Arrest Warrant Law and Legal Definition

An arrest warrant is a judge’s order to law enforcement officers to arrest and bring to jail a person charged with a crime. Before an arrest warrant is issued, the district attorney, a police officer or an alleged victim must make a sworn statement that the accused person committed a crime. It is also called a warrant of arrest.

An arrest warrant founded on probable cause gives the arresting officer the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Before entering a residence to execute an arrest warrant, an officer must have a reasonable belief that the suspect resides at the place to be entered and have reason to believe that the suspect is present at the time the warrant is executed.

State laws vary, but generally if an arrest warrant and affidavit for arrest warrant have been filed with a court, then they must be released upon a request for public records. Information filed with a court is generally a matter of public record and may not be withheld from disclosure.

Requisites of Warrant

  1. It must specify the name of the person whose arrest is ordered, if it be known, if unknown, then some reasonably definite description must be given of him.
  2. It must state that the person is accused of some offense against the laws of the State, naming the offense.
  3. It must be signed by the magistrate, and his office be named in the body of the warrant, or in connection with his signature.

Magistrate May Issue Warrant or Summons

  • (a) A magistrate may issue a warrant of arrest or a summons:
  1. In any case in which he is by law authorized to order verbally the arrest of an offender;
  2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; and
  3. In any case named in this Code where he is specially authorized to issue warrants of arrest.
  • (b) A summons may be issued in any case where a warrant may be issued, and shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place.

    The summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the defendant’s last known address.

    If a defendant fails to appear in response to the summons a warrant shall be issued.”

Name and Description of Accused Person

When a felony arrest warrant is issued, the name of the accused individual must be listed on the felony arrest warrant. Sometimes names have misspellings, and if a person is served the felony arrest warrant, he can legally deny it is him because of the misspelling. Sometimes the arrest warrant lists the accused person as unknown, because the alleged felon has aliases he uses. That is why the proper procedure for the felony arrest warrant calls for a reasonably definite description of the accused.

Judge or Magistrate Signature

Before police may serve a felony arrest warrant, a judge or magistrate must authorize the warrant. For these purposes, a felony arrest warrant is not valid unless the authorized signature is somewhere on the arrest warrant.

The magistrate or judge who signs the felony arrest warrant must also have her office information and location listed somewhere on the arrest warrant. If this part of the felony arrest warrant is not listed, the arrest warrant is invalid, and anything discovered during the time the invalid arrest warrant is served will not stand up as evidence in a court of law.

Probable Cause Arrests vs. Arrest Warrants

The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures.

It goes on to specify that warrants for searches and seizures may only be issued by a court upon a showing of probable cause. The seizure of a person, as occurs during an arrest, is a Fourth Amendment event requiring probable cause.

It was left to the Supreme Court and other federal and state courts to clarify the circumstances under which police may arrest a person without first obtaining a warrant.

Meaning of Probable Cause

Arrest warrants and warrantless arrests must be based upon probable cause according to the Fourth Amendment, but the Constitution does not offer a definition by which courts and police can be guided. Instead, the Supreme Court has been left with the task of giving practical meaning to the concept of probable cause.

Probable cause is, according to the Supreme Court, a concept based upon probabilities that exist based upon the facts and circumstances of each case.

As a general rule, probable cause exists when the facts and circumstances known to police are such as to justify a belief in the mind of a reasonable person that a crime is being, or has been, committed by the individual who is about to be arrested.

The concept of probable cause relies quite heavily on the way in which a police officer perceives or interprets the facts and circumstances existing at a particular time and in a specific place.

For an arrest to be in compliance with the Fourth Amendment, it must be more likely than not that the individual taken into custody committed the crime for which he or she is charged.

Probable Cause Arrests Without a Warrant

Rarely do police find themselves in situations in which there is time to prepare an arrest warrant and go to a judge to have it signed.

Situations typically unfold so quickly that an officer observing a person engaging in criminal conduct must take immediate action to prevent harm or injury from occurring.

Whether or not a police officer had probable cause to justify the making of an arrest is an issue that arises later when the arrest is challenged by a defense attorney on behalf of the person charged with committing the crime.

At the hearing to determine if probable cause existed to make the arrest, prosecutors will use the testimony of the arresting officer to establish probable cause.

A police officer must be able to clearly verbalize at a hearing the facts and circumstances that existed at the time of the arrest upon which probable cause was based.

If a judge disagrees with the officer’s assessment, the arrest and any evidence derived from it could be ruled being an unlawful violation of the Constitution.

Arrest Warrants and State Law

The rules discussed above come from interpretation of the U.S. Constitution.

But states are free to make their own rules about issues like arrest warrants; even if the Constitution doesn’t require an arrest warrant, a state statute might.

“In-home” exception aside, all states allow an officer to make an arrest for a felony without a warrant, even if the officer didn’t witness the crime.

But many states—California for one—don’t permit an officer to carry out a warrantless arrest for a misdemeanor if the crime wasn’t committed in the officer’s presence.

This requirement often means that the officer need only have “reasonable grounds” to believe that the suspect committed a misdemeanor in his or her presence.


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