defined as orders to "take" a person or assets. Capias writs are often issued when a suspect fails to appear for a scheduled adjudication, hearing, or similar proceeding.

                                     

5.6. United States Bench warrant

A bench warrant is a summons issued from "the bench" a judge or court directing the police to arrest someone who must be brought before a specific judge either for contempt of court for failing to appear in court as required. Unlike a basic arrest warrant, a bench warrant is not issued to initiate the first criminal action.

For example, if a defendant is released on bail or under recognizance and misses a scheduled court appearance, or if a witness whose testimony is required in court does not appear as required by a subpoena, a bench warrant may be issued for that persons arrest. In cases where a bench warrant is issued to arrest people who posted bail and subsequently missed their court dates, usually after they are rearrested and brought before the judge, the judge may raise the bail amount or revoke it completely.

If a law enforcement officer stops an individual with an outstanding bench warrant against him, the person may be detained on the warrant, and may be held in jail until a bond is posted or a hearing is held on the warrant. The hearing may result in the court setting a new bail amount, new conditions, and a new court appearance date. If a criminal defendant is arrested on a bench warrant, the court may determine that the person is a flight risk likely to flee the jurisdiction and order that person held without bail.



                                     

5.7. United States Outstanding arrest warrant

An arrest warrant is an outstanding arrest warrant when the person named in the warrant has not yet been arrested. A warrant may be outstanding if the person named in the warrant is intentionally evading law enforcement, unaware that there is a warrant out for their arrest, the agency responsible for executing the warrant has a backlog of warrants to serve, or a combination of these factors.

Some jurisdictions have a very high number of outstanding warrants. The vast majority in such American jurisdictions are for traffic related non-violent citations. The U.S. state of California in 1999 had around 2.5 million outstanding warrants, with nearly 1 million of them in the Los Angeles area. The city of Baltimore, Maryland had 100.000 as of 2007. New Orleans, Louisiana had 49.000 in 1996.

Some places have laws placing various restrictions on persons with outstanding warrants, such as prohibiting renewal of ones drivers license or obtaining a passport.