Arrest Warrants and Search Warrants in California
There are several different types of warrants that a law enforcement officer in California may obtain during the course of a criminal investigation. Understanding the differences between an arrest warrant and a search warrant can allow you to understand your legal rights if you are ever served a warrant.
Arrest warrants allow law enforcement officers to place a specific person under arrest for a specific crime, while search warrants authorize law enforcement officers to search specified locations for specific items.
Arrest Warrants in California
Police in California can place individuals under arrest with or without a warrant. Most arrests executed without a warrant are for conduct that was witnessed directly by the arresting police officer. If there is a lapse in time between the alleged criminal conduct and the arrest, law enforcement officials may request an arrest warrant from the court. When requesting an arrest warrant, law enforcement officials must follow certain protocols.
The procedure for requesting an arrest warrant in California includes:
- Filing a complaint with the appropriate court. The purpose of an arrest warrant is to obtain personal jurisdiction over the person accused of the crime. Most times, this will involve going to the court in the jurisdiction (part of the state) where the crime occurred and requesting a warrant for the accused’s arrest.
- Provide written declaration of probable cause. An arrest warrant may only be issued if there is probable cause that a criminal act was committed by the accused. The law enforcement officer(s) requesting the warrant must back up their allegations with evidence which suggests the accused is guilty of the crime.
- Make a sworn oral statement detailing the criminal offense. The statement supplements the written declaration and helps to fill in gaps in information. The oral declaration may be in person or by phone.
If the judge or magistrate with which the request is filed believes that the law enforcement officer has provided probable cause that a crime has been committed by the accused, he or she will issue an arrest warrant. The warrant is a formal document signed by the judge that permits the law enforcement officials to place a specific person under arrest. To be valid, an arrest warrant must contain certain information, including:
- Criminal offense committed;
- Name of person to be placed under arrest and detained;
- Time and place warrant was issued;
- Signature of the judge or magistrate authorizing the arrest; and
- The amount of bail, if applicable.
If a warrant fails to contain this information you may be able to challenge its validity and the appropriateness of your arrest. A warrant must be proper, which means that it is issued by a court with the authority to do so and that it contains the required information. Arrest warrants, once issued, must be executed within a reasonable amount of time.
Misdemeanor vs. Felony Arrest Warrants
Misdemeanor warrants may only be served between the hours of 6 AM and 10 PM. If the issuing magistrate or judge authorized nighttime service, the warrant may be served at any time. Those accused of a misdemeanor – and arrested pursuant to a warrant – may only be brought before the issuing jurisdiction. Felony warrants may be served at any time of the day, and those accused of a felony may be brought before any jurisdiction, not just the one that issued the arrest warrant.
Warrants may not be necessary, or may be served at any time, if:
- The arrest is made in public;
- The arrest is made while the accused is in custody; or
- The arrest is for a crime that does not require a warrant.
Can Police Enter a Home with Only an Arrest Warrant?
Law enforcement who have obtained an arrest warrant are permitted to enter the home of the individual targeted for arrest. They may also use force to enter if they have reason to believe that the accused is within the dwelling. If, however, an accused is staying as the guest of another person – and not in their own home – law enforcement may not enter the premises to execute the arrest warrant. Law enforcement must obtain a search warrant to enter premises that do not belong to the accused in order to execute the arrest warrant.
Search Warrants in California
Search warrants differ from arrest warrants in that they allow law enforcement officers to enter and search certain locations for specified items or people. Law enforcement officers may request a search warrant from the court in a process that is similar to the request for an arrest warrant. To persuade a judge or magistrate to issue the warrant they must have probable cause to believe that evidence related to a crime – or a person who committed a crime – is held in a certain location.
To be valid, a search warrant must describe with particularity the place to be searched and the person or thing that will be seized, if found. Search warrants must be very specific, and law enforcement officers may not exceed the permissions they are granted in the warrant.
There is an exception, however, for items that are in plain view during a search. Any items in plain view – that is, they are visible without moving or shifting anything such as a door or opening a table – are fair game. If the police enter your home with a search warrant that authorizes them to search for your cousin – for whom they have an arrest warrant – and happen to see marijuana and paraphernalia sitting on the living room table, they can seize the items and use them against you and your cousin even though the warrant is limited to the search for a specific person.
California law also requires law enforcement officers to leave a receipt for any property that is seized while executing a warrant.
Last Updated on December 29, 2021