Arrest warrant

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An arrest warrant or bench 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 individual's property.

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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.

Czech Republic

Czech courts may issue an arrest warrant when it is not possible to summon or bring in for questioning a charged person and at the same time there is a reason for detention (i.e. concern that the charged person would either flee, interfere with the proceedings or continue criminal activity, see Remand in the Czech Republic). [1]

The arrest warrant includes: [2]

The arrest is conducted by the police. [3] Following the arrest, the police must within 24 hours either hand the arrested person over to the nearest court or release the person. [4]

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. [5]

Germany

Detaining a person is only allowed under certain conditions defined by the Basic Law for the Federal Republic of Germany (German : Grundgesetz für 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 vorläufige 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.

— Federal Republic of Germany, Basic Law [6]

India

Courts can issue arrest warrant against an individual under Section 72 of Bharatiya Nagarik Suraksha Sanhita, 2023. Under bailable arrest warrant a person could execute a bail bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. A non bailable arrest warrant is usually issued for serious offences and if there exist a suspicion that the accused will abscond. Section 74 and 75 of BNSS provide the power to the Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. Such person shall acknowledge in writing the receipt of the warrant and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. Section 78 of BNSS protects the rights of the arrested by making it compulsory for the police to present the arrested person before a magistrate within 24 hours of the arrest of the person. [7]

United Kingdom

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

England and Wales

In England and 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. [8] Such arrest warrants can only be issued for someone over 18 if at least one of the following is true: [8]

Arrest warrants for witnesses can be issued if:

Scotland

In Scotland, a warrant to apprehend may be issued if a defendant fails to appear in court. [10]

Northern Ireland

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

United States

For the police to make a lawful arrest, the arresting officer(s) must have either probable cause to arrest, or 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. [11] The arrest warrant must specifically identify the person to be arrested. [12] 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. [11]

These minimum requirements stem from the language contained in the Fourth Amendment. Federal statutes and most jurisdictions require 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. [13] 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. [14] In a non-emergency situation, an arrest of an individual in their home requires a warrant. [15]

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 officer's 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. [16]

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. [17] 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 informant's tip." [18]

Neutral and detached magistrate

The individual issuing the arrest warrant need not be a judge or an attorney, [19] but must be both capable of determining whether probable cause exists as well as be a neutral and detached official. [20] 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.

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:

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 information. [22]

Mittimus

A mittimus (Latin : mittimus, lit.  'we send') 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. [23]

Police jargon sometimes refers to such a writs as a "writ of capias", defined as orders to "take" (or "capture") a person or assets. Capias writs are often issued when a suspect fails to appear for a scheduled adjudication, hearing, or similar proceeding.

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 [24] either for contempt of court or for failing to appear in court as required. Unlike a basic arrest warrant, a bench warrant is not issued to initiate a criminal action. [25]

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 person's arrest. [26] In cases where a bench warrant is issued to arrest someone who posted bail and subsequently missed their court date, once they are rearrested and brought before the judge, the judge may raise the bail amount or revoke it completely. [26]

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 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. [26] 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. [26] [27]

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 American jurisdictions are for traffic related (non-violent) citations. The state of California in 1999 had around 2.5 million outstanding warrants, with nearly 1 million of them in the Los Angeles area. [28] The city of Baltimore, Maryland had 100,000 as of 2007. [29] New Orleans, Louisiana had 49,000 in 1996. [30] The state of Texas in 2009 had at least 1.7 million outstanding warrants in the Houston area alone. [31]

Some jurisdictions have laws placing various restrictions on persons with outstanding warrants, such as prohibiting renewal of one's driver's license [32] or obtaining a passport. [33] [34]

See also

Related Research Articles

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A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, a search warrant cannot be issued in aid of civil process.

<span class="mw-page-title-main">Arrest</span> Law enforcement action

An arrest is the act of apprehending and taking a person into custody, usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questioned further and/or charged. An arrest is a procedure in a criminal justice system, sometimes it is also done after a court warrant for the arrest.

Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Court bail may be offered to secure the conditional release of a defendant with the promise to appear in court when required. In some countries, especially the United States, bail usually implies a bail bond, a deposit of money or some form of property to the court by the suspect in return for the release from pre-trial detention. If the suspect does not return to court, the bail is forfeited and the suspect may be charged with the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded.

A summons is a legal document issued by a court or by an administrative agency of government for various purposes.

<span class="mw-page-title-main">Justice of the peace</span> Judicial officer elected or appointed to keep the peace and perform minor civic jobs

A justice of the peace (JP) is a judicial officer of a lower court, elected or appointed by means of a commission to keep the peace. In past centuries the term commissioner of the peace was often used with the same meaning. Depending on the jurisdiction, such justices dispense summary justice or merely deal with local administrative applications in common law jurisdictions. Justices of the peace are appointed or elected from the citizens of the jurisdiction in which they serve, and are usually not required to have any formal legal education in order to qualify for the office. Some jurisdictions have varying forms of training for JPs.

A citizen's arrest is an arrest made by a private citizen – a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.

<span class="mw-page-title-main">Magistrate</span> Officer of the state, usually judge

The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a magistratus was one of the highest ranking government officers, and possessed both judicial and executive powers. In other parts of the world, such as China, magistrate is a word applied to a person responsible for administration over a particular geographic area. Today, in some jurisdictions, a magistrate is a judicial officer who hears cases in a lower court, and typically deals with more minor or preliminary matters. In other jurisdictions, magistrates are typically trained volunteers appointed to deal with criminal and civil matters in their local areas.

A "failure to appear" (FTA), also known as "bail jumping", occurs when a defendant or respondent does not come before a tribunal as directed in a summons. In the United States, FTAs are punishable by fines, incarceration, or both when committed by a criminal defendant. The severity of the punishment depends on the seriousness of the criminal charges that were the subject of the missed proceeding. An FTA may trigger a bench warrant for the defendant's arrest and impair their eligibility for bail and pretrial release in subsequent proceedings.

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<span class="mw-page-title-main">New York City Criminal Court</span> Court in New York, United States

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Under Indian criminal law, there is a provision for anticipatory bail under Section 438(1) of the Criminal Procedure Code. Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.

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<span class="mw-page-title-main">Pre-trial detention</span> Detention after arrest and charge until a trial

Pre-trial detention, also known as jail, preventive detention, provisional detention, or remand, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held in a prison or detention centre or held under house arrest. Varying terminology is used, but "remand" is generally used in common law jurisdictions and "preventive detention" elsewhere. However, in the United States, "remand" is rare except in official documents and "jail" is instead the main terminology. Detention before charge is commonly referred to as custody and continued detention after conviction is referred to as imprisonment.

A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation instead of by a public prosecutor who represents the state. Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals who retain barristers.

Bail in Canada refers to the release of a person charged with a criminal offence prior to being tried in court or sentenced. The Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms guarantee the right not to be denied reasonable bail without just cause. That right is implemented by the Criminal Code, which provides several ways for a person to be released prior to a court appearance. A person may be released by a peace officer or by the courts. A release by the courts is officially known as a judicial interim release. There are also a number of ways to compel a person's appearance in court without the need for an arrest and release.

Following the common law system introduced into Hong Kong when it became a Crown colony, Hong Kong's criminal procedural law and the underlying principles are very similar to the one in the UK. Like other common law jurisdictions, Hong Kong follows the principle of presumption of innocence. This principle penetrates the whole system of Hong Kong's criminal procedure and criminal law. Viscount Sankey once described this principle as a 'golden thread'. Therefore, knowing this principle is vital for understanding the criminal procedures practised in Hong Kong.

<span class="mw-page-title-main">Code of Criminal Procedure (India)</span> Erstwhile Code of Criminal Law of India

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The Criminal Procedure Code, are Malaysian laws which enacted relating to criminal procedure.

References

  1. ↑ Czech National Council. "Criminal Procedural Code of the Czech Republic, §69(1)". Collection of the Laws of the Czech Republic (in Czech). 141 (1961). Prague. Archived from the original on 7 October 2017. Retrieved 14 July 2012.
  2. ↑ Czech National Council. "Criminal Procedural Code of the Czech Republic, §69(2)". Collection of the Laws of the Czech Republic (in Czech). 141 (1961). Prague. Archived from the original on 7 October 2017. Retrieved 14 July 2012.
  3. ↑ Czech National Council. "Criminal Procedural Code of the Czech Republic, §69(3)". Collection of the Laws of the Czech Republic (in Czech). 141 (1961). Prague. Archived from the original on 7 October 2017. Retrieved 14 July 2012.
  4. ↑ Czech National Council. "Criminal Procedural Code of the Czech Republic, §69(4)". Collection of the Laws of the Czech Republic (in Czech). 141 (1961). Prague. Archived from the original on 7 October 2017. Retrieved 14 July 2012.
  5. ↑ Czech National Council. "Criminal Procedural Code of the Czech Republic, §69(5)". Collection of the Laws of the Czech Republic (in Czech). 141 (1961). Prague. Archived from the original on 7 October 2017. Retrieved 14 July 2012.
  6. ↑ Public Relations Division (October 2010) [first published 23 May 1949]. Tomuschat, Christian; Currie, David P.; Kommers, Donald P. (eds.). Official English Translation of the Basic Law for the Federal Republic of Germany (PDF). Basic rights. Bonn, Berlin: German Bundestag. p. 15. Retrieved 4 September 2013.
  7. ↑ "Bharatiya Nagarik Suraksha Sanhita" (PDF).
  8. 1 2 section 1 of the Magistrates' Courts Act 1980. Statutelaw.gov.uk. Retrieved on 2011-05-29.
  9. 1 2 section 97 of the Magistrates' Courts Act 1980. Statutelaw.gov.uk. Retrieved on 2011-05-29.
  10. ↑ "Criminal Procedure (Scotland) Act 1995" . Retrieved 30 January 2015.
  11. 1 2 Gard, Stephen W. (2008). "Bearing False Witness: Perjured Affidavits and the Fourth Amendment". Suffolk University Law Review. 41 (3): 452. Retrieved 13 August 2017.
  12. ↑ Jenkins, A. (2011). The American Courts: a Procedural Approach. Sudbury, Massachusetts: Jones and Bartlett Publishers. p. 287. ISBN   978-0763755287.
  13. ↑ See, e.g., "Warrantless Arrests, Policy 501.4". Fort Lauderdale Police Department. November 2016. Retrieved 13 August 2017.
  14. ↑ "Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008)". Google Scholar. Retrieved 13 August 2017.
  15. ↑ "Search & Seizure Field Guide" (PDF). ACLU. Retrieved 13 August 2017.
  16. ↑ "Hearsay Evidence as a Basis for Prosecution, Arrest and Search". Indiana Law Journal. 32 (3). Spring 1957. Retrieved 13 August 2017.
  17. ↑ Aguilar v. Texas, 378 U.S. 108 (1964)
  18. ↑ Illinois v. Gates, 462 U.S. 213
  19. ↑ Goldstein, Abraham S. (1987). "The Search Warrant, The Magistrate, and Judicial Review". New York University Law Review. 62 (6): 1173. Retrieved 13 August 2017.
  20. ↑ "Jones v. United States, 333 US 10 (1948)". Google Scholar. Retrieved 13 August 2017.
  21. ↑ Franks v. Delaware, 438 U.S. 154 (1978)
  22. ↑ "GROH V. RAMIREZ".
  23. ↑ Miller*, K.W. (Winter 1990). "Is There a Constitutional Right to a Speedy Probable Cause Hearing?". New England Journal on Crime and Civil Confinement. 16 (1): 121–139.
  24. ↑ "Glossary of Court Terms". Maryland Courts. Retrieved 23 November 2016.
  25. ↑ "Warrants". South Carolina Judicial Department. Retrieved 23 November 2016.
  26. 1 2 3 4 See, e.g., "FAQ's". Clerk of the Court. Brevard County, Florida. Retrieved 13 August 2017.
  27. ↑ Mamalian, Cynthia A. "State of the Science of Pretrial Risk Assessment" (PDF). Pennsylvania Mental Health and Justice Center of Excellence. Archived from the original (PDF) on 15 December 2017. Retrieved 13 August 2017.
  28. ↑ When Justice Goes Unserved / Thousands wanted on outstanding warrants – but law enforcement largely ignores them. Sfgate.com (22 June 1999). Retrieved on 2011-05-29.
  29. ↑ Matt Zapotosky, The Washington Post. "Prince George's police close 4 of year's 12 homicides". The Baltimore Sun .
  30. ↑ Countless Fugitives, Gambit Communications, Inc., 12 September 2003
  31. ↑ "1.7 million warrants out in Houston area". chron.com. 9 August 2009. Retrieved 30 July 2022.
  32. ↑ See, e.g., "Texas Driver License and ID Cards Online Services Eligibility". Texas Department of Public Safety. State of Texas. Retrieved 18 January 2023.
  33. ↑ Ehrlich, Thomas (1966). "Passports". Stanford Law Review. 19 (1): 129–149. doi:10.2307/1227050. JSTOR   1227050.
  34. ↑ Kassem, Ramzi (2013). "Passport Revocation as Proxy Denaturalization: Examining the Yemen Cases". Fordham Law Review. 82: 2099.
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