A state does not have authority over a person located in another state. A person wanted for a crime committed in California who is located in Michigan can only be legally arrested by Michigan law enforcement.
To effectuate an arrest of a defendant who is located outside the state, there is a process to “extradite” the defendant back to the state where they are charged with committing the crime. For the extradition to occur there must be cooperation between the two states.
Traditionally, “extradition” is the process of returning a fugitive from one country to another. Treaties between the countries govern the process.
When the process involves rendering a fugitive from one state to another it is referred to as “interstate rendition”. The United States Constitution and federal and state statutes govern interstate rendition.
While international extradition procedures differ greatly from interstate rendition, the rendering of a fugitive between states in the US is commonly referred to as extradition.
Laws Governing Extradition
The Fourth Amendment to the United States Constitution governs the issuance of warrants. Under the Fourth Amendment exists the right against unreasonable searches and seizures and warrants are issued upon a showing of probable cause. If the crime is serious enough and California prosecution wants to find the defendant then an interstate warrant can be effectuated nationally.
The Extradition Clause of the Constitution governs the manner in which extradition takes place among the states. Since each state is considered sovereign over its own territory and the concern arose that criminals would flee from one state to another to avoid prosecution, the Extradition Clause was included. It states:
“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”
Congress has passed laws to further define the circumstances that warrant extradition between states. The United States Code sets forth the requirements to interstate extradition. In addition, the Uniform Criminal Extradition Act (UCEA) sets forth the procedure by which a state may request the surrender of a wanted individual and the manner in which they are surrendered. California adopted the UCEA in 1937.
The California Penal Code, Section 1548, describes the process and procedure for extradition applicable in California.
There are two types of extraditions.
- The first occurs when California has issued an arrest warrant for a person who is now in another state.
- The second type is when a person is arrested in California, but the crime occurred in another state.
The state demanding the presence of the fugitive executes the extradition warrant.
Prior to extradition, a hearing is held to determine that the arrest warrant is valid, that the charges are valid and that the person in custody is the person wanted in the warrant. The fugitive will remain in custody during this process and it can take several weeks before it is determined that the individual will be extradited.
If a fugitive is held in California and another state is seeking to have the fugitive extradited, the person remains in custody until a Governor’s warrant is issued by the other state.
In the meantime, the fugitive held in custody in California has options.
- He may deny the charges and fight the extradition, or
- He may waive extradition and voluntarily return to the state demanding his presence
Although a fugitive may waive extradition and voluntarily go back to the other state, practically speaking, he remains in custody and is transported back to face the charges. If a person fights the extradition he is entitled to a probable cause hearing where he may have an attorney represent him.
Facing Extradition? Get Help Today
If you or a loved one is facing extradition, you have options and we can answer your questions. The Rodriguez Law Group can challenge the extradition and represent you at your hearing. Our experienced attorneys are here to help. Call our office today.