Chapter 6: Arrest Warrants
Generally
Chapter structure
- Conventional Arrest Warrants
- Ramey Warrants
- Other Warrants
Defined: An arrest warrant is a court order directing officers to arrest a certain person if and when they locate him.[1]
Types of arrest warrants: As discussed below, there are seven types: conventional arrest warrants, Ramey warrants, probation violation warrants, parole violation warrants, indictment warrants, and bench warrants.
Compare Steagald warrants: A Steagald warrant is a combination search and arrest warrant that authorizes officers to enter a home or other structure for the purpose of searching for and arresting a wanted suspect who does not live on the premises; i.e., the home belongs to the suspect’s friend, relative, or other third party.[2] See Chapter 35 Search Warrant Special Procedures (Steagald Warrants).
When a warrant is required: See Chapter 18 Entry to Arrest.
Why seek a warrant? Although the Supreme Court “has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant,”[3] there are several reasons for seeking a warrant, as follows:
Authorization to enter home: The issuance of an arrest warrant constitutes authorization to enter the arrestee’s residence for the purpose of arresting him. See Chapter 18 Entry to Arrest.
Add to warrant database: If the suspect has fled or if officers will otherwise be unable to make an immediate arrest, they may seek a warrant so that it will be added to databases of wanted suspects; e.g., NCIC, AWS (Bay Area), CWS (Los Angeles County).
Stops statute of limitation: The issuance of an arrest warrant constitutes the commencement of prosecution for purposes of the statute of limitations.[4]
Misdemeanor not “in presence”: Under California law (not constitutional law) a warrant is ordinarily required for misdemeanors that were not committed in an officer’s presence. See Chapter 5 Arrests (“In the Presence” Rule).
Good faith rule: If officers are uncertain about the existence of probable cause, they may decide to seek a warrant to obtain a judge’s determination on the issue. And if the court later rules that probable cause did not exist, the arrest will usually be upheld under the “good faith” rule. See Chapter 58 Cost-Benefit Analysis.
Preference for warrants: The courts prefer that officers seek warrants when possible because it is better that “a neutral judicial officer assess whether the police have probable cause to make an arrest or conduct a search.”[5]
When an arrest warrant terminates: Arrest warrants remain in effect until executed or recalled by the court; i.e., they do not become “stale.”[6]
Investigating the warrant’s validity: Officers are not required to investigate the validity of an arrest warrant that appears valid on its face.[7] They may not, however, ignore information that reasonably indicates the warrant had been executed or recalled, or that probable cause no longer exists.[8]
Investigating the arrestee’s identity: An arrest will ordinarily be valid if the name of the arrestee and the name of the person listed on the warrant were the same.[9] But officers may not ignore objective circumstances that reasonably indicate the arrestee was not the person named in the warrant.[10]
Confirming the warrant: To make sure that an arrest warrant listed in a database had not been executed or recalled, officers will ordinarily confirm that it remains outstanding.[11]
Warrants sent by email or fax: A warrant or an abstract sent from one agency to another via email or fax has the same legal force as the original warrant.[12] To see a tentative email protocol, see Chapter 35 Search Warrant Special Procedures (Electronic Search Warrants).
Entry procedure: See Chapter 18 Entry to Arrest.
When warrants may be served
Felony: Felony arrest warrants may be served at any time.[13]
Misdemeanor: Misdemeanor warrants may not be served between the hours of 10 p.m. and 6 a.m. unless (1) the arrest was made in a public place, (2) the arrestee was already in custody for another offense, or (3) the warrant authorized night service.[14]
No suppression: A violation of the time restriction will not result in suppression.[15]
If officers are lawfully inside arrestee’s home: The question arises: If officers are lawfully inside a person’s home after 10 p.m. because, for example, they have been invited in to take a police report, can they arrest an occupant if they learn that he is wanted on a warrant that is not endorsed for night service? See this endnote.[16]
Forms: The following forms pertaining to arrests may be viewed at www.le.alcoda.org. Click on “Forms.” To receive copies via email in Microsoft Word format (which can be edited), send a request from a departmental email address to CCI@acgov.org:
- Ramey Warrant
- Ramey Certificate of Service
- Arrest Warrant (Conventional)
- Steagald Arrest Warrant (Conventional)
- Steagald Arrest Warrant (Anticipatory)
- Out-of-County Felony Arrest: Notice to Arrestee
- Out-of-County Misdemeanor Arrest: Notice to Arrestee
Conventional Arrest Warrants
A conventional arrest warrant is issued by a judge who, based on the filing of a criminal complaint and supporting documents (e.g., declarations, police reports), has determined there is probable cause to arrest.[17]
Felony or misdemeanor: Warrants may be issued for felonies or misdemeanors.[18]
Required information
Basic information: The warrant must include the name of the suspect, the date and time it was issued, the city or county in which it was issued, the name of the court, the amount of bail (if any), and the judge’s signature.[19]
Identification information: The warrant must contain sufficient identifying information about the suspect to make it reasonably likely that officers will arrest the correct person; e.g., his address, occupation, places he frequents, his known associates and the places they frequent, and a description of the vehicles he has been known to drive.[20] The amount of required information will ordinarily depend on what information the officers possess about the arrestee or information they could have obtained with reasonable effort.[21] Before arresting someone on a warrant, officers may not ignore objective circumstances that reasonably indicate the arrestee was not the subject of the warrant.[22]
“Doe” warrants: If officers do not know the suspect’s name, they may be able to obtain a John Doe warrant.[23] Doe warrants must include enough information about the suspect (including a photo, if available) to sufficiently reduce the possibility that someone else might be arrested by mistake.[24] For purposes of tolling the statute of limitations, an arrestee is sufficiently described in a Doe warrant if the warrant lists his DNA profile.[25]
Ramey Warrants
A Ramey arrest warrant may be issued when there is probable cause to arrest the suspect, but prosecutors have not yet filed a criminal complaint.[26]
When used: Ramey warrants are commonly used when officers lack proof of guilt beyond a reasonable doubt (the standard required for charging). By arresting the suspect, officers may be able to obtain additional evidence by, for example, questioning him, placing him in a lineup, obtaining consent to search, or taking fingerprints or DNA.
Felony or misdemeanor: A Ramey warrant may be based on a felony or misdemeanor.[27]
Procedure: A Ramey warrant may be issued by means of physical or electronic documentation as set forth in Penal Code§ 817, as follows:
(1) Prepare declaration: The officer will prepare a “Declaration of Probable Cause” setting forth the facts upon which probable cause is based. The officer may include attachments to the declaration by identifying the attachments and incorporating them by reference; e.g. Attached hereto and incorporated by reference are ________.
(2) Prepare Ramey warrant
Required information: Ramey warrants must contain the following: Name of arrestee, name of court, name of the city or county in which the warrant was issued, a direction to peace officers to bring the arrestee before a judge, signature and title of issuing judge, time the warrant was issued, and the amount of bail (if any).[28]
Address not necessary: Although Ramey Warrants sometimes contain the arrestee’s last known address, this does not constitute authorization to search that address for the suspect; it is merely an aid in locating him.[29] Also see Chapter 18 Entry to Arrest (How to Comply, Entry into arrestee’s home).
Exception: Doe Warrants: An address may be necessary for a John Doe warrant. See “Conventional arrest warrants” (John Doe warrants), above.
Listed address differs: If officers develop probable cause to believe that the suspect lives at a certain address, they may enter the residence to make the arrest even though the address differs from the address on the warrant.[30]
(3) Officer signs: The officer will sign the declaration of probable cause under penalty of perjury by means of a physical or electronic signature.
(4) Submit to judge: The officer will submit the declaration and warrant to the judge in person or electronically.
(5) Confirmation: If the declaration was sent electronically, the judge will verify that all pages that were sent were received and are legible, and that the officer’s electronic signature is genuine.
(6) Judge reviews and signs: If the judge finds that probable cause exists, he or she will issue the warrant by means of physical or electronic signature. The judge will note on the warrant the date and time it was issued.
(7) Judge transmits warrant: If the application for the warrant was made electronically, the judge will ordinarily transmit the warrant to the officer electronically. The warrant that was received by the officer is deemed the “original” warrant.
(8) File certificate of service: After the warrant was executed, officers must file a “certificate of service” with the clerk of the issuing court within a reasonable time after the arrest. See “Forms,” above.
Other Arrest Warrants
Probation violation warrants: Arrest for violating the terms of probation.[31]
Parole violation warrants (Parolee-at-large warrants): Arrest for violating the terms of parole.[32]
Indictment warrants: Based on a grand jury indictment.[33]
Bench warrants: Arrest for failing to appear in court.[34]
Notes
[1] USSC: Steagald v.
US (1981) 451 US 204, 213 [“An arrest warrant is issued by
a magistrate upon a showing that probable cause exists to believe
that the subject of the warrant has committed an offense”].
CAL: Pen. Code§ 813 et seq.;
Lohman v. Superior Court (1977) 69 CA3 894, 903 [“An arrest
warrant issues upon a complaint when a magistrate is satisfied
from the compliant that the offense complained of has been
committed and there is reasonable ground to believe that the
defendant has committed it.”].
[2] USSC: Steagald v.
US (1981) 451 US 204. CAL: Pen. Code§
1524(a)(6); P v. Dyke (1990) 224 CA3 648, 658.
9th CIR: Watts v.
County of Sacramento (9C 2001) 256 F3 886, 889 [“If the
suspect named in the arrest warrant is a guest of the third party,
then, absent exigent circumstances, the police must obtain a
search warrant”]; US v. Litteral (9C 1990)
910 F2 547, 553 [“Thus, under Steagald, if the suspect is
just a guest of the third party, then the police must obtain a
search warrant for the third party’s dwelling”].
[3] QUOTE FROM: Gerstein
v. Pugh (1975) 420 US 103, 113.
[4] CAL: P v.
Robinson (2010) 47 C4 1104, 1111 [“a prosecution for an
offense commences when an arrest warrant is issued and names or
describes the defendant with the same degree of particularity
required for a complaint”].
[5] QUOTE FROM: Steagald
v. US (1981) 451 US 204, 212. USSC:
Illinois v. Gates (1983) 462 US 213, 237, fn.10 [“the
resolution of doubtful or marginal cases in this area should be
largely determined by the preference to be accorded to warrants”];
Wong Sun v. US (1963) 371 US 471, 481-82
[“The arrest warrant procedure serves to insure that the
deliberate, impartial judgment of a judicial officer will be
interposed between the citizen and the police, to assess and
weight and credibility of the information which the complaining
officer adduces as probable cause.”].
[6] CAL: P v.
Bittaker (1989) 48 C3 1046, 1071 [“Once an individual is
arrested and is before the magistrate, the ‘complaint’ is
functus officio” [Latin for “having performed his office”
or “having served its purpose”]; P v.
Case (1980) 105 CA3 826, 834.
[7] CAL: Herndon v.
County of Marin (1972) 25 CA3 933, 937 [“It is not [the
officer’s] duty to investigate the procedure which led to the
issuance of the warrant”].
[8] CAL: Milliken v.
City of South Pasadena (1979) 96 CA3 834, 842 [“But if [the
officer] had actual knowledge that the arrest warrant
did not constitute the order of the court because it had
been recalled, then he could not rely upon the warrant.”].
[9] CAL: Lopez v.
City of Oxnard (1989) 207 CA3 1, 8 [“there is no allegation
the officers arrested someone whose name did not correspond with
the name stated on the warrant”]. OTHER:
US v. Baker (6C 2020) 976 F3 636, 644 [Officer: “If I see a
judge has signed [the warrant] and found probable case, that’s
good enough for me.” Court: “The Fourth Amendment did not require
[the officer] to do more.”]; Powe v.
City of Chicago (7C 1981) 664 F2 639, 645 [“An arrest
warrant that correctly names the person to be arrested generally
satisfies the fourth amendment’s particularity requirement, and no
other description of the arrestee need be included in the
warrant.”]; Wanger v. Bonner (5C 1980) 621 F2
675, 682 [“Generally, the inclusion of the name of the person to
be arrested on the arrest warrant constitutes a sufficient
description”].
[10] CAL: Robinson v.
City and County of San Francisco (1974) 41 CA3 334, 337
[“the police officers did not consider any of the proffered
identification when making the arrest”]; Smith v.
Madruga (1961) 193 CA2 543, 546 [“the arrest was unlawful
if the arresting officer failed to use reasonable prudence and
diligence to determine whether the party arrested was actually the
one described in the warrant”].
[11] OTHER: US v.
Martin (7C 2005) 399 F3 879, 881 [“Police guarded against
that risk [of recall or execution] by checking to see whether the
charge remained unresolved.”].
[12] CAL: Pen. Code§ 850;
P v. McCraw (1990) 226 CA3 346, 349 [“A
warrant may be sent by any electronic method and is just as
effective as the original.”].
[13] CAL: Pen. Code§ 840.
[14] CAL: Pen. Code§ 840.
[15] CAL: P v.
McKay (2002) 27 C4 601, 605 [“compliance with state arrest
procedures is not a component of the federal constitutional
inquiry”]. ALSO SEE: P v. Whitted (1976) 60
CA3 569, 572 [“The limitation on night-time arrest under
misdemeanor warrants is of statutory, rather than constitutional,
origin.”].
[16] NOTE: Although there is no case
law directly on point, the Court of Appeal has pointed out that
the purpose of the limitations on misdemeanor arrests “is the
protection of an individual’s right to the security and privacy of
his home, particularly during night hours and the avoidance of the
danger of violent confrontations inherent in unannounced intrusion
at night.” P v. Whitted (1976) 60 CA3 569,
572. It is arguable that none of these concerns would be
implicated if officers had been invited in.
[17] USSC: Steagald v.
US (1981) 451 US 204, 213 [“An arrest warrant is issued
upon a showing that probable cause exists to believe that the
subject of the warrant has committed an offense.”]. NOTE:
In the federal system, the facts are set forth in a “complaint”
which is a written statement by a federal agent containing “the
essential facts constituting the offense charged.” US v
Bueno-Vargas (9C 2004) 383 F3 1104, 1106, fn.2.
[18] CAL: Pen. Code§ 813 [felony
warrants], Pen. Code§ 1427 [misdemeanor warrants];
In re Walters (1975) 15 C3 738, 747 [“a person charged with
the commission of a misdemeanor may also be arrested pursuant to a
warrant”].
[19] CAL: Pen. Code§§ 815, 815a.
[20] CAL: P v. Robinson (2010)
47 C4 1104, 1138 [warrant must contain “sufficient descriptive
material to indicate with reasonable particularity the
identification of the [arrestee]”].
[21] CAL: P v. Robinson (2010)
47 C4 1104, 1132; P v. Tockgo (1983) 145 CA3 635, 640 [“The
‘reasonable particularity’ required is a flexible concept,
reflecting the degree of detail available from the facts known to
the affiant and presented to the issuing magistrate. Thus, while a
generic description of illicit objects will be held sufficient
where probable cause is shown and no more specific identification
is possible.”].
[22] CAL:
Robinson v. City and County of San Francisco (1974) 41 CA3
334, 337 [“the police officers did not consider any of the
proffered identification when making the arrest”];
Smith v. Madruga (1961) 193 CA2 543, 546 [“the arrest was
unlawful if the arresting officer failed to use reasonable
prudence and diligence to determine whether the party arrested was
actually the one described in the warrant”].
[23] CAL: P v.
Robinson (2010) 47 C4 1104, 1138 [“By its plain language,
[Pen. Code§ 815] allows an arrest warrant to issue
designating the defendant by a fictitious name if the defendant’s
name is unknown.”].
[24] CAL: P v. Montoya (1967)
255 CA2 137, 142 [“a ‘John Doe’ warrant must describe the person
to be seized with reasonable particularity [and] the warrant
should contain sufficient information to permit his identification
with reasonable certainty”]. OTHER:
Powe v. City of Chicago (7C 1981) 664 F2 639, 647 [“While
an arrest warrant may constitutionally use such arbitrary name
designations, it may do so only if, in addition to the name, it
also gives some other description of the intended arrestee that is
sufficient to identify him.”]; US v. Doe (3C 1983) 703 F2
745, 748 [where arrestee was identified only as “John Doe a/k/a
Ed,” the court ruled the warrant was invalid because “the
description did not reduce the number of potential subjects to a
tolerable level”].
[25] CAL: P v. Robinson (2010)
47 C4 1104, 1136 [“a fictitious name and the description of
defendant’s unique DNA profile adequately described defendant with
the particularity required for an indictment, information or
complaint”].
[26] USSC: Payton v.
New York (1980) 445 US 573. CAL: Pen. Code§§
817, 1427; P v. Ramey (1976) 16 C3 263, 275;
P v. Case (1980) 105 CA3 826, 831 [“From a practical
standpoint the use of the ‘Ramey Warrant’ form was
apparently to permit, prior to an arrest, judicial scrutiny of an
officer’s belief that he had probable cause to make the arrest
without involving the prosecutor’s discretion in determining
whether to initiate criminal proceedings.” Quote edited];
Godwin v. Superior Court (2001) 90 CA4 215,
225 [“To comply with Ramey and Payton, prosecutors
developed the use of a Ramey warrant form, to be presented
to a magistrate in conjunction with an affidavit stating probable
cause to arrest.”].
[27] CAL: Pen. Code§§ 817(a)(2),
840.
[28] CAL: Pen. Code§§ 815, 815a,
816; P v. McCraw (1990) 226 CA3 346, 349.
[29] OTHER: US v.
Bervaldi (11C 2000) 226 F3 1256, 1263 [“Nor is it
significant that the arrest warrant listed the 132nd Place
address.”]; US v. Lauter (2C 1995) 57 F3 212,
215 [“Lauter’s address was immaterial to the determination of
whether probable cause existed for his arrest. All an arrest
warrant must do is identify the person sought. Similarly, a change
in address subsequent to the issuance of an arrest warrant is
typically not significant because it does not alter the suspect’s
identity,” edited]; Cerva v.
Fulmer (E.D.Pa. 1984) 596 FS 86, 90 [“In an arrest warrant,
unlike a search warrant, the listed address is irrelevant to its
validity and to that of the arrest itself.”].
[30] OTHER: US v.
Lauter (2C 1995) 57 F3 212, 215 [“Any discrepancy between
the address in the supporting affidavit and the address where
Lauter was ultimately arrested is irrelevant because all an arrest
warrant must do is identify the person sought.”]; US
v. Bervaldi (11C 2000) 226 F3 1256, 1263
[“Nor is it significant that the arrest warrant listed the 132nd
Place address.”].
[31] CAL: Pen. Code§ 1203.2.
[32] CAL: Pen. Code§§ 3060, 3062,
3081; P v. Hunter (2006) 140 CA4 1147, 1153-54
[parolee may be arrested on a “parole hold”]. 9th CIR:
US v. Harper (9C 1991) 928 F2 894, 896
[parole violation warrant authorizes entry; overruled on other
grounds in US v. King (9C 2012) 687 F3 1189. OTHER:
US v. Pelletier (1C 2006) 469 F3 194, 200 [“a
valid parole violation warrant… is adequate to support an
entry into the parolee’s domicile for the purpose of executing the
warrant”].
[33] CAL: Pen. Code§ 945.
[34] CAL: Pen. Code§ 978.5 [“A
bench warrant of arrest may be i