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   Table Of Contents
      Chapter 4: Arrests:
         Arrest Warrants:
            Defined
            Content
            Other Types of Arrest Warrants:
               Bench Warrant
               Telephonic Arrest Warrant
               Ramey Warrant
               A 'DNA, John Doe' Warrant
            Necessity of an Arrest Warrant
            Service and Return:
               Felony arrest warrants
               Misdemeanor Arrest Warrants
                  Night Service
               Necessity for Having a Copy of The Arrest Warrant
               Knock and Notice
               Procedure After Arrest:
                  Disposition of Prisoner
                     In-County Arrest Warrants
                     Out-of-County Arrest Warrants
                  Necessity of Having Probable Cause
                  The Steagald Warrant
               Extensions
               Statute of Limitations

Defined

Defined A warrant of arrest is a written order, signed by a magistrate, and generally directed to a peace officer, commanding the arrest of the defendant.  (P.C. § 813)

A warrant will issue "if, and only if, the magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, . . . ."  (Emphasis addedP.C. § 813(a))

The warrant must be supported by a sworn statement made in writing, reflecting the probable cause for the arrest.  (P.C. § 817(b))

However, an "administrative warrant," issued pursuant to 18 U.S.C. § 4213(a) for the retaking of an alleged parole violator, is not subject to the oath or affirmation requirement of the Fourth Amendment.  (United States v. Sherman (9th Cir. 2007) 502 F.3rd 869; noting that the rule is to the contrary when the warrant is for a supervised release violation, per 18 U.S.C. § 3583(i), as held by United States v. Vargas-Amaya (9th Cir. 2004) 389 F.3rd 901.) 

The "complaint" must be backed by a factual showing (i.e., a declaration or affidavit) reflecting probable cause.  (See People v. Sesslin (1968) 68 Cal.2nd 418.)

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Content

Content:  An arrest warrant is directed to "any peace officer, or any public officer or employee authorized to serve process where the warrant is for a violation of a statute or ordinance which such person has the duty to enforce" (Emphasis added), and states the following (P.C. § 816):

  • The crime, designated in general terms.
  • The defendant's name, or, if this is unknown, any name. (E.g., "John Doe.")
  • The date and time of issuance.
  • Bail.
  • The city or county where it is issued.
  • The duty of the arresting officer to bring the defendant before the magistrate.
  • The judge's signature.
  • The court.
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Bench Warrant

Bench Warrant:  An arrest warrant for a defendant who has been discharged on bail and subsequently fails to appear in court.  (P.C. §§ 979 et seq.)

A bench warrant, issued by a neutral and detached magistrate upon a defendant's failure to appear, is legal justification for making entry into a residence in which there is probable cause to believe the subject of the warrant is hiding, despite the fact that such a warrant is issued without a finding of probable cause.  (United States v. Gooch (9th Cir. 2007) 506 F.3rd 1156.)

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Telephonic Arrest Warrant

Telephonic Arrest Warrant:  An arrest warrant utilizing telephonic communication between the magistrate and the affiant, and facsimile (i.e., "fax") transmission equipment or computer e-mail, to send the necessary documents to the magistrate for signature and return of the warrant to the affiant.  (P.C. § 817(c), (d), (e) & (f))

See P.C. § 817(c) for the step-by-step procedures, and P.C. § 817(f) for the suggested warrant format.

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Ramey Warrant

"Ramey Warrant:"  A term of art used to describe an arrest warrant issued prior to the court filing of a criminal case against a specific defendant.  (See People v. Ramey (1976) 16 Cal.3rd 263.)

Ordinarily, a prerequisite to the issuance of an arrest warrant is the filing of a complaint with the magistrate, charging a felony originally triable in the superior court of the county, or where the complaint is presented to a judge in a misdemeanor or infraction case, charging an offense triable in that judge's court.

However, the formal filing of a written complaint is not a condition precedent to issuance of an arrest warrant.  (People v. Case (1980) 105 Cal.App.3rd 826, 832.)

Long approved by case law (People v. Case, supra; and People v. Bittaker (1989) 48 Cal.3rd 1046, 1070-1072.), pre-filing arrest warrants are now authorized by statute.  (P.C. § 817(a))

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A 'DNA, John Doe' Warrant

A "DNA, John Doe" Warrant: An arrest warrant must identify the subject of the subject of the warrant with reasonable certainty. Describing the subject of an arrest warrant as merely "John Doe" with a description of a particular DNA profile is sufficient to meet this constitutional requirement. (State of Wisconsin v. Dabney (2003) 254 Wis.2nd 43 [663 N.W.1nd 366].)

This issue is presently pending before the California Supreme Court. (See People v. Robinson (2007) 156 Cal.App.4th 506; Review Granted 2/13/08.)

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Necessity of an Arrest Warrant

Necessity of an Arrest Warrant

Warrantless arrests, at least at any location other than within one's private home or other area to which the public does not have ready access (see below), have been held by the United States Supreme Court to be lawful, at least when the offense is a felony (whether or not it occurred in the officer's presence), or for any offense (felony or misdemeanor) which occurs in the officer's presence (see below).  (United States v. Watson (1976) 423 U.S. 411 [46 L.Ed.2nd 598].)

However the failure to get an arrest warrant when the person to be arrested is in his own home and there are no exigent circumstances justifying the lack of a warrant is a Fourth Amendment violation.    (Fisher v. City of San Jose (9th Cir. 2007) 509 F.3rd 952: Failure to obtain an arrest warrant for an armed, barricaded, drunk in his own home, threatening to shoot police officers, during a standoff that lasts for over 12 hours, held to be a Fourth Amendment violation.)

En banc hearing granted, March 14, 2008, making this case no longer citable pending a new decision by a full panel of the Ninth Circuit Court of Appeal.

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Felony arrest warrants

Felony arrest warrants may be executed anytime, anywhere, day or night.  (P.C. §§ 836(a), 840)

But see Steagald v. United States (981) 451 U.S. 204 [68 L.Ed.2nd 38], below, mandating a search warrant to execute an arrest warrant in a third party's home.

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Misdemeanor Arrest Warrants

Misdemeanor arrest warrants may be served anytime, anywhere, day or night, except that when the suspect is not in public but not already in custody (e.g., in his residence), the warrant may not be served between 10:00 p.m. and 6:00 a.m. unless the warrant is "endorsed" for "night service."  (P.C. § 840(4))

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Night Service

"Night Service" must be justified in the warrant affidavit, describing the need to make the arrest in other than the daytime.  (See People v. Kimble (1988) 44 Cal.3rd 480, 494; discussing the need for justifying nighttime service for a search warrant.)

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Necessity for Having a Copy of The Arrest Warrant

Necessity of Having a Copy of The Arrest Warrant:  The law contemplates that when an arrest is made, the officer should have a copy of the warrant in his possession.  (People v. Thomas (1957) 156 Cal.App.2nd 117, 120.)  However, it has been held that there is no violation even though he does not.  (P.C. § 842; People v. Miller (1961) 193 Cal.App.2nd 838, 839.)

However, if requested, the arrestee shall be shown a copy of the warrant as soon as it is practicable to do so.  (P.C. § 842.)

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Knock and Notice

Knock and Notice:  The "knock and notice" rules (see Search Warrants, below) apply as well to the execution of an arrest warrant, and for warrantless arrests within a residence.  (P.C. § 844.)

The rule that evidence will not be suppressed as a result of a knock and notice violation, as dictated by Hudson v. Michigan (2006) 547 U.S. 586 [165 L.Ed.2nd 56] (a search warrant case.), is applicable as well as in a warrantless, yet lawful, arrest case, pursuant to P.C. § 844.  (In re Frank S. (2006) 142 Cal.App.4th 145.)

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Disposition of Prisoner

Disposition of Prisoner:  An officer making an arrest in obedience to a warrant must proceed with the arrestee as commanded by the warrant, or as provided by law.  (P.C. § 848)

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In-County Arrest Warrants

In-County Arrest Warrants:  If the offense is for a felony, and the arrest occurs in the county in which the warrant was issued, the officer making the arrest must take the defendant before the magistrate who issued the warrant or some other magistrate of the same county.  (P.C. § 821)

Note:  In reality, an arrestee is typically taken to jail where he or she will await the availability of a magistrate.

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Out-of-County Arrest Warrants

Out-of-County Arrest Warrants:  If the defendant is arrested in another county on either a felony (P.C. § 821) or a misdemeanor (P.C. § 822) warrant, the officer must, without unnecessary delay:

  • Inform the defendant in writing of his right to be taken before a magistrate in that county; and
  • Note on the warrant that he has so informed defendant; and
  • Upon being requested by the defendant, take him before a magistrate in that county.

That magistrate is to admit the defendant to the bail specified on the warrant, if any.  (P.C. §§ 821, 822)  If the offense is a misdemeanor, and no bail is specified on the warrant, the magistrate may set the bail.  (P.C. § 822)

If the defendant does not bail out for any reason, law enforcement officers from the county where the warrant was issued have five (5) days (or five (5) court days if the offense is a felony and the law enforcement agency is more than 400 miles from the county where the defendant is being held) to take custody of the defendant.  (P.C. §§ 821, 822)  (See 62 Op.Cal.Atty.Gen. 78, 2-16-79)

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Necessity of Having Probable Cause

Necessity of Having Probable Cause: Before a police officer may enter a home, absent consent to enter, the officer must have "probable cause" to believe the person who is the subject of the arrest warrant is actually inside at the time. (People v. Jacobs (1987) 43 Cal.3rd 472; United States v. Gorman (9th Cir. 2002) 314 F.3rd 1105; United States v. Diaz (9th Cir. 2007) 491 F.3rd 1074; People v. Phillips (9th Cir. 1974) 497 F.2nd 1131; (United States v. Gooch (9th Cir. 2007) 506 F.3rd 1156, 1159, fn. 2.)

An arrest warrant constitutes legal authority to enter the suspect's residence and search for him. (People v. LeBlanc (1997) 60 Cal.App.4th 157, 164.)

"Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home." (Steagald v. United States (981) 451 U.S. 204, 214-215, fn. 7 [68 L.Ed.2nd 38, 46].)

"Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." (Italics added; Payton v. New York (1980) 445 U.S. 573, 603 [63 L.Ed.2nd 639, 661].)

This "reason to believe" language, in making reference to the likelihood that the subject is home at the time the arrest warrant is served, has been interpreted by both state and federal authority to require full-blown "probable cause" to believe the suspect is there at that time. (See People v. Jacobs, supra; United States v. Gorman, supra; and People v. Phillips, supra; see "Sufficiency of Evidence to Believe the Suspect is Inside," below.)

"It is not disputed that until the point of Buie's arrest the police had the right, based on the authority of the arrest warrant, to search anywhere in the house that Buie might have been found, . . ."

(Maryland v. Buie (1990) 494 U.S. 325, 330 [108 L.Ed.2nd 276, 283].)

See "Sufficiency of Evidence that the Suspect is Inside," below.

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The Steagald Warrant

The "Steagald Warrant:" If the person is in a third party's home, absent consent to enter, a search warrant for the residence must be obtained in addition to the arrest warrant. (Steagald v. United States, supra, at pp. 211-222 [68 L.Ed.2nd at pp. 45-52]; People v. Codinha (1982) 138 Cal.App.3rd 167; see P.C. § 1524(a)(6).)

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Extensions

Extensions: Arrest warrants do not expire, and therefore do not need to be renewed or extended. They will remain in the system until purged, served, or recalled by the court.

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Statute of Limitations

Statute of Limitations: Obtaining an arrest warrant will "toll" (i.e., "stop") the running of the statute of limitations for the charged offense(s). (P.C. §§ 803, 804; People v. Lee (2000) 82 Cal.App.4th 1352.)

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Legal Requirements of an Arrest:
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