ILLEGAL SEARCH SERIES
This is part one of a multi-part series on police searches, warrants, entries, and arrests that is of critical interest to my clients and the public.
Today’s article will discuss only whether police may enter a home (dwelling) with a bench warrant.
First, what is a bench warrant?
The bench is where the judge sits, so a bench warrant is issued by the bench (judge) for an arrest based on a case that has already been in his or her court. It is often issued for failing to show up when you’ve agreed or been told to appear in court. It can also be issued if you fail to complete or show proof of progress in some activity required by the court for a conditional release, term of release on bail or your terms of probation.
A bench warrant may also occur if you violate an order of the court or a term of probation – a common example would be if you are subject to an order to not be in the company of another person or persons and it is found by the court that you are not complying with the order. Another example of when a bench warrant may issue is if you have been subpoenaed to appear in court as a witness and you do not show up on the date and time listed on the subpoena.
There are several other circumstances when a bench warrant may issue, but the most common is the Failure To Appear (FTA). Some of the other examples involve not paying child support, not showing up for jury service, failure to obey an eviction, and so on.
Bench warrants will often be issued with a certain amount attached to them, for example, “A bench warrant will issue in the amount of $20,000.” A judge may also issue with “no bail” amount, meaning that once you are arrested you will be brought to court and may not bail out.
Any warrant acts to command any law enforcement officer to arrest you and bring you before a judge.
What Law Applies?
The Fourth Amendment to the United States Constitution is only 54 words long. Yet, millions and millions of words have been written about it. How to interpret it. How to act on it.
Three strikes and 25 to life. When the 3-strikes law was passed in California, any felony would do. In fact, the first “test” case for the 3-strikes law was a Hispanic man on the central coast who stole a $15 hammer from a hardware store. Because he had two prior strikes and had priors for shoplifting, a now-defunct law called “Petty theft with a prior” was used to charge this man with a felony and he was sentenced as a third striker to 25-life. Not only is petty-theft with a prior no longer an option for prosecutors to give someone a felony for multiple shoplifting charges, but beginning with a strong position by LA County’s former head DA, Steve Cooley, prosecutors in California are no longer allowed to allege a third strike except for serious or violent felonies.
How is a Bench Warrant Resolved or Cleared?
Bench Warrants are resolved generally in one of two ways:
- You or Your attorney go to court, advance the case with the clerk and the prosecutor and wait for the case to be ready to be called. Once called, offer an explanation and apology for why you did whatever caused the warrant to be issued. The goal is to get the warrant recalled and quashed and for your case to be returned to good standing.
- You are arrested. In many places around California, if you have an active bench warrant the police will come to known locations for you, including your last known address. In Los Angeles County, this is somewhat unusual for misdemeanors and many lesser felonies as law enforcement is too busy with new cases, but outside LA County, it is not unusual for law enforcement to regularly pick up even subjects of misdemeanor warrants. Even if the police don’t know where you currently live or stay, or are too busy to come look for you (LA), you can still be arrested if you are stopped for a traffic violation, come to a checkpoint, enter or exit the country, arrive at an airport, and the like.
If you voluntarily take care of your outstanding warrant as described in section one above, it is common that the court will forgive one such transgression. However, if you are picked up for the warrant it may be difficult to convince the judge that you are worthy of the court’s trust to release you again.
Under California Law, you can be charged with a separate crime for Failure to Appear (FTA), as either a misdemeanor or felony. Not only is this a violation of probation (if you are on probation), but it can result in additional jail time, increased probation and other terms. It is always best to engage the services of an attorney to recall your warrant before you are caught.
The Police May Enter Your Home or a Dwelling to Arrest You
In the end, if you have an active, outstanding bench warrant issued by the court, you are a effectively a fugitive, and law enforcement may enter your home to effectuate an arrest. Not only are such entries and arrests violent and dangerous, but they are frightening experiences for you and anyone else in your home, including family, friends, children or roommates. Such legal entry can result in the discovery of new crimes and injuries and damage to your property are not uncommon consequences of a police search. Generally, there is no violation of your rights or those of the home you were sheltering in to challenge either your arrest or any other negative that results from the freedom of the police to make entry.
Examples in my practice have included finding a gun, drugs or other materials that could result in new charges against you or anyone else in the residence. Often these new charges can be far more serious than those that resulted in the bench warrant in the first place.
If in doubt, always consult with a qualified criminal defense attorney about how to avoid arrest and additional problems because of a bench warrant.
While California Law is specifically considered in this article, it is more or less accurate anywhere in the United States.
I am always available to discuss these and other issues with you. Please call if you have questions or concerns.