Warrant (law)

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A warrant is generally an order that serves as a specific type of authorization, that is, a writ issued by a competent officer, usually a judge or magistrate, that permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is performed.

Contents

A warrant is usually issued by a court and is directed to a sheriff, a constable, or a police officer. Warrants normally issued by a court include search warrants, arrest warrants, and execution warrants.

Types

United Kingdom

In the United Kingdom, senior public appointments are made by warrant under the royal sign-manual , the personal signature of the monarch, on the recommendation of the government. In an interesting survival from medieval times, these warrants abate (lose their force) on the death of the sovereign if they have not already been executed. This particularly applied to death warrants in the days when England authorized capital punishment.

Perhaps the most celebrated example of this occurred on 17 November 1558, when England was under the rule of a Catholic queen, Mary I, daughter of Henry VIII and the Spanish Catholic Catherine of Aragon. Several Protestant "heretics" had been condemned to die, a not uncommon situation under the reign of "Bloody Mary". They were tied to stakes in Smithfield, an open market area in central London, and the firewood bundles were about to be lit, when a royal messenger rode up to announce that Mary I had died: the warrants for their death had lost their force. The first formal act of Mary's successor, the Protestant Elizabeth I, daughter of Henry VIII and Anne Boleyn, was to decline to re-issue the warrants; the Protestants were released a few weeks later.

United States

History

For many years, the English, later British, government had used a "general warrant" to enforce its laws. These warrants were broad in nature and did not have specifics as to why they were issued or what the arrest was being made for. A general warrant placed almost no limitations on the search or arresting authority of a soldier or sheriff. This concept had become a serious problem when those in power issued general warrants to have their enemies arrested when no wrongdoing had been done. The Parliament of Great Britain passed the Revenue Act 1767 (7 Geo. 3. c. 46) [1] [2] which reaffirmed the legality of writs of assistance, or general search warrants, and gave customs officials broad powers to search houses and businesses for smuggled goods. [3] This law was one of the key acts of Great Britain which led to the American Revolution,[ citation needed ] and is the direct reason that the American Founding Fathers ensured that general warrants would be illegal in the United States by ratifying the Fourth Amendment to the U.S. Constitution in 1791.

Practice

Under the Fourth Amendment to the United States Constitution a warrant is broadly required, which particularly describes the place to be searched, and the persons, or things, to be seized; no warrants may be issued without probable cause, and support by testimony before a judge.

The courts have recognized many warrantless searches, including exceptions for routine administrative or inventory searches, searches made under exigent circumstances, and searches made with consent.

A typical arrest warrant in the United States will take the approximate form of: "This Court orders the Sheriff or Constable to find the named person, wherever he may be found, and deliver said person to the custody of the Court." Generally, a U.S. arrest warrant must contain the caption of the court issuing the warrant, the name (if known) of the person to be arrested, the offense charged, the date of issue, the officer(s) to whom the warrant is directed, and the signature of the magistrate. [4]

Warrants may also be issued by other government entities, including legislatures, since most have the power to compel the attendance of their members. When a legislature issues a warrant, it is called a call of the house.

The person being investigated, arrested, or having their property seized, pursuant to a warrant is given a copy of the warrant at the time of its execution.[ citation needed ]

See also

Related Research Articles

Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. A similar attitude toward a legislative body is termed contempt of Parliament or contempt of Congress. The verb for "to commit contempt" is contemn and a person guilty of this is a contemnor or contemner.

<span class="mw-page-title-main">Fourth Amendment to the United States Constitution</span> 1791 amendment prohibiting unreasonable searches and seizures

The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

Warrant may refer to:

A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly translated to English as sherif.

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.

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 individual's property.

In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court's 1964 decision Beck v. Ohio, is when "whether at [the moment of arrest] the facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense."

<span class="mw-page-title-main">Bailiff</span> Manager, overseer or custodian

A bailiff is a manager, overseer or custodian – a legal officer to whom some degree of authority or jurisdiction is given. Bailiffs are of various kinds and their offices and duties vary greatly.

A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff or a tax collector, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the possession of lands". When used to evict someone from real property, such a writ is also called a writ of restitution or a writ of possession. In the area of customs, writs of assistance date from Colonial times. They were issued by the Court of Exchequer to help customs officials search for smuggled goods. These writs were called "writs of assistance" because they called upon sheriffs, other officials, and loyal subjects to "assist" the customs official in carrying out his duties.

<span class="mw-page-title-main">Search and seizure</span> Police powers

Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.

A fieri facias, usually abbreviated fi. fa., is a writ of execution after judgment obtained in a legal action for debt or damages for the sheriff to levy on goods of the judgment debtor.

A High Court enforcement officer (HCEO) is an officer of the High Court of England and Wales responsible for enforcing judgements of the High Court, often by seizing goods or repossessing property. Prior to 2004, HCEOs were known as sheriff's officers and were responsible for enforcing High Court writs on behalf of the high sheriff for each county, but they are now directly responsible for such writs. HCEOs operate only in England and Wales.

<span class="mw-page-title-main">Pennsylvania State Constables</span> State peace officers

The office of Pennsylvania State Constable is held as a municipally elected, sworn Peace Officer throughout the U.S. state of Pennsylvania.

<span class="mw-page-title-main">Sheriffs in the United States</span> Chief of county law enforcement

In the United States, a sheriff is the chief of law enforcement of a county. Sheriffs are usually either elected by the populace or appointed by an elected body.

<i>Posse comitatus</i> Aspect of common law

The posse comitatus, frequently shortened to posse, is in common law a group of people mobilized by the conservator of peace – typically a reeve, sheriff, chief, or another special/regional designee like an officer of the peace potentially accompanied by or with the direction of a justice or ajudged parajudicial process given the imminence of actual damage – to suppress lawlessness, defend the people, or otherwise protect the place, property, and public welfare. The posse comitatus as an English jurisprudentially defined doctrine dates back to ninth-century England and the campaigns of Alfred the Great simultaneous thereafter with the officiation of sheriff nomination to keep the regnant peace. There must be a lawful reason for a posse, which can never be used for lawlessness.

<span class="mw-page-title-main">Tribunals, Courts and Enforcement Act 2007</span> United Kingdom legislation

The Tribunals, Courts and Enforcement Act 2007 is an Act of the Parliament of the United Kingdom. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures. Part 1 provides a scheme for radical overhaul of the tribunal system in the UK, creating a new unified structure with two new tribunals to embrace the former fragmented scheme, along with a Senior President of Tribunals. Part 2 defines new criteria for appointment as a judge, generally reducing the length of experience required with the aim of increasing diversity in the judiciary. Part 3 creates a new system of taking control of goods in order to enforce judgments and abolishes ancient common law writs and remedies such as fieri facias, replevin and distress for rent. It introduces a modern system of 'certified enforcement agents' and 'exempted enforcement agents' which includes civil servants such as court officers and County Court bailiffs, civilian enforcement officers and police officers. Part 4 makes some changes to attachment of earnings and charging orders to make recovery of debts more straightforward. Part 5 makes some changes to insolvency practice in order to provide low-cost protection for people who have previously been excluded owing to their small debts and lack of assets. Part 6 provides protection from seizure for foreign antiquities and artefacts on display in the UK and whose provenance is alleged to be broken by misappropriation. Such artefacts can only be seized on a court order that was compelled by a Community obligation or a treaty obligation.

The powers of the police in Scotland, as with much of Scots law, are based on mixed elements of statute law and common law.

Refusing to assist a police officer, peace officer or other law enforcement officer is an offence in various jurisdictions around the world. Some jurisdictions use the terminology '"refusing to aid a police officer" or "failure to aid a police officer".

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

In the United States, there is no consistent use of the office of constable throughout the states; use may vary within a state. A constable may be an official responsible for service of process: such as summonses and subpoenas for people to appear in court in criminal and/or civil matters. They can also be fully empowered law enforcement officers. Constables may have additional specialized duties unique to the office. In some states the constable is an elected or appointed position at the state or local level of local government. Their jurisdiction can vary from statewide to county/parish and local township boundaries based on the state's laws.

References

  1. Knollenberg, Growth, 47
  2. Labaree, Tea Party, 270n12
  3. Reid, Rebellious Spirit, 29, 135n24.
  4. Criminal Procedure for the Criminal Justice Professional; John N. Ferdico, Henry Fradella, Christopher Totten; Cengage Learning; 2015; page 246.