Arrest warrant

In England and Wales, arrest warrants can be issued for both suspects and witnesses.

Arrest warrants for suspects can be issued by a justice of the peace under section 1 of the Magistrates' Courts Act 1980 if information (in writing) is laid before them that a person has committed or is suspected of having committed an offence.[7] Such arrest warrants can only be issued for someone over 18 if at least one of the following is true:[7]

• The offence the warrant relates to is an indictable offence, or is punishable with imprisonment.
• The person's address is not sufficiently established to serve a summons there.

Arrest warrants for witnesses can be issued if:

• A justice of the peace is satisfied on oath that:[8]
  • Any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at the summary trial of an information by a magistrates' court,
  • It is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing, and
  • It is probable that a summons would not procure the attendance of the person in question.
• or if:[8]
  • A person has failed to attend court in response to a summons,
  • The court is satisfied by evidence on oath that he is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings,
  • It is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons, and that a reasonable sum has been paid or tendered to him for costs and expenses, and
  • It appears to the court that there is no just excuse for the failure.

In Scotland, a warrant to apprehend may be issued if a defendant fails to appear in court.[9]

In Northern Ireland arrest warrants are usually issued by a magistrate.

Probable cause can be based on either direct observation by the police officer, or on hearsay information provided by others. Information the police bring to the neutral and detached magistrate must establish that—considering the police officer's experience and training—the officer knows facts, either through personal observation or through hearsay, that would suggest to a reasonable, prudent person that the individual named in the warrant committed or was committing a crime.[15]

From 1964 to 1983, a constitutionally adequate affidavit comprised exclusively or primarily of hearsay information had to contain information suggesting to the examining magistrate that (1) the hearsay declarant supplying the information to the police was a credible person, and (2) that the hearsay declarant had a strong basis of knowledge for the alleged facts.[16] Since 1983, a constitutionally sufficient affidavit must support a conclusion by a reviewing magistrate that the "totality of the circumstances" suggest that there is a fair probability that the facts the police relied on for probable cause to arrest are valid; the magistrate balances "the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip."[17]

The individual issuing the arrest warrant need not be a judge or an attorney,[18] but must be both capable of determining whether probable cause exists as well as be a neutral and detached official.[19] While arrest warrants are typically issued by courts, they may also be issued by one of the chambers of the United States Congress or other legislatures.

A warrant is invalid if the defendant challenging the arrest warrant can show, by a preponderance of the evidence, that:

• Specific parts of the affidavit the police submitted are false.
• The police either knowingly falsified them or made them with reckless disregard as to their truth or falsity.
• Excluding the false statements, the remainder of the affidavit would not have established probable cause to arrest.[20]

The arrest warrant must, to comply with the Fourth Amendment, "particularly describe" the person to be seized. If the arrest warrant does not contain such a description, it is invalid—even if the affidavit submitted by the police or the warrant application contained this information.[21]

A mittimus is a writ issued by a court or magistrate, directing the sheriff or other executive officer to convey the person named in the writ to a prison or jail, and directing the jailor to receive and imprison the person.[22]

In police jargon, these writs are sometimes referred to as a writ of capias, defined as orders to "take" a person or assets. Capias writs are often issued when a suspect fails to appear for a scheduled adjudication, hearing, or similar proceeding.

A bench warrant is a summons issued from "the bench" (a judge or court) directing the police to arrest someone who must be brought before a specific judge[23] either for contempt of court or for failing to appear in court as required. Unlike a basic arrest warrant, a bench warrant is not issued to initiate a criminal action.[24]

For example, if a defendant is released on bail or under recognizance and misses a scheduled court appearance, or if a witness whose testimony is required in court does not appear as required by a subpoena, a bench warrant may be issued for that person's arrest.[25] In cases where a bench warrant is issued to arrest someone who posted bail and subsequently missed their court date, once they are rearrested and brought before the judge, the judge may raise the bail amount or revoke it completely.[25]

If a law enforcement officer stops an individual with an outstanding bench warrant against him, the person may be detained on the warrant, and may be held in jail until bond is posted or a hearing is held on the warrant. The hearing may result in the court setting a new bail amount, new conditions, and a new court appearance date.[25] If a criminal defendant is arrested on a bench warrant, the court may determine that the person is a flight risk (likely to flee the jurisdiction) and order that person held without bail.[25][26]

An arrest warrant is an "outstanding arrest warrant" when the person named in the warrant has not yet been arrested. A warrant may be outstanding if the person named in the warrant is intentionally evading law enforcement, unaware that there is a warrant out for their arrest, the agency responsible for executing the warrant has a backlog of warrants to serve, or a combination of these factors.

Some jurisdictions have a very high number of outstanding warrants. The vast majority in American jurisdictions are for traffic related (non-violent) citations. The state of California in 1999 had around 2.5 million outstanding warrants, with nearly 1 million of them in the Los Angeles area.[27] The city of Baltimore, Maryland had 100,000 as of 2007.[28] New Orleans, Louisiana had 49,000 in 1996.[29] The state of Texas in 2009 had at least 1.7 million outstanding warrants in the Houston area alone.[30]

Some jurisdictions have laws placing various restrictions on persons with outstanding warrants, such as prohibiting renewal of one's driver's license[31] or obtaining a passport.[32][33]