There are three types of warrants that can be issued against you in California: an arrest warrant, bench warrant, and search warrant. While they have some similarities, they are used for different reasons.
In California, arrest, bench, and search warrants are court orders issued by a court or judge.
Police can go to a person’s last known address in order to find them. Once law enforcement finds the person who the warrant has been issued for, they can immediately arrest and jail them so they can appear in the court that issued the arrest warrant. Having an experienced criminal attorney can assist you with having the warrant recalled or quashed.
If the police have a valid arrest or bench warrant for your arrest, they can hold you in custody until you have your next hearing in court. Though the warrants are issued under different circumstances, failure to comply with either may result in serious consequences. There are significant differences between an arrest warrant and bench warrant, yet some similarities remain.
A search warrant, also issued by a judge, is used to conduct a search of your residence. It permits law enforcement to legally enter your home and seize any of your property they suspect of being potential evidence. They must give you a receipt for any property they take.
What is an Arrest Warrant?
An arrest warrant for you is issued when law enforcement officials or grand jury feels there is probably cause (i.e., a reasonable belief something illegal has occurred) to suspect you’ve committed a crime. It’s a legal document that orders the police to arrest and detain you. Until the police arrest you, you’re usually not aware an arrest warrant has issued for you.
Prior to the issue of an arrest warrant, law enforcement has conducted an investigation. This investigation may include a district attorney’s sworn statements as well as statements by the alleged victim and police officers. If their investigation uncovers evidence resulting in “probable cause”, an indication that you committed the crime, the police can obtain a formal arrest warrant signed by a judge for your arrest.
After the arrest warrant has been issued against you, law enforcement officers may then come to your workplace or home to arrest you. After being arrested, you’ll be taken to jail and be presented in court in front of a judge. If you speak to a judge or the police during this time, additional criminal charges can be filed against you. It is imperative to contact an experienced criminal defense attorney who can advise you under these circumstances.
To make a lawful arrest, the police or arresting officer must show probable cause for arresting you or have a valid arrest warrant issued by a judge or grand jury.
An arrest warrant is valid if it:
Contain the reason for the probable cause
Must have been issued by a detached and neutral judge or grand jury
Must be issued based on police affidavits without known or reckless falsehoods
Must describing the actual person to be arrested
These minimum requirements are based on language contained in the U.S. Constitution’s Fourth Amendment. Federal statute and State jurisdictions usually require an arrest warrant be issued for the arrest of a person for misdemeanors that were not committed while a police officer observed it. However, if a police officer has a probable cause and has observed the crime, an arrest warrant usually is not needed in order for the officer to arrest the person they suspect of having committed a felony. Laws such as these vary by state. If the situation is not an emergency, a person cannot be arrested in their home without an arrest warrant.
The District Attorney can request the court issue an arrest warrant. This may occur when the Prosecutor, after a completed investigation, decides the person needs to be taken right away into custody due to the seriousness of the crime or because of a concern that the person may flee the area. Many times the person receives a letter to appear at a certain date, time, and place. If they fail to appear as indicated in the letter, an arrest warrant is issued.
Adequate Probable Cause for Arrest Warrant
Probable cause is either the direct observation of a police officer or hearsay information provided by witnesses. This information must establish that the officer or witnesses know the facts by personal observation that would suggest the individual in the arrest warrant either had or was in the process of committing a crime.
An affidavit considered constitutionally adequate made of primarily hearsay information must contain information that suggests the witness supplying the information was a credible person and they had a strong basis of knowledge about the alleged facts. It must also support the conclusion that the “totality of the circumstances” suggests the probability that the facts are valid. The judge or magistrate will then take everything into consideration before deciding to issue an arrest warrant.
Detached and Neutral Judge or Magistrate
Although the person issuing the arrest warrant doesn’t need to be a judge or attorney, they must be able to determine if probably causes exists and must also be a neutral and detached official, and not associated with the individuals the arrest warrant may be issued for or associated with any other aspects of the crime in question. Although arrest warrants are usually issued by courts, they can be issued by a chamber of the United States Congress or other legislative body.
No Known or Reckless Falsehoods
An arrest warrant will be considered invalid if the defendant can prove there are specific parts of the affidavit that have been submitted by the police to the court that are false, that the police knowingly made these false statements or made them recklessly without regard as to whether they were true or false, and that after the false statements have been removed the remaining parts of the affidavit does not by itself establish a probably cause for the defendant to be arrested.
Description of the Person for Who the Arrest Warrant is Issued
In order to comply with the U.S. Constitution’s Fourth Amendment, the arrest warrant must “particularly describe” the person the arrest warrant is for. If it does not contain this description, it is considered invalid.
What is a Bench Warrant?
In California, a bench warrant is more common than an arrest warrant. Typically, it’s issued when somebody fails to appear for their court hearing or fails to answer a subpoena. The term “bench warrant” derives from the failure to “sit on a bench” before a judge in court. A bench warrant is an order to immediately arrest somebody.
A bench warrant may be issued in the following circumstances:
Failure to pay a fine;
Failure to appear in court after it has set a fixed date and place for you to appear after criminal charges or an indictment against you;
Failure to appear in court after a judge or attorney has personally ordered you to appear;
Failure to appear in court in order to show proof of enrollment, completion or progress for community service, or some other alternative sentencing; and
Failure to appear in court after a police officer has issued a citation.
If you have been arrested under a bench warrant, the court will set an amount for your bail. If you are unable to pay the bail amount, you most likely will remain in jail until you have your appearance in court. If you are arrested, you need to immediately retain an experienced criminal defense law firm to appear on your behalf in court to seek your release from custody.
An attorney can request that a beach warrant be recalled. In the warrant was issued for a misdemeanor such as public intoxication, DUI, domestic violence, driving with a suspended license, etc., an attorney can recall it and place the matter back to a judge for resolution.
A bench warrant can also be issued if a judge feels the person is in contempt of court, possibly because of their failure to appear at the time and place mandated for their appearance. Bench warrants are typically issued in civil or criminal court proceedings.
Many times a bench warrant is issued for a person who has intentionally voided their court appearance in order to escape the possible consequences of being found guilty. If the person arrested is currently on bail, they will forfeit that bail and have a new, higher bail amount set. A failure to post the new bail amount will result in arrest. Typically, the person is just held in custody. If there’s a bench warrant out for their arrest and they are stopped by an enforcement officer, they can remain in jail until their hearing is held. The hearing may set a new bail amount with new conditions and a new date to appear in court. Many times in this situation the court will declare them to be a flight risk and will order them to remain in jail without bail until further notice.
Daniel R. Perlman
The Law Offices of Daniel R. Perlman